Bail/Arrest It occasionally happens that an individual who is arrested is kept overnight until his/her bail hearing the next day. Counsel should be mindful that there is a statutory obligation set out in section 503 of the Criminal Code, requiring that the arrested individual be brought before a justice without delay.
The obligation of the police is to bring an arrested person who is detained before a justice “without delay”. Twenty-four hours is the outer limit of what a reasonable period is, where a justice is available. The police do not have an unqualified right to keep someone in custody for the purposes of investigation for a twenty-four hour period before taking him before a justice.
See R. v. Koszulap, (1974) 20 C.C.C. (2d) 193 (Ont. C.A.).
In R. v. Simpson (1994), 1994 CanLII 4528 (NL CA), 88 C.C.C. (3d) 377 (Nfld. C.A.), at p. 8, rev’d on the issue of remedy 1995 CanLII 120 (SCC),
 1 S.C.R. 449, the court referred to the significance of section 503 of the Criminal Code:
Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation. In some jurisdictions, even during the sitting week, the police will bring an arrested person before a justice, as soon as the various tasks that generally follow an arrest are completed, for hearing as to whether the person should be released or detained. If necessary, a trial will be interrupted for this purpose.
The paramountcy of the liberty of the subject has been recognized in English law from the earliest times. Freedom is a fundamental right. It is not to be taken away except in strict accordance with the law.
Where a person is arrested with or without a warrant, it is the duty of the arresting officer to ensure that that person is not detained any longer than is necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not and, if it is not to continue, what lawful conditions should be attached to the release.
In my view, bringing an individual to the court where the bail hearing is to be conducted within the 24-hour period is not, in itself, sufficient to comply with section 503. The section requires that the accused be “brought before a justice”. This rule operates so that the lawfulness of the arrest can be determined and so that the accused’s freedom is curtailed no more than is necessary. These functions do not occur, however, if the individual is languishing in a holding cell waiting to be brought into court.
A breach of section 503 triggers as section 9 Charter violation, that is, it breaches the accused’s constitutional right not to be arbitrarily detained or imprisoned. Where a serious breach has occurred, a stay of the charge/charges may be the appropriate remedy. Where there is a finding of guilt, counsel should also consider proving the breach and arguing under 24(1) of the Charter that the appropriate and just remedy in the circumstances is the mitigation of sentence.