New Power of Arrest

Mike Novakowski
September 04, 2012
By Mike Novakowski
Six people walk into a bar on June 12, 2012 to celebrate their release from jail. Although free, each is bound by conditions – one is on parole and the others probation, bail, community sentence order (CSO), s. 810 Criminal Code (CC) recognizance and promise to appear (PTA) with undertaking respectively. All six are not to consume alcohol. As they raise their beers in a toast, an astute patrol officer walking by recognizes them. Four of the six have committed a new crime – the men on probation (s. 733.1 CC), bail (s. 145 CC), s. 810 recognizance (s. 811 CC) and PTA (s. 145 CC) are arrestable under s. 495 CC. The man on a CSO commits no new crime but can nonetheless be arrested and brought back before the judge because s. 742.6 CC transfers the powers of arrest that apply to an indictable offence to a breach of a condition of a CSO.

Six people walk into a bar on June 12, 2012 to celebrate their release from jail. Although free, each is bound by conditions – one is on parole and the others probation, bail, community sentence order (CSO), s. 810 Criminal Code (CC) recognizance and promise to appear (PTA) with undertaking respectively.

All six are not to consume alcohol. As they raise their beers in a toast, an astute patrol officer walking by recognizes them. Four of the six have committed a new crime – the men on probation (s. 733.1 CC), bail (s. 145 CC), s. 810 recognizance (s. 811 CC) and PTA (s. 145 CC) are arrestable under s. 495 CC. The man on a CSO commits no new crime but can nonetheless be arrested and brought back before the judge because s. 742.6 CC transfers the powers of arrest that apply to an indictable offence to a breach of a condition of a CSO.

The parolee however, regardless of the crime – murder, rape, child molestation – is not breaking any law and cannot be arrested without a warrant. Sounds strange, doesn't it? Let's rewind a bit.

A 1995 letter from an Abbotsford, BC constituent to the Liberal federal government pitched the idea that police should be given the power to arrest an offender they find violating a parole or statutory release condition. The law at the time, as in our bar scenario, only allowed an arrest under s. 137(2) of the Corrections and Conditional Release Act (CCRA) if an officer believed on reasonable grounds that a warrant was in force.

The provision was a "warrantless arrest" power but required belief a warrant existed. Thus, this section permitted arrest on the basis of a warrant without warrant in hand. The 1995 proposal offered two options: (1) create an amendment to the CCRA allowing an offender to be arrested if found violating a condition of their parole or statutory release or (2) create a new crime of breaching release such as is the case when a person breaches their probation or bail, thereby justifying arrest under s. 495(1) CC.

The rationale for the proposal was to give police the immediate authority to arrest an offender breaching parole. "I am satisfied that powers currently held by police… are adequate to address the concerns that have been raised," then Liberal Solicitor General Herb Gray responded.

Langley-Abbotsford Reform MP Randy White took up the ball. His private member's bill would have given police the power to immediately arrest parole violators.

"The current system of requiring police to obtain a warrant to arrest offenders violating parole does nothing to stop the offender at the time of the violation," said White. "We must give the police the authority to arrest parole violators in the act, before they have a chance to commit a more serious crime, or disappear."

White introduced Bill C-379 in March 1997. It sought to make a breach of parole or statutory release a hybrid offence punishable by up to two years in prison (indictment) and 18 months if proceeded summarily. The amendment would have been deposited in s. 733.1CC – the same section as breach of probation.

The Canadian Police Association supported the proposal but the bill died when a federal election was called. The amendment was re-introduced as Bill C-211 in September 1997 and was one of four bills chosen by the Procedures and House Affairs Committee for a House vote.

After three hours of debate, the NDP supported it but the Liberals and Bloc Quebecois did not. It was defeated March 31, 1998 by a vote of 152-74. The status quo remained. There was an upside however; the bill formed part of the Social Sciences Teacher's Institute 2005 lesson plan on how a bill becomes law. Students were asked to reach their own conclusions as to whether it ought to be made law and write their MP stating their opinion.

Fast forward some 15 years later to the federal government's Bill C-10, the Safe Streets and Communities Act, introduced in September 2011. Section 92 of the Bill amended the CCRA to add a warrantless arrest power for persons found breaching their parole, statutory release or unescorted temporary absence conditions. This after two earlier attempts – Bill C-43 (Strengthening Canada's Corrections System Act) in 2009 and Bill C-39 (Ending Early Release for Criminals and Increasing Offender Accountability Act) in 2010 – ended after second reading and referral to the Standing Committee on Public Safety and National Security. The new provision, which came into force on June 13, 2012, states:

Arrest without warrant – breach of conditions 137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer

(a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to

(i) establish the identity of the person, or

(ii) prevent the continuation or repetition of the breach; and

(b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.

It took a decade and a half from White's initial private member's bill before an arrest power for offenders breaching their parole, statutory release or UTA was recognized.

As the old proverb states, "The wheels of justice turn slowly, but grind exceedingly fine!"

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