An unlawful arrest is a serious violation of an individual’s rights under Canadian law. While police officers are granted significant authority to enforce the law, their powers are not unlimited. When an arrest is made without legal justification, it not only undermines public trust in law enforcement but can also have life-altering consequences for the person being detained. Understanding what constitutes an unlawful arrest, the legal protections in place, and what remedies are available is crucial for safeguarding your rights.
What Is an Arrest in Canada?
An arrest occurs when a police officer takes physical control of a person with the intention of charging them with a crime. This involves informing the person that they are under arrest and restricting their freedom of movement. However, for an arrest to be valid, it must comply with the requirements of the Canadian Charter of Rights and Freedoms and the Criminal Code.
A lawful arrest typically requires three elements:
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The officer has reasonable and probable grounds to believe the individual has committed, is committing, or is about to commit an offence.
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The officer identifies themselves and informs the person they are under arrest.
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The officer informs the person of their right to counsel under section 10(b) of the Charter.
Failure to meet these standards may render an arrest unlawful.
Defining an Unlawful Arrest
An unlawful arrest occurs when the police detain someone without meeting the necessary legal thresholds. This can happen in a variety of circumstances, such as:
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Arresting someone without reasonable grounds
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Failing to properly identify themselves as police officers
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Not informing the person of the reasons for their arrest
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Ignoring the individual’s Charter rights, such as access to legal counsel
In such cases, the arrest can be invalid, and the evidence obtained as a result may be excluded in court.
Reasonable and Probable Grounds
One of the most important requirements for a lawful arrest is the presence of reasonable and probable grounds. This standard is higher than mere suspicion but lower than proof beyond a reasonable doubt. For example, an officer may have reasonable grounds to arrest someone for theft if they were seen leaving a store with unpaid merchandise. By contrast, detaining someone simply because they appear nervous near a store would not meet this standard.
Charter Rights and Unlawful Arrest
The Canadian Charter of Rights and Freedoms provides robust protections against unlawful arrest. Section 9 of the Charter guarantees the right not to be arbitrarily detained or imprisoned. Section 10 further sets out that everyone has the right to be informed promptly of the reasons for their arrest and to retain and instruct counsel without delay.
When the police fail to uphold these rights, the arrest may be deemed unlawful. Moreover, section 24 of the Charter provides remedies, including the exclusion of evidence or even the dismissal of charges, if a person’s Charter rights have been violated.
Common Examples of Unlawful Arrest
There are several situations where unlawful arrests commonly occur:
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Mistaken identity: When someone is arrested based on an error, such as resembling a suspect.
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Profiling: Arrests based on racial, cultural, or socioeconomic bias rather than legitimate grounds.
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Failure to read rights: If police fail to advise an individual of their right to counsel.
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Exceeding police authority: For example, arresting someone during a routine traffic stop without lawful justification.
Consequences of an Unlawful Arrest
For the individual, an unlawful arrest can cause emotional distress, reputational harm, and potential loss of employment or housing. Even if the charges are later withdrawn, the experience can leave lasting damage.
For the justice system, unlawful arrests undermine public confidence in law enforcement and can lead to the collapse of criminal cases. Evidence obtained as a result of an unlawful arrest is often excluded under the Charter, which may result in charges being stayed or dismissed.
Civil Remedies for Unlawful Arrest
Beyond criminal proceedings, individuals who have been unlawfully arrested may have grounds to pursue civil action against the police or the government. This can include claims for:
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False imprisonment
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Assault or battery if excessive force was used
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Malicious prosecution if charges were pursued without proper grounds
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Violations of Charter rights
These civil remedies aim to provide compensation for damages such as emotional harm, loss of income, and harm to reputation.
How to Protect Yourself During an Arrest
If you believe you are being unlawfully arrested, it is important to remain calm and avoid escalating the situation. You should:
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Ask the officer to state clearly why you are being arrested.
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Exercise your right to remain silent.
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Request immediate access to legal counsel.
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Avoid resisting physically, as this could lead to additional charges.
Any concerns about the lawfulness of the arrest should be addressed later through legal channels, not during the arrest itself.
The Role of a Criminal Defence Lawyer
If you have been unlawfully arrested, consulting with a criminal defence lawyer is essential. A lawyer can review the details of your case to determine whether your rights were violated, seek to have improperly obtained evidence excluded, and pursue remedies available under the law.
A skilled lawyer can also assess whether civil action may be appropriate, ensuring that you are compensated for any harm caused by the unlawful arrest.
Contact Us for a Free Consultation
If you or someone you know has experienced an unlawful arrest, do not face the situation alone. Contact us now to schedule a free, confidential consultation with De Boyrie Law.
Alex is a dedicated criminal defence lawyer serving Toronto and the GTA. He has experience handling a wide range of charges including bail hearings, assault, sexual offences, drug crimes, firearms, impaired driving, and more. Known for his professionalism, availability, and strong advocacy, Alex takes pride in guiding each client with care and consistency. If you’ve been charged with a criminal offence, we offer a free consultation so you can explore your legal options with no financial risk.
