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Police Overholding

The police power of arrest is a significant intrusion on personal autonomy.  When the police place an individual under arrest, by definition liberty is effected. Often arrested individuals are taken into police custody, transported to a police station, and held out of public view in basement cells.  At no time in the court process is the power imbalance between the state and the individual more lopsided.

For that reason, the Criminal Code places certain limits on the exercise and length of an arrest. If the police overstep these limits, the Charter of Rights and Freedoms enables Canadian courts to exclude evidence or “stay” (stop) a proceeding.

Sections 494 to 503 of the Code outline who may arrest another person, when an arrest is justified and under what circumstances ongoing detention is permitted following an arrest.

It is a common misconception that the police are required to arrest a person in order to charge him or her with a criminal offence. That is not the case, police may simply provide an appearance notice to ensure that the charged person attends Court.

If the police choose to arrest a person, they have an obligation to release that person “as soon as practicable” unless certain and limited public interest exceptions apply, such as to establish the person’s identity, to preserve evidence relating to an offence, to prevent the continuation or repetition of the offence, or to ensure the safety and security of victim or witness to the offence.

Police don’t always follow the rules.

“Overholding” occurs when a person is arrested and is then kept in custody longer than the Code permits. It is a common police practice that is driven by internal policy relating to certain offences, ignorance of the law, or other factors, such as scarce resources.

In a recent Ottawa case (full disclosure – we were counsel) an Ottawa judge found that the Ottawa police engaged in unconstitutional overholding:

As my ruling is that the arrest was arbitrary, the ensuing detention was arbitrary and a continuing breach of the Applicant’s rights under the Charter and the Criminal Code. My analysis of this issue is free standing from the arrest issue.  Aside from the arbitrary arrest, the delay in processing the Applicant was unreasonable. […] Overholding detention to accommodate shift scheduling is unreasonable and breached [the accused’s] s. 9 right to not be arbitrarily detained.

Overholding is not limited to serious cases – in “over .80” or impaired driving cases overholding is especially common. The police tend to complete these types of investigations within 2-4 hours of an arrest, once the Breathalyzer test results are obtained and the arrested person is processed. Because the continued detention of impaired or intoxicated people is often driven by safety considerations, Canadian courts seldom remedy overholding in this context.

Regardless of the offence, if the Court finds that other Charter breaches  occurred during the course of the police investigation, however, the existence of overholding may be a factor that contributes to the exclusion of evidence or a stay of proceedings.

In all circumstances, the police are required to take an arrested person before a Justice of the Peace within 24 hours his or her arrest and justify a basis for ongoing detention. If a Justice is not available within that period, the police must take that person before a Justice as soon as possible. Failure to do so constitutes an arbitrary detention under the Charter.

Our justice system places great value on personal liberty and takes its unjustified deprivation very seriously. Unfortunately, the general public often misunderstands the limits of police power and, as a result, its improper exercise may remain unchecked.

As people often feel (and are) powerless in the hands of the state, overholding is generally remedied after-the-fact. In order for that to occur, however, the person who was overheld must first be aware that their detention was unjustified, and then raise it as an issue during their court proceeding.

Ultimately, every case is unique and requires special consideration. Speaking with a criminal defence lawyer is the best way to make sure that your rights have been respected.

The phone lines at Abergel Goldstein & Partners are always open.

Michael Purcell

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