A police officer can legally arrest you without a warrant in Canada, in some instances.
However, a warrant must usually be issued by the court in order for the police to arrest you.
In both cases, you have legal rights under the Canadian Charter of Rights and Freedoms and it’s important to understand what these are.
Arrested vs Detained
Unless a police officer arrests or detains you, you are free to walk away under the law.
If you are arrested without a warrant or detained, whether it is legal or not depends on whether the police officer had “reasonable grounds” (more about this below).
If you are arrested
If the police are issued a warrant by a Justice of the Peace or Judge, they can arrest you because the grounds for arrest have already been reviewed and determined to be reasonable.
If there is no arrest warrant, reasonable grounds to charge you with a criminal offence must be assessed by the police officer at the time of the arrest.
According to the criminal code, a law enforcement officer can only do this with:
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
If you are arrested, you will likely be handcuffed and taken into custody. It is important not to resist arrest or you could face additional charges.
At this point, you have the right to:
- Remain silent
- Be told why you’re being arrested
- Talk to a lawyer
The police have a right to search you in a reasonable manner. With arrests, a more thorough search can be conducted than if you are simply detained.
A search of your person can be conducted, along with what you’re carrying and your car if you were arrested there.
If you are detained
If the police stop you and provide reasons why they believe you are legally obligated to stay with them and comply with their requests, you are detained.
Under the Charter, the police must provide a reason to detain you and, if they do, you are not free to leave.
You will need to stay with the police officer(s) until they say you can leave, though this should only be for a short while.
Again, in order to detain you, the police must have reasonable grounds to believe you have been involved in a crime.
You have the same rights as if you were arrested and the police can search you if they detain you as long as they conduct their search in a reasonable manner.
They have the right to pat you down and check that you are not carrying a weapon that could endanger them but they cannot empty your pockets or bag.
Reasonable Grounds
This is a very important term in the Canadian justice system. It protects the public from being harassed and unjustly stopped, detained and arrested; and it also protects the police from being sued.
An officer in Canada can only arrest you if he or she has “reasonable grounds” to believe that you are committing a criminal offence, have committed an offence, or are about to commit an offence.
Suspicions or hunches are not enough. They need to be corroborated by factual evidence to provide both objective and subjective grounds for probable cause.
This depends on the circumstances as perceived by the police officer, taking into account their training and experience, rather than on the actual facts that may come to light later.
The type of “evidence” that corroborates suspicions includes:
- Observations that suggest criminal activity is taking place or has taken place (e.g someone fleeing the scene or behaving suspiciously in a car)
- Observations based on police experience (e.g. recognizing tools used for particular crimes or gang signs)
- Witness, victim or informant information
- Circumstantial evidence (such as a shell casing)
Providing these grounds are met, the law enforcement officer can make a valid arrest. He or she must then inform the person taken into custody of their legal rights.
Many mistakes are made with these procedures. For instance, a police officer can make an arrest in good faith that there is probable cause but a judge later determines that this was not the case.
This can and does lead to evidence being thrown out and charges being dropped for criminal offences in Alberta.
What can you do if you are arrested?
Many of the legal terms used in the process of arresting or detaining someone, such as “reasonable grounds” and “reasonable manner”, are deliberately vague.
This gives the police fairly wide powers of interpretation.
However, these powers do not invalidate your own legal rights under the Charter of Rights and Freedoms.
Often, it requires a skilled criminal defence lawyer to demonstrate that your rights were violated or that police did not follow the correct procedure.
It can be the difference between being charged and convicted and being released because the charges are dropped.
Don’t take any chances if you are arrested. To arrange a free, no-obligation consultation with us, call 403-978-6052 or email us here.
