Month: February 2025

Patrick J Ducharme

Where a person is detained for a search, as in the case of a body search incident to arrest, the detainee has the right to be informed of the right to counsel under s. 10(b) of the Charter. But, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. They are required to suspend the search only when the lawfulness of the search is dependent on the detainee’s consent or where the statute gives a person a right to seek review of the decision to search.1
Recent Supreme Court of Canada cases have tightened the available avenues of challenge to evidence based on a failure of the authorities to provide rights to counsel. In R. v. Sinclair2 the accused was arrested for murder. In due course he was advised of his rights to counsel, and, in fact, spoke by telephone with his counsel twice. After speaking with his counsel, however, he was interviewed by a police officer for several hours.
Continue reading “Right to Counsel on Arrest”

Patrick Ducharme

The Supreme Court of Canada has struggled with the issue of whether every unlawful arrest will constitute a breach of the guarantee to protection against arbitrary detention in s. 9 of the Charter. It was the court’s decision in 1989 that if an officer honestly but mistakenly believes that reasonable and probable grounds exist and there is some basis for that belief, then the arrest, although subsequently found to be unlawful, is not arbitrary.
Continue reading “Arrest and Arbitrary Detention under s. 9 of the Charter”

Patrick Ducharme

If a person has been arrested without warrant by a peace officer for an offence that is punishable by imprisonment for five years or less the officer in charge at the police station or another peace officer shall, as soon as practicable, release the person with the intention of compelling that person’s appearance by way of summons or promise to appear in court at a specified date and time.1 The “officer in charge” may release the person on entering into a recognizance without sureties in an amount not exceeding $500.
Continue reading “Release of Arrested Persons”

Patrick J Ducharme

An arrest is the compulsory restraint of a person. Touching the arrestee is not required if the arrestee submits to the restraint of his liberty. Arrests may be made by use of reasonable force or by words or a restraint of liberty that is accompanied by submission. If touching is not sufficient, and reasonable force is necessary, then the use of force is permitted.1
Continue reading “What Constitutes an Arrest?”

Patrick Ducharme

A peace officer may not arrest a person without warrant for a summary conviction offence, a hybrid offence or an absolute jurisdiction offence unless it is necessary to do so having regard to the need to establish the identity of the person, to secure or preserve evidence, or to prevent the continuation or repetition of the offence or the commission of another.1 Although a peace officer is deemed to be acting lawfully and in the execution of his duty, if he disregards the requirement not to arrest in these circumstances, it may lead to a remedy pursuant to section 9 of the Charter as an arbitrary detention.

The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

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Patrick Ducharme

Even if an accused successfully challenges the constitutional validity of an arrest warrant a peace officer that arrests the accused on a warrant, that appears valid on its face, acts in the execution of her duty.

The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.

Subscribe to Patrick Ducharme's Youtube Channel

Patrick J Ducharme

Police officer conduct is considered to be lawful when it falls within the general scope of a duty imposed on the officer, either by statute or at common law. The officer’s actions, even if they interfere with liberty or property, must be necessary for carrying out the particular police duty and must also be reasonable in the circumstances. A peace officer that acts outside his powers does not act within the course or execution of his duty in respect of charges of obstruction, resistance, assault, disarming or murder. A peace officer acting outside his powers may himself be subject to criminal charges.
Continue reading “Execution of Duty”

Patrick Ducharme

A peace officer must orally identify herself before entering a private residence, unless there are exigent circumstances. A proper announcement is necessary even when the door is open, unless it can be said that the open door, in all the circumstances, represented an express or implied invitation to the peace officer to enter. Otherwise, the peace officer becomes a trespasser.1 A Judge who authorizes a peace officer to enter a dwelling house may also authorize the peace officer to enter the dwelling house without prior announcement if the Judge is satisfied, by information on oath, that there are reasonable grounds to believe the prior announcement of the entry would expose the peace officer or other person to imminent bodily harm or death or result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.2 Section 529.4 provides as follows:
Continue reading “Proper Announcements”

Patrick Ducharme

Either a Judge or Justice may issue a warrant authorizing a peace officer to enter a dwelling house for the purpose of arresting a person. The issuing judicial officer must be satisfied that the person will be present in the dwelling house.1 Arrests within a dwelling house require additional authorization in the form of a warrant, or, exigent circumstances.
Continue reading “Entry into Dwelling Houses with Warrant”

Patrick J Ducharme

…The trial Judge noted that “the connection of the search to the arrest is not disputed” (para. 27).  Notwithstanding Berger J.A.’s view to the contrary, we conclude that the trial Judge made no error in concluding that the search was properly incidental to arrest, and did not violate s. 8 of the Charter. 
Continue reading “Lawfulness of the Search Incident to Arrest “