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Criminal - Warrantless Arrest (4). R. v. Hayatibahar
In R. v. Hayatibahar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions for "one count of criminal negligence causing death, one count of impaired driving causing death, and three counts each of criminal negligence causing bodily harm and impaired driving causing bodily harm".
Here the court considered the 'reasonable and probable grounds' [RPG] warrantless arrest standard:[56] We agree with the trial judge that the standard of reasonable grounds – and its statutory predecessor, “reasonable and probable” grounds – is one of credibly-based probability. This standard is not the equivalent of the civil standard of proof on a balance of probabilities. The use of the word “probable” has never been construed as requiring that the basis for arrest be more likely than not. To the contrary, the authorities overwhelmingly confirm that reasonable grounds or reasonable and probable grounds is something less than a prima facie case, and something less than the civil standard of proof.
[57] The Canadian standard of “reasonable grounds to believe” is identical to the American standard of “probable cause”: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 167-68; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 128, per Deschamps J. (dissenting, but not on this point); R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 759, leave to appeal refused, [1997] S.C.C.A. No. 571. As noted by the trial judge: “the American jurisprudence has specifically and repeatedly held that ‘probable cause’ does not require a belief that is ‘more likely true than false’”: see Texas v. Brown, 460 U.S. 730 (1983), at p. 742; see also Illinois v. Gates, 462 U.S. 213 (1983), at p. 231; Florida v. Harris, 568 U.S. 237 (2013), at pp. 243-44; and Maryland v. Pringle, 540 U.S. 366 (2003), at pp. 370-71.
[58] Canadian courts have similarly affirmed that the standard of reasonable grounds is one of credibly-based probability; that it is not the equivalent of a prima facie case, balance of probabilities, or any other numerical formula: see e.g., R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at paras. 57-59. Canadian courts have long recognized that the reasonable grounds standard is a “practical, non-technical” standard based on “factual and practical considerations of everyday life on which reasonable and prudent men act”: R. v. T.G., 2026 ONCA 298, at para. 66, per Pomerance J.A. (dissenting, but not on this point); and Gates, citing Brinegar v. United States, 338 U. S. 160 (1949), at pp. 230-31. The standard defies “precise definition or quantification into percentages” and is neither “a scientific [nor] metaphysical exercise”: T.G., at para. 66, per Pomerance J.A. (dissenting, but not on this point); Pringle, citing Gates, at p. 232; Brinegar, at p. 175; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73; and R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 72.
[59] In evaluating the lawfulness of arrest, the overarching question is whether the officer’s belief that the arrestee has committed an indictable offence is reasonably probable based on credible information or observations. Because the standard does not command 51 percent probability, it is conceivable that more than one proposition might be reasonably probable. We see this, for example, in the search warrant context, where simultaneous warrants can be issued for multiple locations. Police might reasonably believe that a suspect is in possession of contraband but may not know precisely where it is kept. Police might reasonably believe that it will be found in his home, his car, or his office. The law permits warrants to issue for all three locations simultaneously, even though no one of the three is more likely than the others to house the contraband: see R. v. St. Clair, 2020 ONSC 2251, at para. 57, aff’d on other grounds, 2023 ONCA 266, 425 C.C.C. (3d) 137.
[60] There is no reason to interpret the standard of reasonable grounds any differently when dealing with the lawfulness of arrest. Police need not know with certainty that a crime has been committed and need not know with certainty who has committed the crime. The belief that justifies the arrest – that a particular person committed a particular crime – must be reasonable and probable but need not be more probable than not. What constitutes reasonable grounds will depend on the context at issue, the nature of the criminal allegations, and the observations made by the police, viewed through the lens of common sense and experience: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; and Beaver, at para. 72.
[61] The standard of reasonable grounds seeks to achieve a balance between the liberty interests of individuals and the societal interest in effective law enforcement. The standard must be construed in a manner that protects individual rights. The right of citizens to move freely is a central precept of a free and democratic society. At the same time, the standard must reflect the practical exigencies of police investigations. It must not be so exacting as to impede the effective detection and investigation of crime. To inject the civil standard of proof at this stage of the process would be to frustrate legitimate law enforcement objectives.
[62] This point is amply illustrated by the facts of this case. It is perhaps unusual for police to encounter a situation in which it is equally probable that one of two individuals has committed a crime. Yet, it would be highly anomalous if two individuals, knowing that one of them had committed a crime, could prevent a lawful arrest simply by pointing the finger at one another. So, too, is it difficult to imagine that the police were required to let the appellant and Mr. Riazi be on their way, merely because each implicated the other in the commission of the offence.
[63] The police were faced with the investigation of a serious crime, resulting in one fatality, and injuries to three others. As was observed by the trial judge: “there is no issue that the driver, whether it was Mr. Hayatibahar or Mr. Riazi, was arrestable for impaired driving causing death/bodily harm and/or dangerous driving causing death/bodily harm.” The police were aware that the collection of certain evidence, such as blood-alcohol concentration, was potentially time sensitive. It was more than reasonably probable that one of the men was the driver at the time of the incident. In these circumstances, a failure to arrest would have been an abdication of the duty on police to protect the public and properly investigate crime.
[64] For all of these reasons, we are of the view that the trial judge was correct in finding that the arrest of the appellant was lawful and did not violate s. 9 of the Charter. The appellant acknowledged during oral argument that, were the arrest lawful, there would be little basis on which to challenge the search incident to arrest. We do not see any error with respect to the trial judge’s conclusion that the search of the appellant’s pockets two hours after arrest was reasonable: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 24. As a result, we dismiss the ground of appeal alleging a violation of the appellant’s rights under s. 8 of the Charter. . 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".
The court considers aspects of the CCC 495(3) ['Consequences of arrest without warrant'] warrantless arrest regime (ie. where warrantless arrest deemed lawful) - here at text, context and purpose stages of a statutory interpretation assessment [at paras 85-139]:(4) Conclusion on the Interpretation of Section 495(3) Cr. C.
[136] In conclusion, s. 495(3) Cr. C. is intended to govern the liability of peace officers for failure to comply with the requirements of s. 495(2) Cr. C. Since peace officers are called upon to exercise their judgment quickly to make an arrest without warrant in circumstances that are often unpredictable, it was necessary for Parliament to establish some protection in relation to the then new limitation on their discretion introduced by s. 495(2) Cr. C.
[137] From this perspective, s. 495(3)(a) Cr. C. provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) Cr. C., it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) Cr. C. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) Cr. C. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof.
[138] I would add that such an interpretation is consistent with the Criminal Code’s special nature, which requires that it be read having regard “to liberty interests” (R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 39). Along the same lines, I noted in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, that “[i]n a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law” (para. 6). Of course, this taking into account of individual freedoms must not compromise other fundamental criminal law considerations, which must be carefully balanced with these freedoms — including public safety and the public interest in ensuring that peace officers can do their work effectively and expeditiously (see CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at para. 20).
[139] That being the case, as we have seen, Parliament’s intention in enacting s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) was precisely to balance these various considerations. I therefore propose to give full effect to the balancing done by our elected representatives. In this context, preference should be given to the interpretation that best reflects this desired balance, without overstepping it. . 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".
The court considers aspects of the CCC 495(2) ['Limitation'] warrantless arrest regime (ie. circumstances where warrantless arrest is prohibited) - here at text, context and purpose stages of a statutory interpretation assessment:[59] In general terms, s. 495(2) Cr. C. provides that a peace officer shall not arrest a person without warrant in certain circumstances, but only for a restricted number of offences. The scope of s. 495(2) Cr. C. is therefore limited — the provision applies only to hybrid offences and offences punishable on summary conviction, as well as to the indictable offences mentioned in s. 553 Cr. C. The offences referred to in s. 553 Cr. C. are indictable offences within the exclusive jurisdiction of a provincial court judge (e.g., theft (other than theft of cattle), betting, breach of a recognizance or failure to comply with a probation order). By operation of s. 34 of the Interpretation Act, R.S.C. 1985, c. I‑21, s. 495(2)(b) and s. 495(2)(c) Cr. C. also apply to offences created by legislation other than the Criminal Code, including the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or other Acts of Parliament.
[60] Section 495(2) prevents a peace officer from making an arrest without warrant where two requirements are met. First, the peace officer must believe on reasonable grounds that the public interest may be satisfied without making an arrest without warrant (s. 495(2)(d)). Second, the peace officer must have no reasonable grounds to believe that, if he or she does not arrest the person without warrant, the person will fail to attend court (s. 495(2)(e)).
[61] I note, as the parties do, that s. 495(2) Cr. C. applies only when the two requirements set out in s. 495(2)(d) and (e) Cr. C. are met. The use of the word “and” at the end of the English version of s. 495(2)(d) Cr. C., and of the expressions “d’une part” and “d’autre part” in the French version of s. 495(2)(d) and (e), clearly supports such a cumulative reading. A peace officer cannot make an arrest without warrant if the requirements of s. 495(2) Cr. C. are met. However, if one of the requirements is not met, the officer can arrest a person without warrant. To conclude otherwise would in fact have the absurd consequence of preventing a peace officer from making an arrest without warrant, thereby running the risk, for example, of allowing evidence to be destroyed right before his or her eyes, even if the officer does not consider the person to be a flight risk. Parliament cannot have intended such a result.
[62] It follows that, in a scenario where one of the conditions in s. 495(2) Cr. C. was not met, a peace officer could make an arrest without warrant under s. 495(1) Cr. C. Thus, the peace officer would be authorized to make such an arrest if he or she believed on reasonable grounds that it was necessary to do so, either to satisfy the public interest or to ensure the person’s appearance in court. Conversely, the peace officer could not make such an arrest if it was not necessary to do so in order to satisfy the public interest or to ensure the person’s attendance in court.
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(2) Context
[67] The context of s. 495(2) Cr. C. also supports this interpretation. For a clear understanding of the scope of this provision, it is important to look first at the relationship between s. 495(1) and s. 495(2) Cr. C. and then at the relationship between s. 495(2) and s. 495(3) Cr. C.
(a) Relationship Between Section 495(1) and Section 495(2) Cr. C.
[68] In legislative drafting, it is common practice to begin by formulating a general rule and then to clarify or narrow the rule by means of more specific provisions. In such cases, the general rule and the specific rules must be read together: the specific rules qualify the general rule stated first and reveal its true scope in a particular situation (Côté and Devinat, at paras. 1074 et seq.).
[69] This is precisely the logic underlying the relationship between s. 495(1) and s. 495(2) Cr. C. Section 495(2) Cr. C. does not create a freestanding power of arrest without warrant. This power has its normative source exclusively in s. 495(1) Cr. C. As many have already pointed out, s. 495(1) Cr. C. remains the foundation and cornerstone of the power of arrest without warrant (Jowett Work, at para. 34; Veen (C.A.), at para. 34; J. A. Scollin, The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (1972), at p. 4). Section 495(2) Cr. C. must therefore be understood as a provision that serves to limit the scope of the general power of arrest provided for in s. 495(1) Cr. C. when certain requirements are met.
[70] It is thus incorrect to say that s. 495(2) Cr. C. permits the exercise of such a power regardless of the conditions set out in s. 495(1) Cr. C. Section 495(2) Cr. C. cannot come into play unless a peace officer first believes on reasonable grounds that an indictable offence has been or is about to be committed, the officer finds a person committing a criminal offence or the officer has reasonable grounds to believe that there is a warrant for the person’s arrest or committal, in accordance with s. 495(1) Cr. C. (Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at para. 91). It logically follows that the determination of whether s. 495(2) Cr. C. applies must always begin with the question of the application of s. 495(1) Cr. C.: if the latter does not apply or is not complied with, consideration of s. 495(2) Cr. C. becomes moot.
[71] In summary, s. 495(1) Cr. C. differs from s. 495(2) in that it provides that a peace officer “may arrest without warrant . . . a person” (“peut arrêter sans mandat . . . une personne”), whereas s. 495(2) Cr. C. instead says “shall not arrest a person without warrant” (“ne peut arrêter une personne sans mandat”). Section 495(1) Cr. C. is therefore permissive, because it makes a grant of powers, rights, authorizations or permissions (Interpretation Act, s. 11, the French version of which refers to “[l]’octroi de pouvoirs, de droits, d’autorisations ou de facultés”) and thus connotes the existence of “an area of discretion” (Smith & Rhuland Ltd. v. The Queen, 1953 CanLII 234 (SCC), [1953] 2 S.C.R. 95, at p. 97). The contrast between “may” (“peut”) and “shall not” (“ne peut”) in s. 495 Cr. C. reinforces the idea that Parliament’s intention was to confer a certain degree of discretion on peace officers in s. 495(1) Cr. C. but to impose an obligation or duty on them in s. 495(2) Cr. C. (see, e.g., Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403, at para. 108, per La Forest J., dissenting, but not on this point).
[72] I also observe that the marginal note to s. 495(2) Cr. C. is titled “Limitation” (“Restriction”). While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it does serve as an additional indication that s. 495(2) Cr. C. should be interpreted as imposing binding limitations on the powers set out in s. 495(1) Cr. C.
(b) Relationship Between Section 495(2) and Section 495(3) Cr. C.
[73] Continuing with my analysis of the context of the provision, I will look at the relationship between s. 495(2) Cr. C. and s. 495(3) Cr. C. I note that the very existence of s. 495(3) Cr. C. is a contextual element of no small importance in confirming the binding and mandatory nature of s. 495(2) Cr. C. Indeed, if s. 495(2) Cr. C. had no normative import, there would have been no need to create a form of presumption of lawfulness “[n]otwithstanding subsection (2)” (“[n]onobstant le paragraphe (2)”) in s. 495(3) Cr. C. Section 495(3) Cr. C. therefore also suggests that s. 495(2) Cr. C. imposes a real obligation, since subs. (3) contains protective mechanisms in the event of non‑compliance with subs. (2).
(c) Conclusion on the Context of Section 495(2) Cr. C.
[74] In summary, an analysis of the context of s. 495(1), (2) and (3) Cr. C. reveals a coherent legislative structure in which each provision plays a complementary role. Section 495(1) Cr. C. creates a power of arrest without warrant, while s. 495(2) Cr. C. strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) Cr. C. confirms the normative character of s. 495(2) Cr. C. by setting out protective mechanisms in the event of non‑compliance.
(3) Purpose of Section 495(2) Cr. C.
[75] Interpreting s. 495(2) Cr. C. as limiting a peace officer’s power of arrest is also consistent with the purpose of this provision.
[76] Indeed, as I mentioned above, s. 495(2) Cr. C. was enacted as part of a bill aimed at reducing “unnecessary pre‑trial arrest and detention” by limiting “discretionary injustice” (House of Commons Debates, February 5, 1971, at p. 3116; see also pp. 3114 and 3118). To achieve this objective, Parliament wanted “new duties . . . placed on the police to direct their minds to what the public interest requires”, but also wanted peace officers to be given the “flexibility or the . . . guidelines that would help [them] in judging whether or not an arrest should be made” (pp. 3114 and 3116‑17 (Hon. J. Turner)).
[77] The appellant interprets this passage from the parliamentary debates as indicating that Parliament’s objective was to increase the discretion of peace officers to make arrests without warrant (A.F., at para. 44). I respectfully disagree.
[78] Even though Parliament, as part of its legislative reform, equipped peace officers with new tools to avoid resorting to arrest — such as the possibility of issuing an appearance notice — its intention and the legislative objective were not to leave their discretion intact, but rather to limit it. In keeping with the stated objective of reducing unnecessary arrests without warrant, Minister Turner explained that the legislation was meant to “alter the unfettered discretion of the police to arrest” that had existed until then under the Criminal Code, so as to limit it 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” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14). Thus, Minister Turner emphasized that the bill “convert[ed] the discretion into a duty not to arrest” when certain requirements were met (p. 9 (emphasis added)).
[79] In my opinion, Parliament intended that a peace officer’s exercise of the power of arrest without warrant be strictly regulated through the mandatory requirements of s. 495(2) Cr. C. in order to promote the public interest and ensure the person’s appearance in court. The purpose of s. 495(2) Cr. C. is therefore clear: it is to limit the discretion of police officers by identifying the situations in which an arrest without warrant is not required in order to reduce what are considered to be unnecessary arrests. Interpreting s. 495(2) Cr. C. as simply setting out guidelines would therefore be contrary to what Parliament intended, since it would not effectively assist in reducing unnecessary arrests without warrant.
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(5) Conclusion on the Interpretation of Section 495(2) Cr. C.
[82] I therefore find that an analysis of the text, context and purpose of s. 495(2) Cr. C. leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) Cr. C. are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) Cr. C. where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.
[83] It follows from the above that an arrest contrary to s. 495(2) Cr. C. is unlawful because it is contrary to this law, which suffices to characterize said arrest as arbitrary within the meaning of s. 9 of the Charter. Indeed, since the enactment of the Charter in 1982, this Court has had occasion to state that an unlawful arrest or detention, including one not authorized by law, is necessarily an arbitrary arrest or detention and infringes s. 9 of the Charter (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 21‑22; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124).
[84] Since I am of the view that an arrest contrary to the law established by s. 495(2) Cr. C. results in this arrest made in violation of binding norms being unlawful, this is sufficient to characterize such an arrest as arbitrary within the meaning of s. 9 of the Charter. The question that now remains is whether the effect of s. 495(3) Cr. C. is to shield such an arrest from being found unlawful and thus arbitrary under s. 9 of the Charter, such that it would be manifestly frivolous to conduct a voir dire to determine, in a criminal proceeding (such as the trial of the respondent in this case), the lawfulness of a police arrest — as the trial judge held.
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