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Pretrial Criminal
Procedures
3
Investigative
Detention
Person may be held for questioning
without grounds for an arrest.
Legality depends on
– Importance of the issue.
– Amount of intrusion.
Used to
– Get evidence which will allow for
warrantless search.
– Stall for time to get warrant.
4
Arrest
Restraint of liberty.
5
Arrest Without a
Warrant
May be used if
– Crime is in progress.
– Suspect is about to commit an indictable offence or
– Has an outstanding warrant or
– Is known to have committed an indictable offence.
6
With a Warrant
A warrant is used if appearance of the
suspect cannot be compelled by a summons.
7
Custodial Interrogation
The suspect must be
informed of right to
remain silent and
retain counsel.
Most give
statements to police,
both verbal and
written, if asked.
Voluntary
statements may be
used as evidence. 8
Interrogation
Strategies
Conditioning strategy
– Encourage suspect to trust
questioner.
De-emphasizing strategy
– Focus on empathy for
victim, rights are
unimportant.
Persuasion strategy
– Encourage suspect to talk
so that his side can be
heard.
May result in false
9
Right to Counsel
Suspect has right to retain
and consult privately without
delay.
– Applies only if person is under
arrest, not if person goes
voluntarily.
– Police may continue innocuous
questioning while waiting for
counsel.
13
Surety and Bail
Surety
– An individual agrees to
monitor suspect, forfeit a
sum of money if suspect
fails to appear.
Bail
– Money is left with the court
to ensure the suspect
appears for trial.
Continued detention must
be justified. 14
Bail Reform Act (1972)
Response to studies showing that
– Bail discriminates against the poor.
– Most people do show up as required.
In most cases, police must
– Summons rather than arrest.
– Release on own recognizance, promise to
appear, etc.
Unsecured bail
– Payable upon default.
Secured bail
– Full amount up front to be refunded.
15
Research on Bail
Practices
Amount of bail may be equal to a
detention order.
Aboriginal people (Manitoba) are more
likely to be placed in detention and for
longer periods.
Blacks in Ontario are more likely to be
remanded to custody.
Negative personality assessments by
Toronto police increase denial of bail.
16
Search and Seizure
Search of a place
– Requires a warrant, except when arresting
suspect.
Search of a person
– Is covered by common law.
Invasive search
– Requires special authorization.
– E.g. blood sample.
17
Search Warrants
Warrant
– Obtained from justice of the peace.
– Contains list of items.
Police may seize items not listed but
related to offence.
Law Reform Commission found that
– Few guidelines were followed for warrants.
– Justification was mainly after the fact.
Searches must be reasonable and
specific.
18
Warrantless Searches
Warrantless searches may be okay in
exigent circumstances if
– There is compelling evidence of crime.
– The source is credible.
– The police investigate the information.
– The suspect’s past record and reputation
are considered.
– To prevent death or bodily harm.
– To prevent imminent loss or destruction of
evidence.
19
Searches During Arrest
May be conducted for
– Protection of police.
– Protection of evidence.
– Minor detail.
– Could be searched at police station.
20
Other Warrantless
Searches
Motor Vehicles may
be searched if related
to arrest.
“Plain view” (e.g.
drugs, weapons, stolen
goods).
Consent searches
must be voluntary and
based on informed
consent.
Searches must be based
on “reasonable
21
Electronic Surveillance
Includes wiretapping, hidden
cameras, etc.
22
Stay of Proceedings
May be ordered by a judge in
cases where
– There is a significant time lapse
between the offence and the laying
of charges.
– The Accused's rights to fundamental
justice are jeopardized.