Interview delay justified

Mike Novakowski
January 04, 2013
By Mike Novakowski
A statement is considered evidence for the exceptions to Criminal Code release provisions when it is necessary in the public interest to “secure or preserve evidence of or relating to the offence.” In R. v. Viszlai, 2012 BCCA 442 a detective asked another police detachment to arrest the accused for some previous sexual offences, asking that Viszlai be held overnight so she could interview him the next morning. He was taken into custody at 7:03 pm, advised of his right to counsel, driven to the station and booked. He spoke to legal aid in private at 7:52 pm and told the arresting officer he was satisfied with the advice received. The detective drove from Victoria to Nanaimo the next morning, then flew to Sechelt and interviewed Viszlai from 9:50 to 11:50 am. Before starting, the detective advised Viszlai of the reason for his arrest, his right to counsel and that he was not obliged to say anything. He admitted to sexually assaulting two victims, wrote out an apology to them and was released on a Promise to Appear (PTA) at 12:50 pm, about 18 hours after he was arrested.

A statement is considered evidence for the exceptions to Criminal Code release provisions when it is necessary in the public interest to “secure or preserve evidence of or relating to the offence.”

In R. v. Viszlai, 2012 BCCA 442 a detective asked another police detachment to arrest the accused for some previous sexual offences, asking that Viszlai be held overnight so she could interview him the next morning. He was taken into custody at 7:03 pm, advised of his right to counsel, driven to the station and booked. He spoke to legal aid in private at 7:52 pm and told the arresting officer he was satisfied with the advice received.

The detective drove from Victoria to Nanaimo the next morning, then flew to Sechelt and interviewed Viszlai from 9:50 to 11:50 am. Before starting, the detective advised Viszlai of the reason for his arrest, his right to counsel and that he was not obliged to say anything. He admitted to sexually assaulting two victims, wrote out an apology to them and was released on a Promise to Appear (PTA) at 12:50 pm, about 18 hours after he was arrested.

In British Columbia Supreme Court the accused argued he was arbitrarily detained because he was held overnight to be interviewed the following morning. In his view, he should have been released by police sooner or taken before a JJP for a hearing. The judge rejected this, finding Viszlai had been lawfully arrested and detained. The arrest was not planned and the delay in taking a statement from him was justified.

“In the circumstances, [the police] actions cannot be regarded as a deliberate attempt to circumvent the rights of the accused to be released as soon as practicable,” said the judge. Viszlai's statement was admissible and he was convicted by a jury of sex offences.

Viszlai again argued in the BC Court of Appeal that he was arbitrarily detained, suggesting his continued post-arrest detention became unlawful because he should have been released as soon as practicable by either police (under ss. 497 and 498 of the Criminal Code) or appear before a JJP without unreasonable delay. After all, he claimed, police released him on a PTA at the end of the interview, showing that he was not considered a public risk. He suggested police could not detain an arrestee for the purpose of arranging an interview.

The court rejected his argument. Both ss. 497(1.1) and 498(1.1) contain a provision authorizing the continued detention of an arrestee when there are reasonable grounds to believe it is necessary in the public interest to secure and preserve evidence of or relating to the offence. This evidence includes a statement.

“The police are not required to release a person who has been lawfully arrested when there are reasonable grounds to believe that the continued detention of that person is needed for the purpose of obtaining evidence,” said Justice Frankel.

“Nothing in the language of the exception differentiates one investigative technique from another, nor does it differentiate one form of evidence from another.”

Nor was it necessary for the detective to have another officer in Sechelt do a surrogate interview. She was responsible for the investigation, belonged to a specialized investigative unit and took expeditious steps to travel to Sechelt.

The 15 hour delay in taking a statement after arrest in these circumstances did not render the detention arbitrary and police acted reasonably, however Viszlai's appeal was granted on other grounds.

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