Essay on Detention and Arrest

Introduction

The Criminal Code specifies when a suspect may be arrested. In general, the police must have reasonable and probable reasons to suspect a person is committing a crime. When a person is detained or arrested, the Canadian Charter of Rights and Freedoms applies to some privileges (Brantingham et al., 2017). There have been many cases where the Canadian police perform the street check, detain citizens unlawfully based on their personal opinions, and charge them for different offenses than what they were officially charged with. This paper seeks to explain the rights of people when they are detained and arrested by police. It also elaborates on the judge’s decisions on cases where the police have violated the laws of detention and arrest on people. We shall refer to the Regina v. Lee case, where the accused was stopped for speeding but ended up being charged with possession of drugs which is a breach of Section 8.

Regina v. Lee case

In Regina v. Daniel Yet-Wai Lee, the Chinese immigrant was detained following a motor vehicle stop for speeding. The constable conducted an unlawful search in his pockets, where a crack pipe and a paper flap containing heroin were located. He then searched his vehicle. This search uncovered two cell phones, 14 crack cocaine, 16 flaps of powered cocaine, two flaps of heroin, and $1810 cash. They located these items in various bags in the vehicle. The defendant challenged the three-year sentence for possession of heroin for trafficking, cocaine for trafficking, and possession of a prohibited firearm. The charges pressed against the appellant were different from what he was initially arrested for, speeding, which is a breach of section 8.

Detention and Arrest

In the absence of grounds for legitimate detention, street checks entail stopping people in public areas, asking them for identifying information, and entering that information into a police database. Many locations across Canada now perform street checks without any regulating laws, rules, or regulations. Instead, police officers claim that supposed common law rights authorize the activity or that no police powers are being exercised because the subject is not being held (Gorman, 2020). Even in locations where laws have been enacted, there are still questions about the grounds for performing a street check and how they are carried out. In the journal of Grewcock & Sentas (2019), in the case of R. v. Lopez-Gomez, Judge Bagnall said, “Since there were no grounds for his arrest at that point, Mr. Lopez Gomez was in fact free to leave without identifying himself. He could lawfully have indicated to the officer that he did not wish to produce identification and he could have walked away, without any consequence in law at all”.

Apart from unlawful searches on street checks, recently, street checks have become the subject of several legal disputes and press articles across Canada. Some believe that street checks are done biased, raising issues about the practice’s constitutionality. Others say that street checks are a valuable investigative tool that helps to keep the public secure (Bilefsky, 2019). The discriminatory manner in which police officers perform street checks is one of the issues raised by street check procedures. Young guys from racial minority groups are the most commonly targeted by discriminatory police actions. Thus their chances of being stopped for a street check are not equal for everyone. Discriminatory policing has a significant impact on both individuals and communities.

Furthermore, young people’s rights under the Charter and the Youth Criminal Justice Act are violated during street inspections (Inculet, 2020). The Ontario Regulations appear to have incorporated measures to remedy some of the Charter violations, although they were approved without distinguishing between juvenile and adult street check processes. In reality, it appears that they took no attempt to evaluate whether the provisions of the Youth Criminal Justice Act were being violated. Even where the Regulations claim to remedy specific Charter violations, they fall well short of addressing the pervasive violation of the Charter during street check operations. When a young person is the subject of a street check, the only obvious step ahead is to outlaw the practice. The recommended measures early aim to guarantee that street checks do not infringe on individual rights or extend police authority unilaterally. In the case of young individuals subjected to street inspections, it is suggested that the only reasonable next step is to abolish the practice.

According to the findings of an independent study, random street checks, or carding, should be outlawed since there is little evidence that the practice effectively decreases crime and disproportionately affects people of color. The study was written by Court of Appeal Justice Michael Tulloch, commissioned by the former Liberal administration in 2017 to evaluate a new provincial law on carding, which involves halting and recording people who aren’t suspected of committing a crime (Cromwell & Gelinas-Faucher, 2018). The rule detailed the circumstances in which cops might stop someone and ask for their information, as well as barring arbitrary stops, which Tulloch believes should be expressly mentioned in the regulation. The law also included new rules to regulate those encounters in the law, including a requirement that the officer advises the subject that they are not required to disclose identifying information. Many other areas, according to Tulloch, have not seen an uptick in criminal activity as a result of the change in arresting procedures. “There is little to no evidence that the advantages of a random, unfocused gathering of identifying information exceed the societal cost,” he added, given the high social cost of practices that has yet to be definitively shown to reduce or solve the crime. It is recommended that randomly stopping people and collecting their identifying information to create a database for intelligence purposes be phased out in those jurisdictions that still use it.

When evidence or circumstances exist that indicate a crime has been, is being, or will be committed, an officer has reasonable suspicion. Investigators can hold, frisk, and interview the person or individuals they suspect if they have probable doubt. In many situations, reasonable suspicion is based on likelihood rather than perfect certainty. Officers can use reasonable suspicion to prevent crimes from happening, which means they can stop and temporarily hold someone if they think they are involved in illegal conduct.

Under the fourth amendment, the United States can stop and detain someone. According to the Constitution, a law enforcement officer must justify a stop based on more than a mere suspicion or hunch (Roziere & Walby, 2019). The termination must be explained by a specific and articulable fear of criminal behavior. A profile can be a valuable tool in classifying and assigning clear significance to seemingly harmless conduct when establishing and articulating reasonable suspicion. However, each officer’s decision to hold someone must be based on the specific circumstances available at the time of the stop, as well as the officer’s training and expertise. Like prosecutors and judges, police officers require a certain amount of leeway to act, including the ability to work on their instincts. Even more than judges and prosecutors, police officers must act swiftly and without all necessary facts. They frequently must draw on experiential wisdom that may not be conveyable in words that satisfy a trained jurist. Innocent people’s rights are protected and criminals apprehended.

In the Regina v. Lee case, the main question, in this case, is whether the accused was adequately held, allowing the searches to take place on him and his car. There is no doubt that once the computer findings were received, Cst. Glendinning intended to hold the accused to investigate whether or not he was abiding by the terms of his bail order. The subsequent detention had nothing to do with the traffic stop for a speeding violation—unfortunately, Cst. Glendinning had no cause to think that the accused was violating his restrictions, justified or not. It violated section Article 8 of the Charter. According to the evidence presented to the judge, there was no continuing criminal offense to which the charge could be linked. During her testimony, the constable never claimed to have such a notion. The accused’s imprisonment was illegal and arbitrary in the absence of articulable cause or reasonable grounds. The accused had the right to walk away from the constable and do whatever he wanted because the detention was illegal. He had every right to go to his car and dial his lawyer’s number. More significantly, Cst. Glendinning had no legal right to physically prohibit the accused from going away unless there was the articulable cause or legitimate reasons for his detention.

The basic rule is that if police have probable cause to search a vehicle (cars, trucks, motorbikes, bicycles, or boats), they can do so without a warrant. In this case, probable cause implies a good chance that contraband or other criminal evidence is currently inside the car. If the alleged offender is within reach of the automobile when the police perform the search, the police may be permitted to examine the vehicle’s passenger cabin. All containers (open or closed) and storage places (glove box, console) are included in the passenger compartment, not the trunk (Gallini, 2020). When you’re arrested somewhere else, like on the street or at the mall, an officer can’t search your home or car. A geographical link between the arrest and the search is required to justify the police actions to search the accused as a requirement to arrest them. The law enforcement agency has broad authority to search the detained individual and the area under their immediate control. They can detain you in a fashion that allows them to retrieve evidence if they have reasonable reasons to suspect you have proof in your body related to the offense for which you are being arrested. If you give them “informed permission,” the cops can search you. This guideline indicates that you are aware of the potential implications of the search and agree to allow them to search you. You must limit the scope of the investigation to what you have decided. The cops must explain why they want to search you.

On the other hand, the police have to provide the reasons they know about when they seek your approval. If the police have reasonable grounds to believe that you are involved in a crime and need to hold you to investigate, they have limited rights to search you. If they think their safety or the safety of others is in jeopardy, they might conduct a precautionary “pat down” search for firearms.

When the detention is illegal, the standard law rules permitting a protective pat-down search of a suspect during investigative custody do not apply. About Regina v. Lee case, this accused’s imprisonment was unconstitutional. Even if the accused’s detention had been legal, we would have been concerned about the legality of searching the accused’s pockets. That search went beyond the allowed precautionary pat-down search during investigative detention, such as the police were doing with this suspect. The fairest conclusion to take from the facts presented before the judge is that the police searched the accused’s pockets for evidence that would incriminate him in a crime involving his bail terms.

The officer did not search the vehicle for safety considerations. The accused was handcuffed at the time the officers inspected the car. As he awaited transfer from the site in a police van, he was plainly under the custody of many police officers. Officer safety was not a legitimate concern under the circumstances. The scope of the vehicle search supports this judgment. The presence of the drug dog indicates that the cops were hunting for more narcotics in the car (Gallini, 2020). Mr. Justice Martin in R. v. Moran said, “Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, as a general rule, he has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.”

Many individuals think that if the police fail to provide Miranda warnings to the detained person, the case will be dismissed. Miranda says that if the police interview an in-custody suspect and intend to utilize any of her replies as evidence, she must be given a warning. If the police do not give you a Miranda warning, nothing you say in response to their interrogation can be used against you in court (Jochelson et al., 2020).

In Regina v. Lee case, the evidence discovered from searching the accused and his car should be excluded, according to the defense, since the police failed to honor the right of counsel of the accused. This method, according to the judge, is logically unsound. Firstly, they did not find the evidence in question due to denying the right to counsel. It was seen as a consequence of two searches that either was or were not constitutionally acceptable. Second, assuming that the accused was arrested correctly or detained, the circumstances justified the judge’s delay in granting him the chance to summon a council was warranted. In this aspect, the judge acknowledged that Cst. Glendinning was legitimately concerned about the accused’s probable assault. Her worries stemmed from the accused’s mental condition, his behavior when she initially inquired for his driver’s license, his anxiety, and his extreme physical presentation after he was forced out of the vehicle. Her concern was, in my opinion, legitimate from an objective one. In these circumstances, the constable was within his rights to put the accused’s right to call his counsel on hold until the backup unit arrived. The issue and the accused would be “under control” once cops arrived to help her. It was just a matter of minutes until the predicted delay occurred. In the circumstances, this delay was not excessive, and it came far short of a violation of article 10(b) of the human rights regulations.

Conclusion

Under Section 8, anyone has the right to freedom of unlawful detention and arrest, as well as unwanted searches. The topic of whether searches are reasonable in various contexts, as well as the ancillary matter of whether evidence collected during investigations can be used at trial, has been addressed in court judgments. Whereas street checks are necessary to curb criminals, the police have often assumed the law and violated human rights. Many people haven’t realized when the police have breached the human rights charter when they are arrested and charged for different cases than they were initially arrested for. A search is typically considered justified only when the law allows and terms appropriate, and the investigation is conducted reasonably. Section 8 of the Constitution safeguards the public’s reasonable expectation of privacy from government interference. Therefore, the exception to section 8 is when the right to privacy is not violated in the process. Furthermore, a lower threshold of reasonableness will result from a reduced expectation of privacy.

References

Bilefsky, D. (2019). What You Need to Know about the Huawei Court Case in Canada. The New York Times.

Brantingham, P., Brantingham, P., & Kinney, B. (2017). Criminology in Canada: the context of its criminology (pp. 360-376). Hoboken, NJ: John Wiley & Sons.

Cromwell, T., & Gelinas-Faucher, B. (2018). William Schabas, the Canadian Charter of Rights and Freedoms, and International Human Rights Law. Arcs of Global Justice: Essays in Honour of William A. Schabas (OUP 2018), University of Cambridge Faculty of Law Research Paper, (29).

Gallini, B. R. (2020). Suspects, Cars & Police Dogs: A Complicated Relationship. Washington Law Review, 95(4), 1725.

Gorman, W. K. (2020). The Constitutional Stopping of Motor Vehicles in Canada and the United States: A Comparative Analysis. Ct. Rev., 56, 100.

Grewcock, M., & Sentas, V. (2019). Rethinking strip searches by NSW Police.

Inculet, C. M. (2020). Police Detectives in Canada. Electronic Books In Print.

Jochelson, R., Ireland, D., Ziegler, R., Brenner, E., & Kramar, K. (2020). Generation and deployment of common law police powers by Canadian Courts and the double-edged Charter. Critical Criminology, 1-20.

R. v. Lee, 2006 BCPC 517 (CanLII), <https://canlii.ca/t/1q3bz>, retrieved on 2021-07-07

Roziere, B., & Walby, K. (2019). Police militarization in Canada: Media rhetoric and operational realities. Policing: A Journal of Policy and Practice, 13(4), 470-482.