Chapter 6: Arrest

SECTION 1 - GENERAL

1. The purpose of this chapter is to discuss the issues related to arrest that are contained in the Code of Service Discipline and QR&O, and therefore are applicable to service members and the military police.¹

2. Arrest means taking a person into custody for the purpose of holding or detaining the person in relation to a service offence or criminal matter. Arrest involves the deprivation of a person's liberty by legal authority,² and extends to the entire time that the person is detained.

3. Authority exists for authorized persons to detain a person under certain circumstances before the person is tried for an offence and in some cases before the person is even arrested or charged with an offence. A person is detained where their liberty is restrained other than by arrest.

Authority to Arrest

4. The authority to arrest is contained within many statutes including the NDA³ and the Criminal Code⁴. These statutory provisions are based on the common law, such as, for example citizen's arrest. Limitations on the authority to arrest are provided for, and vary according to, the legislation. These limitations dictate who may be arrested, by whom, and in what circumstances an arrest may be carried out.

5. Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.⁵

Who may be Arrested

6. Anyone subject to the Code of Service Discipline can be arrested pursuant to the NDA.⁶ There is also the authority to arrest persons who are no longer subject to the Code of Service Discipline, but who were subject to that Code at the time the alleged offence was committed.⁷

7. Those who are subject to the Code of Service Discipline are listed in the NDA⁸ and include:

1. officers and NCMs of the Regular Force;
2. officers and NCMs of the Special Force;⁹
3. officers and NCMs of the Reserve Force in certain circumstances;¹⁰
4. persons who are attached or seconded as an officer or NCM to the CF;¹¹
5. persons not otherwise subject to the Code of Service Discipline serving as an officer or NCO of any forces raised and maintained outside Canada and commanded by an officer of the CF;
6. persons not otherwise subject to the Code of Service Discipline who accompany any unit or element of the CF which is on service¹² or active service¹³ in any place;
7. persons attending educational institutions established under section 47;¹⁴
8. alleged spies for the enemy;
9. a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence alleged or committed by the person is in civil or service custody;¹⁵ and
10. a person, not otherwise subject to the Code of Service Discipline, who is serving with the CF who has agreed to be subject to the Code.

8. A person who “accompanies a unit or other element of the CF that is on service or active service”, referred to in paragraph 7(f) above, is defined as:

1. a person who participates in movements, maneuvers, or certain specified duties with any unit or element;
2. a person who is accommodated, or provided with rations, by the unit or element, whether at the expense of the unit or of the individual in any country or place designated by the Governor-in-Council;
3. a dependant, outside of Canada, of a member serving beyond Canada with that unit or element; or
4. a person embarked in a vessel or aircraft of that unit or element.¹⁶

9. When an offence has occurred either on or off DND property, the status of the alleged offender is the primary factor in determining whether the military police have jurisdiction to arrest the person. The jurisdiction of the military police to arrest persons subject to the Code of Service Discipline exists no matter where the alleged offence took place. For example, the military police can arrest a member who is involved in a fight at a bar away from the base.¹⁷ Whether the military police hold the member, or turn the member over to the civilian police in such a circumstance, depends on the offence and any arrangements that have been made with the civilian police for such cases. Where practical, a person who is to be retained in custody should be placed in service custody rather than civil custody.¹⁸

10. Persons not subject to the Code of Service Discipline may also be subject to arrest by the military police acting as a peace officer, where for example, an offence has been committed on CF property¹⁹ or in relation to a Defence establishment.²⁰ In order to do so, however, there has to be a link or a factor linking the alleged offence to the military organization. Furthermore, the link will be sufficient if the alleged offence occurred in a military establishment. Finally, the Military Police will need to have conducted the arrest in relation to the alleged offence within a certain perimeter surrounding the military establishment and within a reasonable delay after the alleged offence occurred.

SECTION 2 - DETENTION BEFORE ARREST

11. If a person is detained by a peace officer or other agent of the state, and this detention interferes with the person's liberty or freedom of action, then section 10 of the Charter gives the person detained the following rights:

1. to be informed promptly of the reasons for the arrest or detention;
2. to retain and instruct counsel without delay and to be informed of that right; and
3. to have the validity of the detention determined by way of habeas corpus,²¹ and to be released if the detention is not lawful.²²

12. Section 10 of the Charter does not apply to all cases when someone is stopped. As part of their regular duties or as part of an investigation, peace officers, members or investigators may have to stop people for various reasons including to obtain information, to issue provincial offences notices, eg. to issue speeding tickets, or for security or safety checks. One example is random roadside checks used to check for licenses, registration, or vehicle safety.

13. Section 10 does apply if a peace officer or someone authorized to enforce the law has assumed physical control over the movement of a person. For example, a driver is stopped by the military police and during the stop the military police form the suspicion that the driver is impaired. If the driver is required to wait in the military police car for the A.L.E.R.T. unit (roadside breathalyser screening device) to arrive, this could constitute a detention for the purposes of section 10.

14. Section 10 also applies if a peace officer or agent of the state does not physically control the movement of the person, but interferes with that person's liberty or freedom of action by means of compulsion or coercion and the person believes there is no choice but to submit or face legal sanctions.²³ For example, if a driver is stopped by a peace officer for a random spot check, and although the driver is not confined or under the physical control of the officer during any questioning or inspection of the driver's vehicle, if the driver feels compelled to submit to avoid legal consequences, section 10 of the Charter would apply.²⁴

SECTION 3 - ARREST WITHOUT WARRANT

15. There are two types of arrest, arrest without a warrant and arrest with a warrant. A Warrant for Arrest is written authorization for the arrest of any specified person for the offence(s) specifically indicated in the warrant.

16. Any person subject to the Code of Service Discipline may be arrested including without a warrant who:

1. has committed;
2. is found committing;
3. is believed on reasonable grounds to have committed; or
4. is charged with having committed a service offence.²⁵

17. All service offences are found in Part III of the NDA. It is important to note that service offences, by virtue of section 130(1) of the NDA, include all offences under other federal statutes, including the Criminal Code and the Controlled Drugs and Substances Act.

18. It is not necessary that a person be charged with a service offence before being placed under arrest. Similarly, it is not always necessary to arrest a person who has been charged with an offence. The circumstances of each case should be considered to determine if arrest is appropriate.²⁶

Arrest by Service Members

19. Service members may arrest members in certain circumstances. The alleged offence, as well as the respective ranks of the members, are factors to be considered in determining the lawfulness of an arrest by a member. A service member may arrest another member where the member:

1. has committed;
2. is found committing;
3. is believed on reasonable grounds to have committed; or
4. is charged with having committed a service offence.²⁷

20. Officers may arrest, or order the arrest of NCMs, other officers of equal or lower rank, and any officer of higher rank who is engaged in a quarrel, fray or disorder.²⁸ NCMs may arrest or order the arrest of any other NCM of lower rank, and any NCM of equal or higher rank who is engaged in a quarrel, fray or disorder.²⁹

21. The CO may designate another person to arrest a person who is neither an officer nor NCM but was subject to the Code of Service Discipline at the time of the alleged commission of a service offence.³⁰

Duty of Members to Arrest

22. A duty to effect an arrest is specifically imposed on any member who is ordered by a superior to arrest a person. The member must carry out the order and effect the arrest even if the member would not normally have been able to do so because of the member's rank or status.³¹

Arrest by Military Police

23. Military police personnel who are appointed for the purposes of section 156 of the NDA, are peace officers with respect to persons subject to the Code of Service Discipline.³² The military police have a broader authority than other members to arrest or detain. The military police can arrest any person subject to the Code of Service Discipline, regardless of the person's rank or status who:

1. has committed;
2. is found committing;
3. is believed on reasonable grounds to be about to commit or to have committed; or
4. who is charged with having committed a service offence.³³

24. Unlike other members, the military police have the authority to arrest someone subject to the Code of Service Discipline who it is believed is about to commit a service offence.³⁴ This includes the authority to arrest someone for an anticipated breach of a condition or conditions on which a person was released from custody.

25. Only the military police have the authority to arrest dependants of service members, who are accompanying the members on service or active service in any place out of Canada, when the dependant is alleged to have committed an offence under the laws applicable in that place.³⁵

Jurisdiction of Civilian Police Officers

26. Members are subject to the civil laws of Canada.³⁶ Therefore, members can also be arrested by civilian authorities including civilian police officers.

27. COs have a duty to assist civil authorities in detecting and apprehending officers and NCMs under their command whose arrest is required on a criminal charge, provided the civilian police produce a warrant or satisfactory evidence of their capacity to act.³⁷ In addition, anyone who neglects or refuses to deliver an officer or NCM for whom a warrant has been issued or to assist in the lawful apprehension of an officer or NCM accused of an offence punishable by a civil court, is guilty of a service offence.³⁸ In most cases the arrest of service members for civilian criminal offences by the civilian police will be co-ordinated with the military police.

Removal from "Controlled Access Areas"

28. Although not an arrest, any person who is not subject to the Code of Service Discipline who is found in or on a "controlled access area"³⁹ in contravention of applicable regulations may be removed.⁴⁰ A peace officer, Commissionaire, officer or NCM, employee or other individual engaged directly or indirectly by the CF or DND who is assigned to enforce access regulations may remove such an individual.⁴¹ Only as much force as is necessary may be used in order to remove the person.⁴² Removal of a person under this regulation does not impair further legal proceedings which may be taken against that person.⁴³

SECTION 4 - ARREST WITH WARRANT

29. Arrests can be made when a warrant for arrest has been issued. Warrants for arrest exist both in the military justice system and in the civilian justice system.

Military Warrants for Arrest

30. A warrant for arrest may be issued by a CO or a delegated officer for the arrest of any person subject to the Code of Service Discipline where that person:

1. has committed;
2. is believed on reasonable grounds to have committed; or
3. is charged under the NDA with having committed a service offence.⁴⁴

Form of Military Warrants for Arrest

31. The form that the warrant should be issued in is found at QR&O 105.06, and a copy is attached at Annex I. The warrant names the person who is authorized to effect the arrest, the name of the issuing officer, the service number, rank and name of the person who is to be arrested, and the alleged offence. The warrant provides direction with respect to where the person is to be taken once arrested. There is also a place on the warrant to indicate, if necessary, that the arrest of an officer of higher rank than the officer issuing the warrant for arrest is required by the exigencies of the service. The warrant must be signed and dated by the issuing officer and must indicate the service number, rank, name, appointment and unit of the issuing officer. One warrant may be issued with respect to several offences of the same nature, and a single warrant for arrest may be issued for the arrest of more than one person.⁴⁵

Use of Warrant for Arrest

32. The member named in a warrant for arrest as being authorized to carry out an arrest, as well as anyone called upon by that member to assist, are authorized to effect an arrest, and to use reasonable force in doing so.⁴⁶ Special considerations apply with respect to the rank of the member ordering or effecting an arrest and the person who is to be arrested, as follows:

1. Arrest of a Superior. An officer issuing a warrant for the arrest of a superior must certify on the warrant that the exigencies of the service require that a warrant for arrest be issued against a superior officer.⁴⁷
2. Arrest of a Subordinate. Unless it is essential to do so, a member should not physically participate in the arrest of any member who is subordinate in rank. Instead, the member should have another member who is equal to or junior in rank to the person being arrested, carry out the arrest.⁴⁸

Civilian Warrants for Arrest

33. Civilian arrest warrants may be issued for the arrest of service members for the contravention of civil legislation or breaches of civil court orders. If the military police become aware that a civilian arrest warrant has been issued for a member, the military police will normally contact the police force who investigated the charge related to the warrant and coordinate the arrest of the member. Where a member becomes aware of the existence of a civilian arrest warrant issued against another member, the military police should be advised. In addition, civilian arrest warrants and warrants of committal may be issued and enforced against members for civilian criminal offences or other offences, including breaches of civilian court orders.⁴⁹

SECTION 5 - RIGHTS AND REQUIREMENTS ON ARREST

Requirement to Submit to Arrest and Lawful Use of Force

34. There is a legal requirement to submit to a lawful arrest. It is an offence for a person subject to the Code of Service Discipline to resist or wilfully obstruct another member who is performing a duty related to the arrest, custody or confinement of a person subject to the Code of Service Discipline. It is also an offence to refuse to assist another member in the performance of a duty pertaining to the arrest of a person subject to the Code of Service Discipline, when called upon to do so.⁵⁰

35. Regardless of who is effecting an arrest, only force that is reasonably necessary in the circumstances can be used to effect an arrest.⁵¹ The use of excess force may lead to liability under the criminal or civil law.⁵² Similarly, the Criminal Code also allows the use of force when carrying out an arrest,⁵³ while imposing criminal responsibility for the use of excess force.⁵⁴ For example, if someone is peacefully submitting to the arrest, it would not be a reasonable use of force for the member to throw the arrested person to the ground.

36. In addition, the Criminal Code includes the offences of obstructing a peace officer,⁵⁵ resisting arrest⁵⁶ and assaulting a peace officer⁵⁷ which further impose duties to submit to an arrest and to assist peace officers in the execution of their duty in effecting arrests.

Indicators of Arrest

37. The member who carries out an arrest must touch the arrested person while explaining that the person is under arrest. Touching is not required if the person being arrested acknowledges the arrest by actions or words.⁵⁸

Powers Incidental to Arrest

38. Powers which exist incidental to arrest include the search of the person being arrested and the search of the immediate surroundings. The purposes of such a search include: guaranteeing the safety of the police or the arrested person, preventing escape, and securing evidence.⁵⁹ A search incidental to arrest could include a search of a motor vehicle, or other areas immediately surrounding an arrested person.⁶⁰

39. Any search should be conducted in a reasonable fashion in view of the circumstances. Except where the arrested person may be an imminent threat, all searches must be conducted by someone of the same gender as the arrested person, and be conducted in an area that affords maximum privacy.

Rights on Arrest or Detention

40. Persons who have been arrested or detained must, without delay, be informed:

1. that they are under arrest or are being detained;
2. of the reason for the arrest or detention;
3. that they have the right to retain and instruct counsel without delay;
4. that they have the right to have access to free and immediate advice from duty counsel provided by the DDCS or other duty counsel in the jurisdiction where the person is arrested or detained and how duty counsel may be contacted; and
5. of the existence and availability of Legal Aid plans, where applicable.⁶¹

41. The above information should be provided in the following form: “You are under arrest for (reason for arrest). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services at the following phone number... Advice may also be available to you from other duty counsel at the following number … . Legal Aid may also be available to you at the following number... Do you understand? Do you want to exercise this right?” ⁶²

42. It is not essential to use this exact wording, as long as the person is made aware of the information set out above. However, it is recommended that the above format be used to ensure that all of the required information is provided.⁶³

43. Certain circumstances may make it impossible to provide the required information to an arrested person immediately following the arrest, such as where the person is unconscious or attempting to escape from custody. In such circumstances, the required information is to be provided to the arrested person as soon as possible.⁶⁴

Right to be Informed of the Reason for Arrest or Detention

44. The regulations clearly provide that the arrested person must be informed of the reason for the arrest or detention without delay. The complete legal description of the alleged offence need not be provided. For this purpose, the offence need only be described in general terms.⁶⁵

45. The right to be informed of the reason for arrest or detention is found in the Charter. The Charter states: that “Everyone has the right on arrest or detention to be informed promptly of the reasons therefor”.⁶⁶

Right to Counsel

46. The right to counsel is fundamental to Canadian criminal law and is codified in the Charter which states: “Everyone has the right on arrest or detention …to retain and instruct counsel without delay and to be informed of that right”.⁶⁷

47. The right to counsel includes the right to consult counsel in private. Where the arrested person has indicated that they wish to exercise the right to counsel, there is a duty on the arresting authorities to refrain from attempting to elicit evidence from an arrested person until the arrested person has had a reasonable opportunity to do so.⁶⁸

48. In a military context, the right to counsel without delay is tempered slightly in deference to military operations, in that the opportunity to contact counsel is to be provided as soon as practical under the circumstances.⁶⁹ Other aspects of the right to counsel, such as privacy while consulting counsel and restrictions on certain police activities until the right has been exercised apply equally to those arrested under the Code of Service Discipline as they do to those arrested pursuant to the Criminal Code.

49. Information about the availability of Legal Aid is to be given to individuals who have been arrested or detained. In the military context, legal advice is available free of charge through the office of the DDCS.⁷⁰ Civilian lawyers may also be available to provide legal services through provincial legal aid plans to members who qualify according to financial criteria and the nature and seriousness of the allegations.⁷¹

50. Where a member is arrested or detained outside of Canada, legal advice is available through the DDCS.

Special Reporting Requirements in Certain Cases

51. Special reporting requirements exist where an officer or NCM above the rank of sergeant is arrested. Immediately upon the arrest of an officer or NCM above the rank of sergeant the CO must report the case to the Director of Military Careers at NDHQ.⁷²

52. A further reporting requirement exists where an officer or NCM has been arrested by a civil authority. The member shall cause the fact of the arrest to be reported to the member's CO.⁷³

Footnotes

¹ The Criminal Code contains various provisions related to arrest which do not specifically apply to members of the CF or the military police in the exercise of their duties.

² Black's Law Dictionary, 5^th ed. (St. Paul, Minnesota: West Publishing Company, 1979) at 100.

³ NDA s. 154.

⁴ Criminal Code s. 31(1) states:

⁵ NDA s. 154(1).

⁶ NDA s. 154(1) and QR&O 105.01 Note A.

⁷ NDA s. 155(3) and QR&O 105.02.

⁸ NDA s. 60(1).

⁹ QR&O 1.02 defines special force as “such component of the Canadian Forces as may be established pursuant to subsection 16(1) of the National Defence Act”.

¹⁰ The circumstances when Reserve Members are subject to the Code of Service Discipline as provided in NDA s. 60(1)(c)as follows:

1. undergoing drill or training, whether in uniform or not;
2. in uniform;
3. on duty;
4. called out under Part VI in aid of the civil power;
5. called out on service;
6. placed on active service;
7. in or on any vessel, vehicle, or aircraft of the Canadian Forces or in or on any defence establishment or work for defence;
8. serving with any unit or other element of the regular force or the special force; or
9. present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces.

¹¹ QR&O 102.05.

¹² NDA s. 33.

¹³ NDA s. 31.

¹⁴ NDA s. 47 provides for the establishment of institutions for the training and education of officers and NCMs, officers and employees of DND, candidates for enrolment in the CF or employment by DND, and other persons whose attendance is authorized by or on behalf of the Minister. This would include the CF College and the Royal Military College of Canada, among other institutions.

¹⁵ For example, while accompanying the CF in Germany, the dependant of a member is subject to the Code of Service Discipline. On the return to Canada, the dependant is no longer subject to the Code of Service Discipline; however, if upon the dependant's return to Canada that dependant is arrested and placed in custody by civil authorities and it is alleged that the dependant committed a service offence while in Germany, the dependant can be arrested pursuant to NDA s. 60(1)(i).

¹⁶ NDA s. 61(1).

¹⁷ See also Section 3 of this Chapter regarding arrests by the military police without a warrant for arrest.

¹⁸ QR&O 105.13 Note A.

¹⁹ Nolan v. R. (1987), 34 C.C.C. (3d) 289 (S.C.C.), and R. v. Haynes (1994), 4 M.V.R. (3d) 217 (N.S.C.A.). In Nolan v. R., the military police pursued a vehicle which had been traveling at excessive speed while exiting the confines of the base and stopped the accused on a public highway. The military police made a breathalyser demand, however the civilian accused refused to comply with the demand. The Supreme Court of Canada held that the military police officer was acting within his lawful duties as prescribed in the Government Property Traffic Regulations, C.R.C. 1978 c. 887, and the Defence Establishment Trespass Regulations, C.R.C. 1978, c. 1047, (repealed and replaced by the Defence Controlled Access Area Regulations SOR/86-957), and QR&O 22.01(2) and therefore fell within the definition of peace officer pursuant to then s. 134 of the NDA (now s. 156). Therefore, the military police officer had the power to follow the civilian driver when he left the base and went onto a public street, and had the authority to issue a breathalyser demand.

²⁰ The authority for military police officers to arrest civilians for an offence in relation to CF property is arguably very narrow. In both Nolan v. R. and R. v. Pile [1982] 14 M.V.R. 96 (Ont. C.A.) the nexus for military police authority related to the enforcement of military law or regulations. As stated by Callaghan J. in R. v. Pile at p.105:

²¹ Habeas Corpus is directly translated to mean "you have the body". The term refers to a type of writ that can be issued by the court and is most often used to require the release of someone being illegally detained.

²² The Canadian Charter of Rights and Freedoms, s. 10. A copy of the Charter is found at Annex A.

²³ R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.).

²⁴ R. v. Hufsky (1988), 40 C.C.C. (3d) 398 (S.C.C.).

²⁵ NDA s. 154(1), and QR&O 105.01.

²⁶ QR&O 105.01 Note B.

²⁷ NDA s. 154(1) and QR&O 105.01.

²⁸ NDA s. 155 (1) and QR&O 105.04(1).

²⁹ NDA s. 155 (2) and QR&O 105.04(1).

³⁰ NDA s. 155(3) and QR&O 105.02.

³¹ QR&O 105.07.

³² Criminal Code s. 2 includes members of the military police who are appointed under NDA s. 156 as peace officers when exercising their authority over someone subject to the Code of Service Discipline, even if the offence was committed by that person off the military establishment (R. v. Courchene (1989), 52 C.C.C. (3d) 375 (Ont C.A.)). The contents of NDA s. 156 is provided in QR&O 105.04(2).

³³ NDA s. 156(a).

³⁴ NDA s. 156.

³⁵ NDA s. 272 and QR&O 105.03 and 105.03 Note. For the purposes of NDA s. 272, dependant means a spouse of a CF member, or any other person who is wholly or mainly maintained by a member or in the member's custody, charge or care.

³⁶ For clarification see QR&O 19.51(1).

³⁷ QR&O 19.51(3).

³⁸ NDA s. 103 and QR&O 103.36.

³⁹ Defence Controlled Access Area Regulations, SOR/86-957, Vol. IV QR&O tab 3.2, s. 2 provides:

⁴⁰ Defence Controlled Access Area Regulations, s. 10 states: “10. Every person found in or on a controlled access area in contravention of these Regulations may be removed therefrom by a security guard, but the security guard shall use only such force as is necessary and that removal shall be without prejudice to any other proceedings that may be taken.”

⁴¹ Defence Controlled Access Area Regulations, s. 2 provides:

⁴² Defence Controlled Access Area Regulations, s. 10.

⁴³ Defence Controlled Access Area Regulations, s. 10.

⁴⁴ NDA s. 157 and QR&O 105.05.

⁴⁵ NDA s. 157(3) and QR&O 105.05 (3).

⁴⁶ NDA s. 154(2), QR&O 105.09 and Note and 105.05 Note.

⁴⁷ NDA s. 157(2) and QR&O 105.05. See also Annex I, Form of Military Warrant for Arrest. An example of when the exigencies of the service require an officer to issue a warrant again a superior officer, is when no officer equal or higher in rank to the officer subject to the warrant is available.

⁴⁸ QR&O 105.10.

⁴⁹ QR&O 19.51(1).

⁵⁰ NDA s. 102 and QR&O 103.35.

⁵¹ NDA s. 154 (2).

⁵² QR&O 105.09 and 22.01 Note B.

⁵³ Criminal Code s. 25(1) and s. 26.

⁵⁴ Criminal Code s. 25.

⁵⁵ Criminal Code s. 129. Obstruction of a peace officer requires a specific act performed to prevent a peace officer form performing their duty or an omission of something that one is legally required to do. Examples of obstruction could include deliberately concealing or destroying evidence or refusing to provide one's name where the peace officer has reasonable grounds to believe that the person has committed an offence.

⁵⁶ Criminal Code s. 129.

⁵⁷ Criminal Code s. 270.

⁵⁸ 10 Halsbury's Laws of England, 3^rd ed., 342 (para. 631) as quoted and confirmed in R. v. Whitfield [1970] S.C.R. 46, 1 C.C.C. (3d) 481 when the Supreme Court of Canada accepted that an accused was placed under arrest when, while the accused was attempting to escape in his vehicle, the police officer reached through the window, grabbed the accused's shirt and said “you are under arrest”. This is explained further by Moreland, Modern Criminal Procedure (New York, Bobbs, 1959) at 21 as cited in R.E. Salhany, Canadian Criminal Procedure, 6^th ed. (Aurora: Canada Law Book Inc., 1998) at 3-3 as follows:

⁵⁹ Martin's Criminal Code, 1999, CH / 30, Notes pertaining to Section 8 of the Charter state the following: “In order for a search to be incidental to arrest, the police must be attempting to achieve some valid purpose connected to the arrest. The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others and the discovery of evidence. …The police must have one of the purposes for a valid search in mind and the officer's belief must be a reasonable one so there is some reasonable basis for doing what the police officer did… Furthermore, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest.” R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.).

⁶⁰ Many issues surrounding search and seizure are complex and involve Charter rights. Search and seizure issues are dealt with extensively in Chapter 5, Powers of Investigation, Inspection, Search and Seizure.

⁶¹ QR&O 105.08(1).

⁶² QR&O 105.08 Note A.

⁶³ QR&O 105.08 Note A.

⁶⁴ QR&O 105.08(2).

⁶⁵ QR&O 105.08 Note B.

⁶⁶ Canadian Charter of Rights and Freedoms s. 10.

⁶⁷ Canadian Charter of Rights and Freedoms s. 10(b).

⁶⁸ R. v. Manninen (1987) 34 C.C.C. (3d) 385, [1987] 1 S.C.R.1233, 58 C.R. (3d); R. v. Ross (1989), 46 C.C.C. (3D) 129, [1989] 1 S.C.R. 3, 67 C.R. (3d) 209; re: privacy: R. v. Dempsey (1987), 77 N.S.R. (2d) 284, 46 M.V.R. 179 (C.A.).

⁶⁹ QR&O 105.08(3).

⁷⁰ Toll-free numbers for these services are available from military police, from unit disciplinary personnel or from the unit legal advisor.

⁷¹ This could include service members who have been arrested or charged with a non-service offence and are to be tried in the civilian courts or who have been charged with a serious service offence which would likely be tried by way of court martial. QR&O 101.20(2)(a).

⁷² QR&O 105.11.

⁷³ QR&O 19.56.