|
Criminal - Warrantless Arrest (3). R. v. Carignan
In R. v. Carignan (SCC, 2025) the Supreme Court of Canada dismissed a Crown appeal, here brought against a Quebec CA decision that found that "the interpretation of s. 495(2) and (3) [SS: 'Arrest without warrant by peace officer - (2) Limitation and (3) Consequences of arrest without warrant'] Cr. C. adopted by the trial judge was incorrect".
Here the court reviews the warrantless arrest provisions of CCC 495, their history, and jurisprudence - both pre and post-Charter:A. Powers of Arrest Provided for in Section 495 Cr. C.
[24] To properly identify the legal framework applicable to this appeal, and for ease of reference, I will reproduce in full s. 495 Cr. C., which establishes one of the powers of arrest without warrant held by peace officers and delineates the contours of this power:495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). [25] It appears from the foregoing that s. 495(1)(a) Cr. C. gives a peace officer a power of arrest without warrant in three situations: where (1) a person has committed an indictable offence, (2) a person is about to commit an indictable offence, or (3) the peace officer believes on reasonable grounds that a person has committed an indictable offence. But the power so conferred is not absolute.
[26] This is because s. 495 Cr. C. also includes subss. (2) and (3). These provisions were described by both parties as limiting, circumscribing or restricting a peace officer’s discretion to make an arrest without warrant. The nature and scope of these provisions are precisely what I clarify in these reasons.
B. History of Arrest Without Warrant in Canada
[27] The power of peace officers to make arrests without warrant, which at one time involved very broad discretion, was the subject of a major reform in which the first iterations of the provisions that are now s. 495(2) and s. 495(3) Cr. C. were enacted. At the outset of the analysis, it is important to review the circumstances that led to their enactment, focusing more specifically on the report of the Canadian Committee on Corrections (“Committee”) entitled Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections (1969) (“Ouimet Report”) and the parliamentary debates that preceded their enactment.
(1) Ouimet Report
[28] Until 1972, the Criminal Code did not regulate the exercise of the power of peace officers to make arrests without warrant on the basis that an indictable offence had been or was about to be committed or that a criminal offence was being committed. The Criminal Code simply stated the grounds required for an arrest to be legally justified, which can now be found in s. 495(1)(a) and (b) (see Crankshaw’s Criminal Code of Canada, R.S.C. 1985 (rev. ed. (loose‑leaf)), at § 495:HIST). At the time, the power of arrest without warrant was set out in the following terms in s. 449 of the Criminal Code, R.S.C. 1970, c. C‑34 (“Cr. C. (1970)”):449. A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence or is about to commit suicide,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which that person is found. However, no limitation was set out at the time in the Criminal Code to narrow the scope of the former s. 449 Cr. C. (1970), as is the case with the current s. 495(2) Cr. C., titled “Limitation” (“Restriction”).
[29] In the 1960s, the federal government established the Committee, chaired by Justice Roger Ouimet, to study Canada’s correctional system and recommend desirable legislative changes. In 1969, the Ouimet Report was released. The Committee concluded from its survey of the powers of peace officers in Canada that these powers maintained “a reasonable balance . . . between the requirements of the general security and the protection of the fundamental rights of the individual” (p. 49). The Committee nevertheless noted that the power of peace officers to make arrests without warrant was “broad” (p. 91). The Committee was of the view that arrests without warrant were too frequent and were often not justified in the public interest, because in many cases other methods would have sufficed to secure the accused’s attendance at trial (pp. 42 and 92).
[30] The Committee accordingly recommended that the Criminal Code be amended to incorporate public interest criteria that would govern decisions about whether to make an arrest without warrant:The Committee therefore recommends that section 435 of the Criminal Code be amended to require not only reasonable grounds to believe that the person arrested has committed or is about to commit an indictable offence but also reasonable grounds to believe that immediate arrest is necessary in the public interest and to provide that a police officer may arrest a person whom he finds committing an offence punishable on summary conviction if he has reasonable grounds for believing that immediate arrest is necessary in the public interest. [Emphasis deleted; p. 92] (2) Enactment of the Bail Reform Act
[31] On the strength of those recommendations, the then Minister of Justice, John N. Turner, introduced Bill C‑218, which would become the Bail Reform Act, S.C. 1970‑71‑72, c. 37 (reproduced in R.S.C. 1970, c. 2 (2nd Supp.)), once it received royal assent. The purpose of that statute was to implement two legislative reforms. The first was designed to limit the use of arrest by replacing it with other methods, such as a summons or an appearance notice. The second was aimed at remedying the injustice associated with cash bail, which had the effect of penalizing people who had limited financial resources and who were therefore obliged to find a surety. It is the first of these reforms that is of interest to us here, because it forms the backdrop against which the provisions equivalent to the current s. 495(2) and (3) Cr. C. were introduced.
[32] In the House of Commons, Minister Turner explained the reasons that had led the government to propose such a reform of the powers of arrest conferred on peace officers. He stressed the importance of maintaining public confidence in peace officers (House of Commons Debates, vol. 3, 3rd Sess., 28th Parl., February 5, 1971, at p. 3114 (Hon. J. Turner)). Although the Minister emphasized the central role of arrest in the criminal process, he acknowledged that unnecessary arrests could undermine such confidence and that the law had to provide peace officers with clear guidelines for judging whether an arrest was necessary (p. 3114). The Minister therefore said that there was a need to reform the legislation governing arrests without warrant by peace officers.
[33] One of the bill’s stated objectives was to “avoid unnecessary pre‑trial arrest and detention” (House of Commons Debates, February 5, 1971, at p. 3116 (Hon. J. Turner)). According to Minister Turner, the law then in force did not give peace officers the “flexibility or the . . . guidelines” they needed to judge whether an arrest without warrant should be made (p. 3114). In order to avoid unnecessary arrests without warrant, he believed that a peace officer “should be obliged not to arrest without a warrant where he has reasonable and probable cause to believe that the public interest may be secured by proceeding other than by arrest” (with an exception being made, of course, for cases like murder or serious offences against public order) (ibid.).
[34] Discussing more specifically how the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.) would limit the power of arrest, the Minister stated the following:... I assume that the criminal law in this country and every provision of it will be enforced with the best honest human judgment that it can be enforced by the police and the magistrates of this country. What this Bill does is alter the unfettered discretion of the police to arrest . . . to a discretion that he must exercise not to arrest in a number of offences where he has reasonable and probable grounds to believe that the public interest can be satisfied by not arresting. [Emphasis added.]
(Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 11, 3rd Sess., 28th Parl., March 4, 1971, at p. 14; see also pp. 10‑13) [35] That being the case, Parliament was aware of the heavy impact that those additional limitations might have on the work of peace officers. It recognized “that decisions by the police may have to be made under difficult conditions”, in other words, that peace officers might be called upon to make quick decisions in the heat of the action (House of Commons Debates, February 5, 1971, at p. 3116; see also p. 3117). It therefore sought to limit the consequences of such unnecessary arrests for peace officers themselves, notably by lessening the possibility of their conduct being the subject of criminal or penal proceedings relating more specifically to their personal liability, but also to that of any person responsible for those peace officers, such as their employer.
[36] Minister Turner explained in this regard that if a police officer made a mistake by arresting someone without warrant even though this was not permitted under the new limitations, “then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 8, 3rd Sess., 28th Parl., February 23, 1971, at p. 7; see also pp. 8‑9). For a person arrested in violation of the then new limitations set out in the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.), the only possible remedy was an award of damages in a civil suit relating more specifically to the conduct of the peace officer who made the arrest without warrant.
[37] To the question of what would happen if a peace officer made an arrest contrary to s. 495(2) Cr. C., Minister Turner replied as follows:If he arrests and it later turns out that, in judgment, he did not need to arrest because the public interest would have been served just as well or better by not arresting, then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest.
... That means that the person who wants to sue civilly for having been brought in to the desk and booked must establish that the policeman did have reasonable and probable grounds to believe that the public interest could be satisfied without so arresting him. Instead of the policeman having to show that he had reasonable and probable grounds for arresting, the person brought in had to show that there were reasonable and probable grounds for not arresting. In a doubtful case that gives the benefit of doubt to the policeman who has to make this snap judgment.
...
So there are two separate situations here. If there were no grounds to arrest at all then the burden of proof is on the policeman. If there were grounds to arrest but under this new Bill he did not have to arrest, then the burden of proof is on the person to show that he need not have been brought in, although there was justification for arresting him. There are two separate situations there.
In other words, there are two factors that policemen have to decide. First of all is there grounds for arresting at all? Secondly, if there are grounds for arresting, are there grounds for bringing him in? On the first the burden of proof is on the policeman in civil cases, on the second the burden of proof is on the person who was brought in. [Emphasis added.]
(Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at pp. 7‑9) [38] Similar remarks were made again by Minister Turner before the Committee, though in different terms (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14):Subsection (3) ... says that notwithstanding the failure of a police officer to exercise his discretion properly in accordance with the Bill — you know, we are dealing with human judgments here — if the police officer makes the wrong judgment, he is going to be protected under paragraph (a) from a criminal suit, as he is now, but he is not protected under paragraph (b) from a civil suit. All that paragraph (b) says is that he is open to a civil suit if he makes a mistake in judgment but the burden of proof is on the person who feels that he has been wronged by the exercise of that judgment.
So the ultimate sanction is a civil suit and . . . I believe that the police of this country, if they accept this Bill as I believe they will be, and I am trying to listen to their objections both at the brotherhood level, and the association level, and the chiefs of police level — I think . . . they will try to live within its sphere. [Emphasis added.] [39] The Bail Reform Act came into force on January 3, 1972. There have been no substantive amendments to the former s. 450(2) and (3) Cr. C. (1970) since the initial enactment thereof.
C. Jurisprudence on the Interpretation of Section 495(2) and (3) Cr. C.
[40] Appellate courts across the country have adopted an interpretation of s. 495(2) and (3) Cr. C. that is more in line with the approach put forward by the Crown in this case. This is, in the words of Healy J.A., the “dominant view” (C.A. reasons, at para. 12, fn. 12). I propose to outline it by looking first at decisions rendered before the Charter was enacted in 1982, then at those rendered after its enactment.
(1) Pre‑Charter Decisions
[41] Shortly after the passage of the Bail Reform Act, the current s. 495(3) Cr. C. was considered by several appellate courts in this country. In all of those cases, one of the charges involved was that of unlawfully resisting arrest (now s. 129(a) Cr. C.; formerly s. 118(2)).
[42] In R. v. Adams (1972), 1972 CanLII 867 (SK CA), 21 C.R.N.S. 257, the Saskatchewan Court of Appeal held that s. 495(3) “must be construed as denying the right to raise a defence, based on the non‑compliance with subs. (2), in any proceedings under the Code or under any other Act of Parliament” (p. 260). The court added that, in its opinion, “because of subs. (3) no reliance can be placed on subs. (2) to establish that the peace officer, for non‑compliance with the requirements of that subsection, was not acting lawfully and in the execution of his duty” (ibid.).
[43] That reasoning was followed by the courts of appeal of British Columbia and Alberta, respectively, in R. v. McKibbon (1973), 1973 CanLII 1395 (BC CA), 12 C.C.C. (2d) 66 (B.C.C.A.), at p. 70, and R. v. Fuhr, 1975 CanLII 1520 (AB CA), [1975] 4 W.W.R. 403 (Alta. C.A.), at p. 406.
[44] In McKibbon, the respondent was charged with assaulting a peace officer with intent to resist lawful arrest, although no charge was laid against him for the underlying offence of impaired driving. The British Columbia Court of Appeal followed Adams and concluded as follows:[Subsection (3)], which specifically applies notwithstanding s‑s. (2), makes it clear that a peace officer who acts under s‑s. (1)(a) is deemed to be acting lawfully for the purposes, inter alia, of any proceedings under the Criminal Code. In my view, that means that as he is arresting without warrant with the grounds and belief set out in s‑s. (1)(a), he is still acting lawfully and his arrest is lawful. [p. 70] [45] In Fuhr, the Alberta Court of Appeal also followed Adams in the context of a charge of unlawfully resisting a peace officer engaged in the execution of his duty:I am of the view that the limitations set out in subs. (2) of the powers granted a peace officer under subs. (1) do not afford a defence to the present charge, in view of the deeming words found in subs. (3). Subsection (3) provides that if a peace officer is acting under subs. (1), he is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Code. [p. 406] [46] It goes without saying that the question of whether a motion under s. 9 of the Charter could be brought to challenge the validity of an arrest contrary to s. 495(2) Cr. C. was not addressed in those cases, as the Charter had not yet been enacted. Prior to its enactment, the recourses available to an accused who had been unlawfully arrested were very limited and amounted mainly to the possibility of raising a defence against a charge of obstruction or resisting arrest. Not only did peace officers have broad discretion at the time to make arrests without warrant, but courts could exercise their discretion to exclude evidence only in rare circumstances, where a very high threshold was met (R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272, at p. 293; see also S. Coughlan, “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015), 71 S.C.L.R. (2d) 415, at pp. 429‑30). Among other things, courts did not have the power — which they do today under s. 24 of the Charter— to exclude evidence on the ground that its admission would bring the administration of justice into disrepute (Wray, at p. 287, per Martland J.).
[47] The decisions rendered by certain appellate courts in this country on the interpretation of s. 495(3) Cr. C. following the enactment of the Charter in 1982 merit particular attention. Indeed, the analysis in those decisions is based on the law applicable since the coming into force of the Charter, just like the analysis that this Court must undertake in the instant case.
(2) Post‑Charter Decisions
[48] Since the advent of the Charter, most of the decisions interpreting s. 495(3) Cr. C. and its interaction with s. 9 of the Charter have found that every criminal proceeding — regardless of the identity of the accused — is a “proceedin[g] under [the Criminal Code] or any other Act of Parliament” contemplated by s. 495(3)(a) Cr. C.
[49] In R. v. Cayer (1988), 1988 CanLII 9879 (ON CA), 28 O.A.C. 105, a decision rendered by the Ontario Court of Appeal in 1988, the issue was whether the effect of s. 495(3)(a) Cr. C. was that an arrest authorized by s. 495(1) Cr. C. became unlawful where the requirements of s. 495(2) Cr. C. were breached. The Ontario Court of Appeal, relying on the reasons given in Adams and McKibbon, adopted the following interpretation of s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) (at para. 33):... notwithstanding subs. (2), a peace officer exercising his power under s. 450(1) is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Criminal Code or any other Act of Parliament. Thus, a peace officer exercising his power of arrest without warrant under s. 450(1) is deemed by s. 450(3) to be acting lawfully for the purpose of any proceedings under the Code or any other Act of Parliament, even though, in arresting a person without warrant he has breached the duty imposed on him by s. 450(2) not to arrest the accused in the circumstances therein specified ... [50] Further on, the Ontario Court of Appeal added that “[t]he fact that the arrest may contravene s. 450(2) [now s. 495(2)] of the Code does not ipso facto make it arbitrary under s. 9 of the Charter. If the arrest does contravene s. 450(2) of the Code, it is, of course, lawful under s. 450(3)” (Cayer, at para. 46). The court ultimately concluded that there had been no contravention of s. 495(2) because it was not “unreasonable in the public interest to arrest the accused to prevent the continuation or repetition of the offence” (para. 47).
[51] Nearly 30 years later, in R. v. Jowett Work, 2019 BCCA 236, 379 C.C.C. (3d) 187, the British Columbia Court of Appeal also had to interpret s. 495(3) Cr. C. In that case, the accused had been arrested without warrant for theft and, in a search incident to the arrest, the police had discovered drugs. During the voir dire to determine the lawfulness of the arrest, the trial judge found that the officers had breached the requirements of s. 495(2) Cr. C., thereby making the arrest unlawful.
[52] The British Columbia Court of Appeal allowed the Crown’s appeal and admitted the evidence from the search incident to the arrest. The court noted that s. 495(3)(a) Cr. C. expressly applies “for the purpose of ‘any proceedings’ under the Criminal Code” (Jowett Work, at para. 38). In the court’s view, the effect of the provision is to make the peace officer’s conduct “lawfu[l] and the arrest . . . lawful as long as the Crown establishes that the officer had reasonable and probable grounds to arrest under s. 495(1)(a) or (b)” (para. 32). Thus, in its opinion, there was no need to consider s. 495(2) Cr. C., as any non‑compliance with that provision would not, in a criminal proceeding, render an otherwise lawful arrest unlawful, in light of the presumption of lawfulness in s. 495(3)(a) Cr. C. (para. 30).
[53] In R. v. Veen, 2022 ABCA 350, 51 Alta. L.R. (7th) 417, the Alberta Court of Appeal in turn addressed the interpretation of s. 495(3) Cr. C. In that case, the accused had been arrested and then detained at the police station after being found by the police in the driver’s seat of his truck with an empty beer can nearby. In a voir dire based on s. 9 of the Charter held during his trial, the accused challenged the lawfulness of his arrest, believing it to be contrary to s. 495(2) Cr. C. The Alberta Court of Queen’s Bench (sitting on appeal from the decision of the Alberta Provincial Court) granted the accused’s request for a voir dire and excluded the evidence obtained following the arrest. In its opinion, “[s]ubsection (3) should not be interpreted as overriding the duty not to arrest[, because it] is relevant in instances where a police officer is facing criminal liability” (R. v. Veen, 2020 ABQB 99, 10 Alta. L.R. (7th) 192, at para. 74).
[54] For its part, the Alberta Court of Appeal was of the view that the appeal should be allowed and the evidence obtained following the accused’s arrest admitted. It found that while the police officer may have made a mistake in judgment by arresting the accused without warrant, that mistake did not negate the lawfulness of the arrest under s. 495(3)(a) Cr. C. As a result, the accused could not raise non‑compliance with s. 495(2) Cr. C. as a defence. However, the Court of Appeal specified that this type of mistake could be the subject of a civil suit or internal disciplinary measures against the police officer concerned under s. 495(3)(b) Cr. C. In support of that conclusion, the Court of Appeal relied in part on pre‑Charter case law as well as on the wording of s. 495(3)(a) Cr. C. itself and the parliamentary debates. . R. v. Carignan
In R. v. Carignan (SCC, 2025) the Supreme Court of Canada dismissed a Crown appeal, here brought against a Quebec CA decision that found that "the interpretation of s. 495(2) and (3) [SS: 'Arrest without warrant by peace officer - (2) Limitation and (3) Consequences of arrest without warrant'] Cr. C. adopted by the trial judge was incorrect".
Here the court summarizes this warrantless arrest case:[1] This appeal concerns the interpretation of s. 495(2) and s. 495(3) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which govern the power of peace officers under s. 495(1) Cr. C. to make arrests without warrant. The question is whether, in a criminal proceeding, a judge can grant a motion under s. 9 of the Canadian Charter of Rights and Freedoms alleging the unlawfulness and arbitrariness of an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C.
[2] It must be acknowledged that s. 495(2) and s. 495(3) Cr. C. are not drafted in the clearest manner. The proof of this is that courts across the country disagree on the interpretation to be given to them. To decide this appeal, I rely on the modern approach to statutory interpretation, which requires that the meaning of these provisions be ascertained in light of their text, their context and their purpose.
[3] First, I interpret s. 495(2) Cr. C. to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. My analysis leads to the conclusion that this provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) Cr. C. is unlawful under the Criminal Code. This provision is not merely a guideline, a practice guide or a suggestion from Parliament. On the contrary, it obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) Cr. C. are met.
[4] Second, I interpret s. 495(3) Cr. C. to determine whether its effect is to deprive an accused of the opportunity to allege an infringement of s. 9 of the Charter and to obtain a remedy under s. 24 in a criminal proceeding relating to the accused’s own criminal liability. My analysis leads me to conclude that this provision applies in very specific cases, namely where a proceeding specifically concerns the liability of the peace officer who made an arrest contrary to s. 495(2) Cr. C. and of any person responsible for that peace officer. On the one hand, s. 495(3)(a) Cr. C. applies where the proceeding is brought under the Criminal Code or any other Act of Parliament and concerns the criminal liability of the peace officer or of persons responsible for that officer. On the other, s. 495(3)(b) Cr. C. applies where the proceeding is brought under a statute that is not the Criminal Code or another Act of Parliament. This includes a civil proceeding that concerns the civil liability of the peace officer who made the arrest contrary to s. 495(2) Cr. C. or of persons responsible for that officer.
[5] In sum, the common feature of s. 495(3)(a) and (b) Cr. C. is that the proceeding must necessarily relate to the criminal or civil conduct of a peace officer where there has been a contravention of s. 495(2) Cr. C. This therefore means, for the purposes of this appeal, that s. 495(3) Cr. C. is not applicable, since this appeal concerns a criminal proceeding relating to the criminal liability of the person arrested without warrant. Section 495(3)(a) Cr. C. thus does not nullify from the outset the chances of success of a person arrested without warrant who would like to challenge the lawfulness of his or her arrest through a voir dire based on s. 9 of the Charter.
[6] Section 495(2) Cr. C. is mandatory in nature and allows an accused to raise, under s. 9 of the Charter in the context of a voir dire, the unlawfulness and arbitrariness of an arrest that does not comply with this provision. Moreover, s. 495(3) Cr. C., properly interpreted, cannot serve in this case to immunize an arrest contrary to s. 495(2) Cr. C., since the proceeding does not relate to the criminal liability of a peace officer or of persons responsible for that officer.
[7] The trial judge was required in this case to hold a voir dire to determine the lawfulness of the respondent’s arrest without warrant. The respondent’s motion was not manifestly frivolous, contrary to what was decided. The failure to hold a voir dire is a reviewable error of law that warrants a new trial.
....
G. Application to the Facts
[140] In light of the above interpretation, I would dismiss the appeal and uphold the order that the respondent be given a new trial. However, my reasons for reaching this result differ from those of the Quebec Court of Appeal. With great respect, let me make myself clear.
[141] Section 495(3) Cr. C. creates a presumption of lawfulness applicable to the conduct of a peace officer who has made an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C. Section 495(3)(b) provides, however, for the possibility of rebutting this presumption in a proceeding not brought under the Criminal Code or any other Act of Parliament, where the person alleging the unlawfulness of the peace officer’s conduct establishes that the officer did not comply with the requirements of s. 495(2) Cr. C. The Court of Appeal’s error was in finding that the possibility of rebutting the presumption of lawfulness applied in a proceeding under the Criminal Code or another Act of Parliament contemplated by s. 495(3)(a), which distorted its entire interpretation.
[142] Thus, by stating that in this case s. 495(3) Cr. C. guaranteed the respondent “the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (C.A. reasons, at para. 18), the Court of Appeal erred, because in the context of determining the criminal liability of the respondent in this case — and not that of the peace officer — there was no presumption of lawfulness that applied.
[143] On this point, I agree with the analysis of the Alberta Court of Appeal in Veen to the effect that “sections 495(3)(a) and (b) were intended to operate differently and in different contexts, with subsection (a) applying to criminal matters and (b) applying to civil matters” (para. 59). It follows that the phrase “unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2)” in s. 495(3)(b) Cr. C., as the very structure of subs. (3) clearly indicates, applies only to para. (b), and its application cannot be extended to the entire subsection. There is no justification for reading into para. (a), as the Court of Appeal did, a phrase that is expressly confined to para. (b).
[144] In summary, since the criminal proceeding brought against the respondent — specifically a charge for sexual assault — does not fall within either of the paragraphs of s. 495(3), the Quebec Court of Appeal could not base its analysis on this provision. That being said, I am of the view that this error by the Court of Appeal is not determinative. In this case, it is rather the trial judge’s refusal to hold the voir dire requested by the respondent that constitutes a reviewable error.
[145] Section 495(2) Cr. C. is mandatory and binding. Failure to comply with it may make an arrest without warrant unlawful, even if the arrest meets the requirements of s. 495(1) Cr. C. An arrest that is unlawful may, by that very fact, be characterized as arbitrary within the meaning of s. 9 of the Charter and thus provide a basis for constitutional remedies under s. 24 of the Charter.
[146] This case does not involve any of the scenarios in which s. 495(3) applies, because the criminal or civil liability of the peace officer who arrested the respondent without warrant or of any person responsible for that officer is not in issue. The presumption of lawfulness created by s. 495(3) Cr. C. with respect to the conduct of the peace officer who made the arrest therefore does not apply, and the trial court had to hold a voir dire to determine the lawfulness of that arrest. The refusal to conduct that hearing is a reviewable error that warrants a new trial. . R. v. Fyke
In R. v. Fyke (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here from an acquittal for "assault causing bodily harm" against a police officer.
Here the court considers the law of warrantless arrest by a police officer:B. The legal framework
[17] Section 495(1)(a) of the Criminal Code authorizes police officers to make a warrantless arrest of a person who they believe on reasonable grounds has committed an indictable offence. As Cory J. explained in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51:[A]n arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. When one police officer directs another officer to make a warrantless arrest and/or conduct a warrantless search incidental to an arrest, the key question is whether the officer who ordered the arrest or search had the necessary reasonable grounds: see e.g., R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1166-67.
[18] Questions about the lawfulness of warrantless arrests arise most often in cases where the person who was arrested seeks a Charter remedy, arguing that their arrest was unlawful, and that it was thus arbitrary and violated the arrestee’s s. 9 Charter rights: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 54-56. It is ordinarily the arrestee’s burden to establish the unlawfulness of an arrest on a balance of probabilities, but the burden sometimes shifts to the Crown to establish on a balance of probabilities that an arrest was lawful: see R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75.
|
