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Arrest and Charge
The Canadian Criminal Code
There are many ways you can get in trouble with the police, and with the justice system, but there are only a finite number of criminal charges spelled out in the Criminal Code. For you to be charged under the Code, whatever it was that you did (or that it is alleged that you did) has to fall into one (or more) of the categories of "offences" listed in that book.
You will sometimes find references to specific (numbered) sections of the Code in the information throughout this site. If you are interested in reading the wording of the section for yourself, go to the statutes or sources pages. They will show you various ways to see the actual wording of the Code, either in print or on-line.
Before we go any further, note that the information in these pages concerns criminal law, and offences under the Canadian Criminal Code. Other federal statutes (such as the Controlled Drugs and Substances Act) also create criminal offences, which are dealt with in generally the same way.
It is also possible to offend against provincial laws such as, for example, a provincial Motor Vehicle Act. Many of these provincial offences are dealt with by the courts in a similar way to the more minor criminal offences, so much of our information will still be useful. It is also worth referring to the provincial Offence Act or equivalent legislation for the province in which the charge was laid. Again, follow the links on the statutes page.
Most of the information we give applies all across Canada, because the Code is federal law. Some of the material, though - mainly where it deals with the specifics of the court system or sources of legal help - describes the set-up in British Columbia, and there may be some differences in other provinces.
For obvious reasons, we concentrate on the parts of the criminal process that are more likely to be encountered by someone without a lawyer. The information offered is only intended to make the system a little clearer to someone in that position. Once again, we strongly suggest that professional assistance be obtained, if at all possible. At the very least, you should also visit the local law library and read other, more complete materials.
So how might you find yourself charged with a criminal offence? How does the process get set in motion?
Types of offence
Offences are divided into two broad types: "summary" and "indictable". The part of the Code that describes the offence also tells you which type it is. Summary offences tend to be less serious ones, indictable more serious.
For a person accused of an offence, the main differences are to do with how and where trial will take place (if it comes to that), whether there will be a preliminary inquiry first, and how serious the penalties can be.
Anyone who believes you have committed an indictable [s.504] or summary [s.788] offence can fill out a form called an "Information", present it to a Judge or a Justice of the Peace and swear to the truthfulness of their complaint. In practice, the person writing out and swearing to the Information is usually a police officer, rather than just a member of the public. The Judge or Justice then decides if you should be made to come and answer the accusation that has been made. If so, he or she will issue either a summons, or a warrant for your arrest [s.511].
Summons
A summons is usually delivered personally by a police officer. It tells you what the charge is, and when you must appear in court to answer it [s.509]. If the offence charged is one that can be proceeded with by indictment, you may also be told to go to the police station for finger-printing. Failure to show up for finger-printing can lead to a warrant for your arrest being issued [s.510].
Arrest
It is possible, under some circumstances, for an ordinary person to make an arrest, without a warrant [s. 494]:
- if they find someone committing an indictable offence;
- if they see someone apparently fleeing from lawful pursuit after committing a crime; or
- if they find someone committing any criminal offence on or against their property.
The person arrested must be handed over straight away to the police.
The police, of course, have wider powers of arrest [s.495]. Police officers can arrest in the same circumstances as for the 'citizen's arrest' above, plus:
- if they believe someone is about to commit an indictable offence;
- or find someone actually committing any crime;
- or if they believe there is a warrant out on the person.
For less serious crimes, an officer will generally only arrest where there are concerns about establishing the identity of the suspect, avoiding the loss of evidence, preventing further criminal activity, or ensuring the person will show up in court for a hearing. If none of these matters is a serious concern, the officer will usually issue an appearance notice as an alternative to arrest [s. 496].
The police have the right to search someone being arrested. The main justifications for this are to check for weapons, and for evidence of the alleged offence.
Police can't arrest someone on mere suspicion, or just to help with an investigation. Still, it is quite legitimate for them to question anyone, and even to ask the person to accompany them - voluntarily - to the station.
If there is an actual arrest, the person arrested must be told the reason, and must also be told about his or her right to talk to a lawyer. If the person asks to speak to a lawyer, the police must if possible make a telephone available, and must not carry on questioning until there has been a reasonable opportunity to use it, and to get legal advice.
Under provincial laws, when stopping a motor vehicle, the police have the right to demand certain information. Generally, though, anyone under arrest has the right to say nothing. Insisting on this right is not a sign of guilt, and no blame or suspicion is to be attached to it. The Golden Rule is to get advice from a lawyer as soon as possible, and before talking to the police.
Under some circumstances, the lawyer may recommend making a limited statement. For example: someone who is a juvenile may want to let the police know this quite soon; and giving personal I.D. information (name, address, occupation, and so on) may help to get a release by appearance notice.
Further Reading:
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When Police and the People Meet...
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Your Rights on Arrest
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Search Incident to Investigative Detention ('Criminal Focus' paper, .pdf format)
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FIRST LINE CRIMINAL LAW INFORMATION