Detention and Arrest FAQs
The whole question of detention or arrest is often needlessly confusing for civilian authorities. I say needlessly, because various case law outcomes appear to have provided a wealth of clarification on these matters.
For example, on the question is a "detention" the same as an "arrest?"
Sir Patrick Devlin has stated and ruled, that detention,arrest and imprisonment "are, in law, the same thing. Any form of physical restraint is an arrest and imprisonment only a continuing arrest".
Any legal consideration concerning whether an arrest has taken place will be based on the facts that occurred at the time.
Under most circumstances, an arrest will not be necessary in security situations or security investigations. However, a security officer may be put in a position where an arrest is necessary in order to do one of the following things:
Identify the accused
Recover stolen property or protect evidence that may be in the possession of the accused
Where the accused person is drunk, violent or suicidal, protect that person or others
Essentially, there is no difference between an arrest and a detention.
When is a Security Officer required to "read a person their rights?"
Upon arrest, or as soon as is reasonably practical, given all the circumstances at the time, i.e. for safety reasons.
The word "promptly" in s.10 (a) can mean one thing in one set of circumstances and another thing in another set of circumstances. Where the arrest situation is very passive, it is an infringement of the accused's rights if the Charter duty is not fulfilled at the scene, and the police cannot cure the omission by later giving the Charter warning at the police station. The failure to perform a clearly mandated function in itself brings the administration of justice into disrepute: [The Queen v. Eatman (1982), 45 N.B.R. (2d) 163 (N.B.Q.B.)].
Does the Charter of Rights only apply to the police?
Of course not (see above case outcome), it applies to everyone in this country. So, if this is the requirement for the police, then it is the requirement for all of us.
Understanding civilian/security personnel arrest authorities are critical to the core requirements of the security industry and other civilian authorities. You need to also consider the difference between when "can you" arrest, "should you" arrest and "would you" arrest based on all of the impacting factors and circumstances involved.
Before we understand what the nature of arrest is, we must all speak the same language. So, what is an "arrest"?
Arrest is the removal of an individual's liberty; a right that has guaranteed protection in the Charter of Rights and Freedoms. It is a serious affair and should never be taken lightly. The Charter speaks to remedies for bringing the administration of justice into disrepute - which is what a false arrest is.
Arrest also occurs when the subject “believes”, they have been arrested by a person with the authority to do so. This means that a security officer who “directs with authority” (e.g. “sit there and don’t move”) has already made an arrest if the subject believes that they are not free to leave. The fact that the officer “did not mean to arrest them” (too often thinking of this as 'investigative detention' - which it is not) and did not read them their 10b Charter Rights are already established as case law and in civil suit settlements against the officers.
The supreme Court has already ruled that “arrest is a matter of perception, not intention”, so be careful that what you say is what you mean and that your subject understands clearly what is occurring. If they have the option of leaving tell them so and avoid the kinds of misunderstandings that result in lawsuits and new case law.