Processes of Criminal Law: Before the Trial

Processes of Criminal Law:Before the Trial

Law 12 Mr Laberee

Apprehending suspects

Apprehension occurs when a police officer has reasonable and probable grounds to believe that an offence has been committed

To apprehend a suspect, a police officer has 3 choices:1. Appearance Notice (less severe crimes)2. Arrest3. Warrant for Arrest

Appearance Notice

states the name of accused, the charge against the accused, and time/place of court appearance

Is issued for summary convictions, hybrid offenses, or less serious indictable crimes when the officer believes that the accused will appear on the specified date

to issue, police must swear an Information before a judge, presenting their reasonable grounds for believing the suspect committed the offense

Arrest

• Used for more serious indictable offenses• Can occur without a warrant if there are

reasonable grounds to believe an offense has been, is being, or is about to be committed

• If done without a warrant, police must swear an Information

• If a suspect resists arrest, the police are allowed to use as much force as necessary to prevent escape

• However, police are criminally liable for use of unnecessary force

Warrant for Arrest

Used when police can show that the accused likely will not voluntarily appear in court (otherwise, a summons is issued, ordering the accused to appear in court on a certain date)

Generally used when police don’t know the whereabouts of a suspect; the warrant stands until the suspect is brought into police custody

Citizen’s Arrest

Citizens have the same rights as police when it comes to arrests

That is, if a citizen sees a crime committed, they are permitted to detain them for arrest

They are also allowed to use “minimal necessary force” in doing so

Discouraged by police because of the dangers to the citizen

They citizen can be sued by the suspect if the suspect feels they used excessive force

DETENTION - RIGHTS

If DETAINED, a citizen must be given: Reasons for detention Advice to retain counsel

NOTE: A person who voluntarily submits is not owed these procedures

DETENTION - RIGHTS

Police officers during detention can only search for the following purposes: SAFETY – quick pat-down for weapons DRUGS, ALCOHOL – limits to this (usually

must obtain warrant if police wish to use as evidence towards charges)

If detention is illegal (police continue to question, search or detain), citizen may apply to Complaints Commission for investigation

ARREST - RIGHTS

Upon arrest, police officers must make the following statement: You have the right to retain and instruct

legal counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence, you can contact Legal Aid for legal assistance. Do you understand? Do you wish to telephone a lawyer now?

ARREST - RIGHTS

Other rights that police need to inform charged of: Right to remain silent

Rights must be read when accused is in capacity to understand (i.e.- sober), and in language that accused understands (through interpreter, if necessary)

Police must stop questioning the moment the accused takes advantage of their right to legal counsel

ARRESTS – RIGHTS OF POLICE Police have the right to search the accused

upon arrest for purposes of: Locating and securing evidence related to the

crime Removing items that could be used to escape or

create violence Securing items not related to crime

Police have right to move accused to police station

Police have right to do full searches, including body cavity search (need to be justified)

ARRESTS – RIGHTS OF POLICE Police may fingerprint and photograph

accused IF CHARGED WITH INDICTABLE OFFENCE

Accused under arrest has right to refuse: Participation in a suspect line-up Participation in a polygraph (lie detector) test Submission of blood, urine, hair or breath

samples (except in impaired driving offences)