INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the authorization of an arrest when a warrant cannot be executed according to proper procedures.
SECTION WORDING
528(1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.
EXPLANATION
Section 528(1) of the Criminal Code of Canada sets out the procedures to be followed when a warrant for the arrest or committal of an accused cannot be executed in accordance with section 514 or 703. This may happen, for example, if the accused is believed to have fled the jurisdiction or is in hiding. In such cases, the section provides that a justice within whose jurisdiction the accused is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement on the warrant. This endorsement, which may be in Form 28, gives the police the authority to arrest the accused within that jurisdiction and bring them before the court. The purpose of this section is to ensure that accused persons who are believed to be evading justice or are in hiding can still be apprehended and brought to court. This helps to ensure that justice is served and that the accused are held accountable for their actions. Overall, Section 528(1) of the Criminal Code of Canada plays a key role in the criminal justice system by ensuring that accused persons cannot avoid arrest and prosecution simply by fleeing the jurisdiction or going into hiding. It helps to maintain public safety, uphold the rule of law, and ensure that accused persons are held accountable for their actions.
COMMENTARY
Section 528(1) of the Criminal Code of Canada, commonly referred to as the "backstop provision," is a crucial aspect of the Canadian legal system. This section authorizes the arrest of an accused person who has a warrant for their arrest, but the warrant cannot be executed. The provision applies to situations where an accused person is believed to be in the jurisdiction of a particular justice, but the justice is unable to execute the warrant. The backstop provision is important because it helps to ensure that accused persons are brought before the courts to face charges. It also helps to prevent accused persons from evading justice, as they can no longer take advantage of the fact that a warrant cannot be executed. The provision also serves to protect the public by ensuring that individuals who are accused of criminal offences are brought to justice, and that they are not free to commit further crimes while evading arrest. The provision is designed to work in conjunction with sections 514 and 703 of the Criminal Code, which outline the procedures for executing warrants. Section 514 pertains to warrants for arrest, while section 703 pertains to warrants for committal. Both of these sections require that the warrant be executed as soon as practicable, but there are situations where this may not be possible. For example, the accused may have fled the jurisdiction, or may be hiding from the authorities. In such situations, the backstop provision allows for the warrant to be authorized by a justice who has jurisdiction over the accused. The justice must be provided with proof, on oath or by affidavit, of the signature of the justice who issued the warrant. This ensures that the warrant is legitimate and that the accused person is the correct individual named in the warrant. Once the justice has authorized the arrest, the accused person can be arrested and brought before the court. The backstop provision thus serves as a safety net, ensuring that accused persons cannot evade justice simply because a warrant cannot be executed. In conclusion, the backstop provision contained in section 528(1) of the Criminal Code of Canada is a crucial aspect of the Canadian legal system. It serves to ensure that accused persons are brought before the courts to face charges, and it helps to prevent accused persons from evading justice. The provision is designed to work in conjunction with other sections of the Criminal Code, and it provides a necessary safety net to ensure that justice is served.
STRATEGY
Section 528(1) of the Criminal Code of Canada provides for the arrest of an accused who has a warrant for their arrest or committal, but the warrant cannot be executed in accordance with Section 514 or 703. This section is particularly useful for law enforcement agencies when they are attempting to arrest an accused who is evading arrest or has gone into hiding. However, when dealing with Section 528(1), there are several strategic considerations that need to be taken into account. Firstly, the law enforcement agency must have credible information about the whereabouts of the accused. Without such information, the court may reject the application for endorsement of the warrant. It is crucial to conduct thorough investigations and gather evidence before proceeding with Section 528(1). Secondly, the court must be satisfied with the veracity of the information provided. The applicant must provide evidence on oath or by affidavit of the signature of the justice who issued the warrant. The information provided must be solid, and the warrant must be properly authenticated to avoid rejection. Thirdly, the law enforcement agency must take into consideration the possible legal ramifications of conducting an arrest under Section 528(1). The accused may still dispute the legality of the arrest and challenge the warrant's endorsement in court. Therefore, it is essential to conduct an arrest in compliance with all legal procedures to avoid any challenges in court. Lastly, law enforcement agencies may need to consider the risk of danger to themselves, the accused, or the public. This could be due to the nature of the crime committed, the accused's criminal history, or the location of the arrest. The law enforcement agency must devise a strategy to address these risks and mitigate them as much as possible. In terms of strategies that could be employed when dealing with Section 528(1), law enforcement agencies could collaborate with various stakeholders such as informants, witnesses, and family members of the accused. They may provide essential information that could lead to the arrest of the accused. Law enforcement agencies could also use various techniques such as surveillance, sting operations, and stakeouts to apprehend the accused. In some cases, law enforcement agencies may rely on the element of surprise to effect the arrest. In summary, Section 528(1) of the Criminal Code of Canada provides a crucial tool for the law enforcement agency to effect the arrest of an accused who is evading the law. However, it is essential to take into consideration the various strategic factors and devise appropriate strategies to effect an arrest in compliance with all legal procedures and mitigating the risks to all parties involved.