Criminal Code of Canada - section 497(2) - Where subsection (1) does not apply

section 497(2)

INTRODUCTION AND BRIEF DESCRIPTION

Exempts those arrested without warrant by a peace officer for an offence listed in subsection 503(3) from Section 497(1).

SECTION WORDING

497(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

EXPLANATION

Section 497(2) of the Criminal Code of Canada provides an exception to the general rule of section 497(1) which requires a person arrested without a warrant to be released unconditionally unless they are brought before a justice within 24 hours. This exception applies to a person who has been arrested without a warrant by a peace officer in relation to an offence described in subsection 503(3). Subsection 503(3) of the Criminal Code lists various offences for which a peace officer may arrest without a warrant. These include offences that are punishable by imprisonment for a term of five years or more, or offences that are committed in the presence of a peace officer. In such cases, the arrested person must be brought before a justice without unreasonable delay. The rationale behind this exception is that certain offences are considered serious enough to warrant a more immediate response from law enforcement. By allowing peace officers to arrest without a warrant in these cases, the Criminal Code aims to address the risk of harm to the public and ensure that those responsible for serious offences are brought to justice as quickly as possible. Overall, section 497(2) provides an important exception to the general rule regarding arrest without a warrant, reflecting the need to balance individual rights with public safety concerns in the criminal justice system.

COMMENTARY

Section 497(2) of the Criminal Code of Canada has been a contentious issue in the country's legal system since its inception. This section essentially constitutes an exemption from the widely accepted principle of habeas corpus, which guarantees the right of a person to be brought before a court to determine whether their detention is lawful. Subsection (1) of Section 497 stipulates that a person must be promptly brought before a court after their arrest, failing which their detention is unlawful. However, this guarantee is seemingly dispensed with in the case of a person arrested without warrant for an offence described in subsection 503(3). Subsection 503(3) provides that some specific offences, including theft under $5000, mischief under $5000, and breach of recognizance, can be met with an "appearance notice," which is a document that requires the accused to attend court at a later date. The section further provides that if the officer has reasonable grounds to believe that the offender will not attend the court hearing, they "may arrest the person and bring the person before a justice pursuant to section 503," thereby allowing for detention before trial in certain circumstances. In the context of Section 497(2), this means that a person arrested without a warrant for an offence described in subsection 503(3) can be detained without being promptly brought before a court. This exemption from the habeas corpus principle has been the cause of concern for many, with some arguing that it violates the fundamental rights of an individual. The primary argument against Section 497(2) is that it creates a potential for abuse of power by the police. Since officers can arrest without a warrant and keep an accused in detention without the need to take them before a judge, it gives them an enormous amount of discretion and power. While the provision might have been enacted to make the law enforcement process quicker and more efficient, it could lead to police officers using their discretion to detain individuals simply because they want to, without sufficient grounds to do so. Furthermore, the provision can also lead to injustice, especially for those who lack resources or legal counsel. A person who has been detained without prompt access to legal representation may not be able to challenge their detention or present their case to a judge promptly. They might have to wait for days or even weeks, during which time their lives may be negatively impacted, causing further hardships and distress. However, supporters of Section 497(2) argue that it serves to keep offenders off the streets, thereby contributing to public safety. They believe that this provision gives the police the necessary tools to detain individuals who they suspect are a flight risk or pose a threat to themselves or others. Additionally, supporters point out that the provision only applies to specific offences that are not considered to be as serious as crimes that would warrant an immediate appearance before a judge. In conclusion, Section 497(2) of the Criminal Code of Canada is a controversial provision that has led to much debate in the country's legal system. While some argue that it serves to keep the public safe, others assert that it violates fundamental rights and could lead to unjust detention. Ultimately, it is vital to strike the right balance between protecting public safety and maintaining individual rights, and any decisions about this provision must be made with this balance in mind.

STRATEGY

Section 497(2) of the Criminal Code of Canada provides exceptions to the general rule that individuals who are arrested without a warrant must be brought before a judicial officer as soon as possible. This provision permits a peace officer to keep the accused in custody for a longer period without bringing them before a judge or justice of the peace. However, there are strategic considerations that must be taken into account when dealing with this section of the Criminal Code. One strategic consideration is the accuracy of the evidence available to the peace officer when making the arrest. Subsection 503(3) of the Criminal Code describes the offences for which an arrested person may be detained for an additional period. These include offences that carry a maximum sentence of five years or more, or those that involve violence or threats of violence against individuals. It is important for the peace officer to ensure that the accused has committed such an offence without a doubt. Otherwise, they may be in contravention of the accused's rights to be brought before the court as soon as possible. Another strategic consideration is communication between the peace officer and the accused. The peace officer should ensure that the accused is aware of their right to legal counsel while they are being detained. The officer should also inform the accused of the reasons why they are being held in custody and explain the provisions of the Criminal Code that allow for extended detention. This communication helps to avoid misunderstandings and accusations of abuse of power by the peace officer. One effective strategy that could be employed when dealing with this section of the Criminal Code is to obtain legal advice as soon as possible. The accused's counsel could take steps to review the evidence against the accused and seek their release if there are doubts about the validity of the evidence. A lawyer's intervention could also help to prevent any breaches of the accused’s rights if the detention period is not in accordance with the Criminal Code. Another strategy that could be employed is to seek a bail hearing as soon as possible. The defence counsel may appear before a judge or justice of the peace and request a bail hearing to challenge the accused's detention. If the court determines that the accused should not be held in custody, they may be released on conditions, such as the payment of a bail deposit, to ensure their return to court. This strategy would help to prevent prolonged detention and ensure that the accused’s rights are protected. In conclusion, the provisions of Section 497(2) of the Criminal Code must be viewed through the lens of the individual’s rights. Peace officers and defence lawyers should handle any arrest with care to protect the rights and freedoms of accused persons. Communication, accuracy, reviews of evidence and seeking legal advice and bail hearings are some of the many strategies that could be employed. Ultimately, the primary goal should be to ensure that any breach committed in the cause of public safety is measured, necessary, transparent and guided by the rule of law.