Criminal law

Arrest

What does it mean to place an adolescent “under arrest”?

When a young person is stopped by the police and is not free to leave or do whatever he wishes, he is considered to be “detained”. In most cases, this is when the police will announce he is "under arrest". However, sometimes they will decide to let him leave.

The decision to arrest an adolescent is a serious matter. The law states when the police can arrest a young person. The police can’t arrest someone just because they feel like it!

In Jonas’ case, the police officer was authorized to arrest him because she caught him red-handed. In fact, when he broke the windows, Jonas was committing an offence called “mischief”.

If an adolescent is questioned by the police, does it mean he will be arrested?

No. There are differences between questioning a person, detaining him and placing him under arrest.

Returning to our example, suppose the police officer arrived in the school yard and asked Jonas and his friends to approach her. She then asked them what happened and wanted to know which one of them broke the windows. At that moment, Jonas is being questioned.

But once Jonas believes he is not free to leave or thinks he has to follow the police officer’s instructions, he is being "detained". It is at that point that the officer will probably decide whether to arrest him.

Are the police the only people who can arrest an adolescent?

No. Anyone who witnesses a crime can arrest the person responsible. But once the arrest has been made, the police must be contacted.

At school, an arrest could be carried out by a principal, a teacher or a monitor.

If the offence is committed outside of school, a security guard, passerby or neighbourhood resident can make an arrest.

This means Jonas could have been arrested by a school yard monitor.

Under what circumstances can an adolescent be arrested?

To arrest an adolescent, the police must have reasons to believe he committed an offence or is about to commit one. Of course, the police can make an arrest if they catch a person in the middle of committing an offence.

In Jonas’ case, the police officer saw him breaking the windows, so she clearly had sufficient reason to believe that he committed an offence.

A young person cannot be arrested if he is under 12 years old. Since Jonas is 14, the police can arrest him. However, Jonas will not be treated in the same way as an adult who has committed the same offence. This is because there is a special law for adolescents between the ages of 12 and 17 called the Youth Criminal Justice Act.

Does an adolescent have to be caught red-handed before he can be arrested?

No. The police do not have to catch a young person in the act to be able to arrest him. Anyone who has witnessed an offence being committed can report it to the police. The police can then decide whether to make an arrest.

For example, if a neighbour saw Jonas breaking the school windows, the neighbour could report the incident to the police and the police could arrest Jonas.

To learn more about making a report about someone breaking the law, see the Infosheet entitled The Complaint: An Essential Step.

Can the police choose not to arrest a young person who has committed an offence?

Yes. The police can decide not to arrest a young person who has committed an offence.

If they don’t make an arrest, the police aren’t just doing the young person a random favour! The police make their decision based on several factors, such as the age of the adolescent, his attitude, the nature of the offence and any damage caused.

What happens during an arrest?

Generally, the police officer approaches the adolescent and says, “You are under arrest for the crime of X or Y.”

The police have the right to use necessary force to make an arrest. For example, if Jonas had taken off, the police officer could have chased him and caught him by the arm to force him to stop. Resisting an arrest is an offence called “obstructing a peace officer”.

While arresting the adolescent or very soon after, the police have the duty to do the following:

• Quickly inform him of the reason for his arrest (In other words, they must explain the offence he is accused of committing.)
  
• Read him his rights, in particular the right to remain silent and the right to consult a lawyer

.

What happens after the arrest of an adolescent?

After arresting an adolescent, the police officer must immediately inform him of his right to consult a lawyer and to not answer any questions, also called the right to remain silent.

(The police must also inform a person of these rights when he is is detained. See the questions above about what it means to be "detained".)

She can also handcuff the young person and do a quick frisk search. Generally, the adolescent is brought to the police station, where he has a chance to contact a lawyer. See the Infosheet Understanding Your Right to a Lawyer to learn more about this subject.

If the adolescent is not taken to the police station, he is given a document with a date to report to court.

It is difficult to generalize about what happens at the police station. There are no strict guidelines for the police. However, there are certain administrative formalities that generally must be followed. For example, when an adolescent is arrested for a criminal act like an armed robbery or sexual assault, the police can take his fingerprints right away.

The police can then decide whether the young person can go home while waiting to appear before a judge. The general rule is that adolescents are allowed to go home. They will usually only be held when the offence is very serious (for example, murder, attempted murder or sexual assault) or they have committed other offences before.

If the young person is not released, he will be held separately from adults and must be brought before a judge within 24 hours of his arrest.

If the Crown counsel (the lawyer responsible for the legal proceedings against the adolescent) objects to releasing the young person, then a hearing takes place and a judge decides if it is appropriate to hold the adolescent while he awaits trial.

For more information on this subject, see the Infosheet What You Need to Know About Appearing in Youth Court.

Are charges automatically laid against a young person who has been arrested?

No. The police have the power to decide whether the file should be transferred to the Crown counsel, who decides whether to charge an adolescent.

Also, whether or not a formal arrest occurs, the police must determine if it is appropriate to use an “extrajudicial measure”, or a punishment that is an alternative to the formal court process, such as a warning.

So, the police have the following choices: they can take no further action and release the young person, issue a warning or refer him to an organisation to get help (for example, anger management counselling). Finally, even if the police decide to transfer the file to the Crown counsel, the Crown can still decide to use an extrajudicial measure.

To learn more, see the Infosheets Extrajudicial Measures: Keeping Young People Out of Court and Extrajudicial Sanctions.

When can an adolescent contact his parents?

An adolescent has the right to contact his parents as soon as he is arrested and at the police station.

Also, even if he wanted to, an adolescent cannot keep his arrest a secret: the police are obliged to inform his mother or father what happened and explain the legal steps that will follow.

To find out more about this subject, see the Infosheet Notifying Parents.

1. Sûreté du Québec
2. Service de police de la Ville de Montréal
3. Texte de la loi