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What is Arrest & Detention

There is legally a world of difference between "arrest" and "detention."

  • Investigative Detention - purely a common law power to hold onto someone for a brief period of time while checks are conducted. There are time limits beyond which a detention effectively turns into an arrest.
  • Arrest - will usually be pursuant to a statutory power exercised under the Criminal Code, authorizing holding onto someone for a longer period of time than detention, including transport to another location, subject to rights to counsel and a bail hearing. 
  • Neither Detention Nor Arrest - not every interaction with police amounts to arrest or detention. Police have the right to ask you a few questions, even if you don't need to answer all of them. But if it appears even implicitly that you can't leave, then it might be a detention. 

Why Challenge Arrest & Detention

Law enforcement powers to arrest or detain individuals are very limited. Arrests are not possible on whims or suspicions. An unlawful arrest or detention can be the start of a series of unlawful domino-like events: (a) unlawful search, (b) leading to unlawful seizure, (c) giving rise to unlawful statement taking, and (d) culminating in unlawful charging. 

The Canadian Charter of Rights and Freedoms provides people subject to illegal arrest or detention with remedies, including exclusion of evidence and staying of charges. 

How to Challenge Arrest & Detention: 4 Winning Pre-Trial Motion Strategies

Liberty is among the most fundamental of all human rights, and its deprival in an arbitrary way is among the worst of human rights abuses. Canada's Parliament and courts have articulated the limited circumstances where someone can be deprived of his or her liberty through arrest or detention. Absent lawful authority, police have no general power to arrest or detain. 

There are a variety of circumstances where police arrest or detention may be unlawful, and your lawyer could bring a pre-trial motion to have the arrest or detention declared unlawful and seek to exclude all resulting evidence. 

1. A search warrant is needed to arrest in a residence

In situations of a high expectation of privacy, police do not get an ancillary search power to perform an arrest. An arrest may be unlawful if performed in a residence without an arrest warrant granting the power to enter the residence. 

2. Racial profiling can't be underlying reason for detention

Racial profiling need not be conscious, and is now well accepted by Canadian court to be a daily reality that visible minorities throughout Canada can be subject to through unwarranted police stops and questioning. While it might be difficult to prove in court, where there is at least circumstantial evidence that the origins of an arrest or detention lie in racial profiling, courts may be inclined to exclude evidence and dismiss charges.

3. A pretext traffic stop can't be used to question or search for evidence of other offences

While police possess broad powers to conduct traffic stops, such as to check licence and insurance details without outward signs of an offence, such stops can't improperly be merely a pretext through which to engage in a probing exploration of suspected criminal conduct. 

4. A pedestrian can't be detained for questioning without cause

Police who pull a cruiser in front of a pedestrian's path, or stand in such a way to block a pedestrian's travel, need a legitimate reason to detain and question that person. Police can't go on fishing expeditions, detaining people they don't like the look of in particular neighbourhoods, hoping they'll discover evidence of some kind of offence. 

When to Challenge an Arrest or Detention

If the police won't release you from custody after a reasonable period of time, the arrest should be challenged immediately either through a bail hearing if charges have been laid, or a Habeas Corpus application if no charges have been laid. 

If you're out of custody, then the validity of an arrest or detention is usually best challenged at trial. An illegal arrest or detention could lead to a variety of remedies, like a stay of the charges because of the inherent illegality of the infringement of your library rights, the exclusion of statements you might have subsequently given, or the court forbidding evidence seized from you to be admitted.