Arrests or Summons

How It Works

Arrests

1. Definition and Purpose:

An arrest is the act of law enforcement taking a person into custody based on an objective belief that the person has committed a crime, based on evidence gathered. The primary purposes are to ensure that the accused person appears in court, to prevent further criminal activity, and to protect public safety.

2. Types of Arrests:

  • Arrest with a Warrant: A judge or justice of the peace issues an arrest warrant based on a sworn affidavit from law enforcement detailing the evidence and grounds for the arrest. The warrant authorizes police to arrest the individual named in the document. This is common for more serious offences or when the individual is not immediately available for arrest.

  • Arrest without a Warrant: Police can arrest someone without a warrant if they have reasonable and probable grounds to believe that the person has committed an indictable offence, is in the process of committing a crime, or if the individual has been found committing a summary offence. Immediate action is often necessary in these situations.

3. Arrest Procedure:

  • Identification: When making an arrest, police officers must identify themselves and inform the individual that they are under arrest, during the lawful execution of their duties.

  • Rights: The arrested person must be informed of his/her rights, including the right to retain and instruct legal counsel without delay. Under section 7 of the Charter, Canadians have the right to life, liberty, and security of the person. Implicit within this right is the right to remain silent, which a lawyer will likely advise you to do in the event of an arrest. This is known as the "right to counsel" under Section 10 of the Canadian Charter of Rights and Freedoms.

  • Search and Seizure: Police may conduct a search of the arrested person and their immediate surroundings for evidence related to the crime or for safety reasons. Any evidence obtained during this search can be used in court. If the police obtain evidence in breach of your Charter right to be secure against unlawful search and seizure, a lawyer can make application to have the evidence excluded at trial.

4. Detention:

  • Police Custody: After an arrest, the individual is taken into police custody. They may be held at a police station while charges are processed and decisions are made regarding bail.

  • Bail Hearing: If the individual is not released immediately, a bail hearing is scheduled to determine whether they can be released from custody and under what conditions. The hearing assesses factors such as flight risk, the likelihood of reoffending, and public safety.

Summons

1. Definition and Purpose:

A summons is a legal document issued by the court that requires an individual to appear in court to answer charges or respond to a legal action. It is typically used for less serious offences or in situations where immediate arrest is not necessary.

2. Issuance of a Summons:

  • Application for a Summons: A summons can be issued at the request of the Crown Prosecutor or, in some cases, by a police officer who has prepared a formal complaint. The request is based on evidence and the nature of the alleged offence.

  • Contents of the Summons: The summons includes details of the charges, the date and time of the required court appearance, and instructions on how to respond.

3. Serving a Summons:

  • Service of Process: The summons must be formally delivered to the individual named in the document. This can be done in person by a process server, a police officer, or through registered mail, depending on the circumstances. Proper service ensures that the accused is aware of the charges and the requirement to appear in court.

  • Failure to Respond: If the individual does not respond to the summons or fails to appear in court as required, a bench warrant may be issued for their arrest. This could lead to additional legal consequences and complications.

4. Court Appearance:

  • First Appearance: Upon receiving a summons, the individual must attend the scheduled court date. At this first appearance, the court will inform them of the charges and the legal process. The accused may enter a plea at this stage.

  • Subsequent Proceedings: If the accused pleads not guilty, the case will proceed to further stages such as preliminary hearings or trial, depending on the nature of the charges.

What Do You Do?

Learn More About Bail Hearings

Bail hearings are a crucial step in the Canadian legal process, determining whether an accused person can be released while awaiting trial. This page explains the purpose of bail hearings, the factors the court considers, and how Ryan Patmore can advocate for your release and protect your rights throughout the process.

Comparison of Arrests and Summons

  • Arrest:

    • Generally used for more serious offences or when there is an immediate need to take someone into custody. An arrest Involves police action and can result in detention and a bail hearing to secure a future court date.

  • Summons:

    • Typically used for less serious offences or when arrest is not deemed necessary. While the summons still requires the person to answer for an alleged offence, It requires that individual to appear in court voluntarily and does not involve immediate detention.

  • Undertaking:

    • Similar to a summons, undertakings can require that the accused person agree to certain conditions while on immediate release. These can include, but are not limited to: curfews, remaining in a specific jurisdiction, agreeing not to contact certain people or being barred from attending certain places. These conditions can be imposed at the sole discretion of the police, but can be amended before a Judge in Court, through your lawyer.

Key Points to Remember

  • Legal Rights: Regardless of whether an arrest or summons is involved, individuals have legal rights protected by the Canadian Charter of Rights and Freedoms (“the Charter”). Your legal rights are specified from ss. 7-11, and 12 of the Charter. These rights include the right to remain silent, the right to legal counsel (and counsel of choice), protection against unlawful detention, and the right to be free from unreasonable search and seizure .

  • Legal Counsel: It is crucial for individuals facing either an arrest or a summons to seek legal advice. A lawyer can provide guidance on how to respond to the summons, how to handle an arrest, and how to navigate the subsequent court process.

Understanding the procedures for arrest and summons helps ensure that individuals are aware of their rights and responsibilities within the Canadian legal system.