These terms, despite being used interchangeably by many people in everyday language, are distinct legal concepts. As such, they each have their own implications that affect an individual’s rights, as well as the procedures law enforcement officers must follow.
In this blog, we will look at the similarities and differences between arrest and detention. By providing clarity on the legal definitions, rights involved, and procedures, we hope to provide readers with a better understanding of how to protect themselves and when to seek legal assistance.
Arrest vs Detention – Definitions
Arrest
An arrest is the act of taking a person into custody with the intent of charging them with a criminal offense. Under Canadian law, an arrest occurs when police officers inform the person that they are under arrest, which is generally accompanied by the physical act of handcuffing.
Criteria for a lawful arrest include having an arrest warrant, witnessing the crime firsthand, or if an officer believes, on reasonable grounds, that the individual has committed a crime.
Detention
Detention refers to when a police officer places a person under temporary police custody without formally arresting them. Used for questioning and investigation, examples of detentions include traffic stops and investigative detention based on reasonable suspicion of involvement in a criminal matter.
Key Differences Between Arrest and Detention
Arrests require a higher legal standard than detentions. For an arrest, law enforcement must have reasonable and probable grounds or a warrant. Detention only requires reasonable suspicion.
Detentions are typically shorter in duration compared to arrests. While an individual can be detained for questioning for a brief period, an arrest involves taking the individual into custody for a longer time, sometimes up to 24 hours until they can appear before a judge. A detention almost always occurs with a person being told they cannot leave the area or at most placed in the back of a police vehicle.
Upon arrest, individuals have specific rights, such as the right to remain silent, the right to speak to a lawyer, and the right to be informed of the charges against them. During detention, individuals still have the right to know why they are being detained and the right to speak to a lawyer, but there are some types of detentions where an individual does not have a right to speak to a lawyer such as a traffic stop. This is allowed on the basis that such stops are extremely short in nature.
Arrest outcomes can lead to formal charges, court appearances, and potential incarceration. Detentions, however, might result in the individual being released after questioning or further investigation without formal charges.
Arrest vs Detention – Examples
Example of a Lawful Arrest
A person is arrested for shoplifting after being caught on security cameras and apprehended by store security. The police are called, the individual is informed of their rights, and charges are laid.
Example of an Investigative Detention
During a traffic stop, an officer detains a driver based on the suspicion of impaired driving. The driver is questioned, given a breathalyzer test, and released without charges after passing the test.
Legal Protections and Rights
The Canadian Charter of Rights and Freedoms, specifically section 9, protects against arbitrary detention and arrest; any detention or arrest must be lawful and justified. Case law and legal precedents further clarify these protections.
According to section 10 of Charter, if the police arrest or detain someone, they have the right to be promptly informed of the reasons why. They also have the right to retain and instruct counsel without delay and to be informed of this right. Individuals also have the right to have the legality of their detention reviewed by way of habeas corpus.
Law enforcement must follow specific steps during an arrest, including identifying themselves, informing the individual they are under arrest, stating the reason for the arrest, and informing the individual of their right to counsel. Individuals should remain calm, avoid resisting, and immediately request to speak with a criminal defence lawyer.
Following an arrest, conditions for bail may include financial guarantees, regular check-ins with authorities, or restrictions on travel. The decision to grant bail after an arrest, and the specific conditions, are determined by a judge, who considers factors like the nature of the offense, the accused’s criminal history, and the risk of flight or safety to the public.
During detention, particularly investigative detention, police may stop individuals for questioning based on reasonable suspicion. Individuals should ask why they are being detained, exercise their right to remain silent, and request legal counsel.
Seeking legal advice is vital to protecting your rights and ensuring due process. At Jaswal & Krueger, our experienced criminal lawyers are adept at navigating complex legal proceedings processes and vigorously advocating for our clients’ rights.
Challenging Unlawful Arrest and Detention
If an arrest or detention is deemed unlawful, individuals have several legal recourse options in the Canadian criminal justice system. They can file a complaint with the police department, seek a judicial review, or pursue a civil lawsuit for damages. An unlawful arrest or detention can also lead to successfully excluding evidence in a criminal trial, which may result in the Crown being unable to prove the charges. Consulting with an experienced criminal lawyer is recommended to navigate the legal process effectively.
