Obligation to bring an Arrested Person Before a Justice without Delay
Bail/Arrest It occasionally happens that an individual who
is arrested is kept overnight until his/her bail hearing the next day. Counsel should be mindful that there is a
statutory obligation set out in section 503 of the Criminal Code, requiring
that the arrested individual be brought before a justice without delay.
The obligation of the police is to bring an
arrested person who is detained before a justice “without delay”. Twenty-four
hours is the outer limit of what a reasonable period is, where a justice is
available. The police do not have an unqualified right to keep someone in
custody for the purposes of investigation for a twenty-four hour period before
taking him before a justice.
See R.
v. Koszulap, (1974) 20 C.C.C. (2d) 193 (Ont. C.A.).
In R. v.
Simpson (1994), 1994 CanLII 4528 (NL CA), 88 C.C.C. (3d) 377 (Nfld. C.A.), at p. 8, rev’d on the issue of remedy 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449, the court referred to the significance of section 503 of the Criminal Code:
Section 503 may be one of the most important procedural provisions of the Criminal Code.
The liberty of the subject is dominant. A person not convicted of an offence
should never be held in custody except in accordance with constitutionally
valid provisions of the Criminal Code or other legislation. In some jurisdictions, even during the sitting week, the
police will bring an arrested person before a justice, as soon as the various
tasks that generally follow an arrest are completed, for hearing as to whether
the person should be released or detained. If necessary, a trial will be
interrupted for this purpose.
The paramountcy of the liberty of the subject
has been recognized in English law from the earliest times. Freedom is a
fundamental right. It is not to be taken away except in strict accordance with
the law.
Where a person is arrested with or without a
warrant, it is the duty of the arresting officer to ensure that that person is
not detained any longer than is necessary and that, if he or she is not
authorized by law to bring about the release, the person is brought before a
justice of the peace who may determine whether the detention should continue or
not and, if it is not to continue, what lawful conditions should be attached to
the release.
In my view, bringing an individual to the court
where the bail hearing is to be conducted within the 24-hour period is not, in
itself, sufficient to comply with section 503.
The section requires that the accused be “brought before a justice”. This rule operates so that the lawfulness of
the arrest can be determined and so that the accused’s freedom is curtailed no
more than is necessary. These functions do not occur, however, if the
individual is languishing in a holding cell waiting to be brought into court.
A breach of section 503 triggers as section 9
Charter violation, that is, it breaches the accused’s constitutional right not
to be arbitrarily detained or imprisoned. Where a serious breach has occurred, a stay
of the charge/charges may be the appropriate remedy. Where there is a finding of guilt, counsel
should also consider proving the breach and arguing under 24(1) of the Charter
that the appropriate and just remedy in the circumstances is the mitigation of
sentence.
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