Arrest after commission of certain offences.

Arrest

during night.

While

33. If any offence for which the offender may be arrested without warrant has been committed, any one who, on reasonable and probable grounds, believes that any person is guilty of that offence is justified in arresting him without warrant, whether such person is guilty or not. 55-56 V., c. 29, s. 25.

Arrest without warrant.]-The words "may be" in this section refer to those provisions of the Code which authorize arrest without warrant, and which include the offence of unlawfully wounding under sec 274. Jordan v. McDonald (1898), 31 N.S.R. 129.

Defendant, a police officer in and for the town of Windsor, N.S., arrested plaintiff at Halifax, on a charge of having unlawfully assaulted, beaten, wounded and illtreated P., a police officer, while in the discharge of his duty, occasioning actual bodily harm. Defendant, at the time, held a warrant for plaintiff's arrest, but it had not been indorsed for execution in another county. Apart from the warrant defendant had actual knowledge of the commission of the offence for which the arrest was made. In an action by plaintiff claiming damages for unlawful arrest and imprisonment, it was held that it was competent for defendant to contend that the arrest was made independent of the warrant, and to justify such arrest by shewing that at the time the arrest was made he was aware that plaintiff had committed the offence of unlawfully wounding. Jordan v. McDonald (1898), 3 N.S.R. 129.

Subject to the provisions of sec. 649, when a private person-that is, a person not by office a keeper of the peace, or a justice, or a constabletakes upon himself to arrest another without a warrant for a supposed offence in respect of which a warrant is not required, he must be prepared to prove that such an offence has been committed, for in that respect he acts at his own peril. Mere suspicion that such an offence has been committed by some one will not do, though if he is prepared to shew that it has really been committed by some one, then he may justify arresting a particular person, upon reasonable grounds of suspicion that he was the offender; and mistake on that point, when he acts sincerely upon strong grounds of suspicion, will not be fatal to his defence. McKenzie v. Gibson (1851), 8 U.C.Q.B. 100.

34. Every one is protected from criminal responsibility for arresting without warrant any person whom he, on reasonable and probable grounds, believes he finds committing by night any offence for which the offender may be arrested without warrant. 55-56 V., c. 29, s. 26.

Night.]-This expression is defined by sec. 2 (23) to mean the interval between 9 p.m. and 6 a.m.

35. Every peace officer is justified in arresting without committing warrant any person whom he finds committing any offence.

offence.

By night.

55-56 V., c. 29, s. 27.

See secs. 646 to 652, inclusive.

36. Every one is justified in arresting without warrant any person whom he finds by night committing any offence.

2. Every peace officer is justified in arresting without war- Loitering by rant any person whom he finds lying or loitering in any high- night. way, yard or other place by night, and whom he has good cause to suspect of having committed or being about to commit any offence for which an offender may be arrested without warrant. 55-56 V., c. 29, s. 28.

Finds committing.]-A person is "found committing" an offence if he is either caught in the act or is pursued immediately and continuously after he had been seen committing it; but in the latter case there must be such fresh and continuous pursuit of him from the time of his being seen that both events may be said to be part of the one occurrence. R. v. Curran (1828), 3 C. & P. 397. Pursuit begun after the lapse of three hours from the commission of the offence is insufficient to justify the apprehension under this clause. Downing v. Capel, L.R. 2 C.P. 461.

Night.]—The interval between 9 p.m. and 6 a.m. See sec. 2(23). Arrest without warrant.]-See secs. 646 to 652, inclusive, and sec. 35 supra.

37. Every one is protected from criminal responsibility for Arrest arresting without warrant any person whom he, on reasonable during flight. and probable grounds, believes to have committed an offence and to be escaping from and to be freshly pursued by those whom he, on reasonable and probable grounds, believes to have lawful authority to arrest that person for such offence. 55-56 V., c. 29, s. 29.

Reasonable and probable grounds.]—See secs. 30 and 33.

Flight as evidence.]-The fact of the flight of the accused or his attempts to escape, is a circumstance in the chain of evidence from which guilt may be inferred, unless it appear that the act was for another reason. Lawson's Presumptive Ev., 2nd ed. 619. So a prisoner's attempt to escape implies guilt and operates against the party like a confession, but the fact that the prisoner had an opportunity or offer of assistance to escape but did not avail himself of it is not relevant. Ibid. 621. The fact that the accused fled because of a fear of violence at the hands of their pursuers overthrows the presumption. Ibid. And if the suspected person had changed his residence but it appeared that he was a peddler and accustomed to go from place to place, no presumption of guilt would arise. Best Ev., sec. 461. Evidence of the flight of persons charged as co-conspirators with the prisoner is not admissible against him. People v. Sharp, 107 N.Y. 427. And where a prisoner confined in gaol for two distinct offences attempts to escape, it has been held that the attempt is not evidence of guilt as to either charge, as it is impossible to say which offence prompted the attempt. People v. McKean, 19 N.Y. 486.

38. Nothing in this Act shall take away or diminish any Statutory authority given by any Act in force for the time being to arrest, power of detain or put any restraint on any person. 55-56 V., c. 29,

arrest.

3-CRIM. CODE.

Force in executing warrant, process or sentence.

Duty of person arresting. Notice.

Failure in duty.

39. Every one executing any sentence, warrant or process, or in making any arrest, and every one lawfully assisting him, is justified, or protected from criminal responsibility, as the case may be, in using such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, process or warrant can be executed or the arrest effected by reasonable means in a less violent manner. V., c. 29, s. 31.

55-56

Overcoming resistance in executing process.]-Where an officer of justice is resisted in the legal execution of his duty he may repel force by force, and if in doing so he kills the party resisting him, it is justifiable homicide. Archbold's Cr. Plead. (1900), 778; 1 Hale, 494; R. v. Porter, 12 Cox C.C. 444.

Although a police constable may not be bound in the execution of his duty to assist the occupier of a house in putting out an intruder, yet he may lawfully do so, and if he is assaulted by the intruder while so doing, the latter, though he may not be indictable for assaulting a peace officer in the execution of his duty, will be liable to a conviction for an assault, as he cannot justify resistance to the force lawfully used to eject him. R. v. Roxburgh, 12 Cox C.C. 8.

By sec. 167, every one is guilty of an indictable offence and liable to six months' imprisonment who, having reasonable notice that he is required to assist a peace officer in the execution of his duty in arresting any person or in preserving the peace, without reasonable excuse omits so to do.

Resisting peace officer.]-See secs. 168 and 169.

40. It is the duty of every one executing any process or warrant to have it with him, and to produce it if required.

2. It is the duty of every one arresting another, whether with or without warrant, to give notice, where practicable, of the process or warrant under which he acts, or of the cause of the arrest.

3. A failure to fulfil either of the two duties last mentioned shall not of itself deprive the person executing the process or warrant, or his assistants, or the person arresting, of protection from criminal responsibility, but shall be relevant to the inquiry whether the process or warrant might not have been executed, or the arrest effected, by reasonable means in a less violent manner. 55-56 V., c. 29, s. 32.

Manner of arrest.]-Where a constable tells a person given into his charge that he must go with him before a magistrate, and such person, in consequence, goes quietly, and without force being used, it is an arrest. Chinn v. Morris, 2 C. & P. 361; Joyce v. Perrin, 3 U.C.O.S. 300.

And where the constable said to the plaintiff "You must go with me," on which the plaintiff said he was ready to go, and went with the constable towards a police office, without being seized or touched, this was ruled to be an imprisonment. Pocock v. Moore, Ry. & M. 321; Forsyth v. Goden, 32 C.L.J. 499.

If the party is under restraint and the officer manifests an intention to make a captive, it is not necessary that there should be an actual contact. Grainger v. Hill, 4 Bing. N.C. 212, Vaughan, J.; McIntosh v. Demeray, 5 U.C.Q.B. 343; Wilson v. Brecker, 11 U.C.C.P. 268.

Defendant was convicted of a fourth offence under the Canada Temperance Act. A warrant was placed in the hands of a constable, who after keeping it for some time went to defendant to execute it, and told him he would have to come to gaol with him. Defendant, complaining of the great inconvenience he would be put to if placed in custody at that time, induced the constable to hold off for a week or two longer by agreeing to deposit $100 with him. Later on the constable arrested the defendant on the same warrant and lodged him in gaol. It was held on an application for his discharge by habeas corpus on the ground that he had been twice arrested on the same warrant, that even if an arrest had been effected on the first occasion when the constable agreed to hold off, it was called off by defendant's own request and he was therefore estopped, and the application was refused. Ex parte Doherty (1899), 35 C.L.J. 765, 5 Can. Cr. Cas. 94 (N.B.).

Right of search on arrest.]—The right of an officer to search the person of one arrested for felony has always been assumed, as well as the right to keep the goods found on him if necessary for the purposes of the trial. See Tomlin's Law Dictionary, sub-tit. Constable, IV., "A constable must keep goods found on a felon till trial, and then return them according to the directions of the court." In the case of Dillon v. O'Brien, 16 Cox C.C., at page 245, the Irish Exchequer Division extended the rule to cases of misdemeanour. Palles, C.B., says: "If, then, the right here claimed, does not exist, even in treason and felony, it would follow upon the arrest of a murderer caught in the act and on the moment lawfully arrested, whilst the weapon with which the crime had been committed was in his hand it would be illegal for the constable to detain that weapon for the purpose of Evidence; so also would it be illegal for the officers of the law to take possession of poisons found in the possession of one who had caused death by poison, and even in treason letters from co-traitors evidencing the common treasonable design, found in the possession of a traitor, would be safe from capture upon his arrest, although from the earliest times it has been the settled and unvarying practice to seize such proofs of guilt and give them in evidence at the trial." The case of Leigh v. Cole, 6 Cox C.C. 329 (cited with approbation by the Ontario Court of Appeal in Gordon v. Denison, 22 A.R., p. 326), was a charge to the jury by Mr. Justice Vaughan Williams on the subject of the right of constables to search and handcuff persons in custody for breaches of the peace, and the learned judge made use of the following language: "With respect to searching a prisoner there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that any general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend on all the circumstances of the case." In the case of persons in custody not accused of an indictable offence no general rule can be applied, and it would always be for a jury to say whether the case is one in which a search should have been made. Ibid.

Where a letter-carrier violates the rules of the post office department by failing to enter a letter bearing a non-existent address in the book provided for that purpose, or to return the letter to the post office, there is reasonable and probable cause for detaining and searching him, and an action

Peace officer preventing escape.

Private per

for damages against the peace officer who effected the arrest is not maintainable in the absence of evidence that the officer had made an improper and illegal use of his authority in the manner in which he effected such detention and search. Mayer v. Vaughan (No. 2), 6 Can. Cr. Cas. 68, 11, Que. K.B. 340, affirming Mayer v. Vaughan (No. 1), 5 Can. Cr. Cas. 392.

Restoration of property taken from prisoner.]—If a constable improperly deprives a prisoner of his property, an application may be made to the justice for its restoration, which on hearing all the parties concerned, he should order, if it appears just. If the property is clearly not connected with the crime to be investigated, or of any other crime, and is not such as it is unlawful for the prisoner to have upon his person, and is not of such a nature that it will be unsafe to allow him to retain it, it ought to be restored. R. v. Barnett, 3 C. & P. 600; R. v. Frost (1839), 9 C. & P. 129.

Handcuffing.]-No one should be handcuffed, unless from the nature of the offence, and the supposed character of the prisoner, or for violent resistance to arrest or attempt to escape, or for some other sufficient reason, the constable has reasonable apprehension that the prisoner would otherwise escape, or that there is danger that he might do so. Wright v. Court, 4 B. & C. 596; Griffin v. Coleman, 4 H. & N. 265; Hamilton v. Massie, 18 O.R. 585.

Temporary release of prisoner from the officer's custody.1-Where the officer executing a warrant of commitment releases the prisoner, at his request, for a temporary period, on his promise to surrender himself, such does not constitute a voluntary abandonment of the arrest, and a re-arrest is justified upon the same warrant. The King v. O'Hearon (No. 2) (1901), 5 Can. Cr. Cas. 531.

41. Every peace officer proceeding lawfully to arrest, with or without warrant, any person for any offence for which the offender may be arrested without warrant, and every one lawfully assisting in such arrest, is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner. 55-56 V., c. 29, s. 33.

Re-arrest after escape.]-In criminal cases, where a prisoner escapes, if the escape be negligent merely, the goaler or officer may retake him, at any time, without warrant (Dalt. c. 169); if voluntary, he cannot afterwards be retaken by virtue of the same warrant under which he was at first arrested (2 Hawk. ch. 14, sec. 9); but he may be retaken on a fresh warrant, or without a warrant in cases where he might have been arrested without a warrant originally. Archbold's Criminal Pleading and Evidence, 22nd ed., p. 852. R. v. O'Hearon (1901), 5 Can. Cr. Cas. 531 (N.S.)..

Shooting.]-Only in the last extremity should a peace officer resort to such a dangerous weapon as a revolver in order to prevent the escape of an accused person who is attempting to escape by flight. R. v. Smith (1907), 7 Western L.R. 92, 95, per Perdue, J.A.

42. Every private person proceeding lawfully to arrest son prevent without warrant any person for any offence for which the ing escape. offender may be arrested without warrant is justified, if the