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Véronique Robert June 28, 2012
It should come as a surprise to no one that police officers are accorded the power to detain and arrest people . These powers, however, are bounded by the criminal code and by the Canadian Charter of Rights and Freedoms.
These days, in the tumultuous times we are living in, anyone who complains of an arbitrary detention or arrest is confronted with article 31 of the Canadian criminal code.
Like magicians pulling a rabbit out of a hat, supporters of the forces of law and order believe that they have found irrefutable support for the behavior of police officers that seems at face value to be unjustified. (Unjustified, not unjustifiable – every case must be considered on its own.) I am referring in particular of the arrests made at Ile Ste-Helene during the weekend of the Grand Prix F1 and of the mass arrests made on the bus coming back from Victoriaville.
Because the concept of a preventative arrest does not exist in Canadian law, police invoked article 31 of the criminal code at the time they arrested a group of people at Ile Ste-Helene. I am drawing this information from a description of an arrest published on the website of the Committee Opposed to Police Brutality.
The director of the Montreal Police Service, Marc Parent, also made reference to article 31 to justify what have been newly called, “preventative arrests” during a press conference to explain the 130 arrests made during the weekend of the Grand Prix.
For a jurist, it is astonishing to hear police officers use article 31 to claim authority for their actions from article 31. It is a piece of law that is rarely employed, not very useful, and uninteresting. Really, it is article 495(1) of the criminal code that establishes rules for arrests without warrants.
The Now-Famous Article 31 of the Criminal Code
The criminal code – which, in effect, codified common law principles that had long since been in existence – includes Article 31, which allows police to arrest citizens who they have witnessed committing a criminal act. But article 31 does not allow police to arrest citizens who they suspect are about to commit a crime. This is the verdict given in the 1998 court case, Brown v. Durham Regional Police Force.
Police officers must always have a reasonable and probable belief that a crime has been committed, is being committed, or is immediately about to be committed before they can arrest a citizen without a warrant.
Article 31 has nothing to do with this fundamental rule that is the basis for the laws of our state.
Still with Brown v. Durham Regional Police Force: the only kinds of imminent crimes that give police authority to arrest someone are those that convey reasonable and probable belief that a crime is imminent. We therefore return to the powers of arrest without warrant and to article 495(1), since it is a question of an infraction that is about to be committed. What infraction? What crime? The police officer must know, and must inform the person being arrested. The Charter also stipulates that anyone arrested must be informed without delay of the reasons for his or her arrest. Just as a police officer cannot say, “I am arresting you for a crime,” neither can a police officer say, “I am arresting you for an imminent crime.”
This principle is so strong that article 495(1)B forbids police officers to perform an arrest without warrant for any summary infraction, unless the person is caught in the act. Being arrested for an imminent breach of the peace is therefore possible, in accordance with article 31, only if the police officer has reasonable and probable motives to believe that a specific infraction with take place immediately, and this infraction must be a criminal offence, and not a summary offence.
Suspicion, feeling, intuition, conjecture, or possibility of an imminent crime is not enough. When the Montreal Police Service informs the populace, via its Twitter account, that people being arrested are those behaving suspiciously, it is making incorrect decisions about law and it is, moreover, admitting to performing arbitrary arrests.
Reasonable and probable motives allowing for arrest
What does the legal concept of “Reasonable and probable motives” mean? It means, “a person in the place of the police officer would be able to conclude that there were, in effect, reasonable and probably motives to proceed with the arrest” .
The only legal weak spot in this law is the concept of “investigative detention.” When a person is detained under investigative detention, there are less stringent criteria for “reasonable and probable motives to believe that a crime is being committed or is about to be committed.” Here we talk of “precise motives,” of “reasonable suspicion,” of “probable cause,” of a “constellation of suspicions.” We also talk about “articulable cause,” but again, the person is detained temporarily, within the framework of an investigation, and the precise nature of the crime must be communicated to the person being detained, along with the nature of the link between the crime and the person.
Investigative detention, like any other form of detention, is subject to the Charter’s fundamental right not be arbitrarily detained.
Thus, in Mann, the Supreme Court explained that this kind of detention “must be reasonably judged to be necessary, following an objective consideration of the circumstances underlying the police officer’s belief that there is a clear link between the individual being detained and a criminal act that has recently happened or is in progress” .
There is no question about detaining people because they are about to go sing, “La Loi Speciale” (translator’s note: a protest chant) at a sports venue. Furthermore, when a person is being put under investigative detention, the police officer is not automatically entitled to search the person . There is also no question of searching someone wearing a red square because their bag might contain a can of spray paint.
The law is clear: No one may be detained, arrested, or searched arbitrarily. This is what the Charter says and the Charter is the supreme law, taking precedence over all other laws of the land.
Also see, “Les arrestations préventives sont illégales et illégitimes,” by Marie-Ève Sylvestre, law professor at the Université of Ottawa, in Le Devoir (http://m.ledevoir.com/societe/actualites-en-societe/352178/les-arrestations-preventives-sont-illegales-et-illegitimes).
Also see “À propos des arrestations, détentions, et fouilles preventives” on the Facebook page of Moise Marcoux (https://www.facebook.com/notes/mo%C3%AFse-marcoux-chabot/%C3%A0-propos-des-arrestations-d%C3%A9tentions-et-fouilles-pr%C3%A9ventives/2840127301231)
 Citizens do as well, mind you. Catch someone in the act? You have the right to arrest them. It is so written in article 30 of the Criminal Code of Canada.
 Storrey (http://www.canlii.org/fr/ca/csc/doc/1990/1990canlii125/1990canlii125.pdf), Supreme Court of Canada, 1991
 Mann (http://www.canlii.org/fr/ca/csc/doc/2004/2004csc52/2004csc52.pdf), Supreme Court of Canada, 2004, para. 34
 Mann (http://www.canlii.org/fr/ca/csc/doc/2004/2004csc52/2004csc52.pdf), Supreme Court of Canada, 2004, para. 40
Translated from the original French by Translating the printemps érable.
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