Court rules that limits imposed on arrests made without warrant are mandatory in nature
An accused person can challenge the lawfulness of a warrantless arrest, the Supreme Court of Canada ruled Friday, if the arrest does not comply with the limits set out in the Criminal Code.
Writing for a unanimous court in the case of R v. Carignan, Justice Suzanne Côté found that the text, context and purpose of s. 495(2) of the Criminal Code show that the limits imposed on the power of arrest without warrant are mandatory in nature. Canada’s highest court, therefore, dismissed the prosecution’s appeal and upheld a Quebec Court of Appeal order for a new trial.
This is the first time the SCC has interpreted the scope of and the relationship between ss. 495(2) and 495(3) of the Criminal Code. Section 495 governs police powers to arrest without a warrant, and subsections (2) and (3) of this section, which outline the conditions for warrantless arrests, have long been a source of concern due to the ambiguity of the statutory language.
However, Justice Côté wrote that 495(2) of the code “is mandatory in nature and allows an accused to raise, under Section 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, Section 495(3), . . .. properly interpreted, cannot serve in this case to immunize an arrest contrary to 495(2), since the proceeding does not relate to the criminal liability of a peace officer or of persons responsible for that officer.”
Justice Côté noted 495(1)(a) of the code 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, writing:
“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. . . . Thus, peace officers contravene 495(2) 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.”
Justice Côté also noted that this appeal involves statutory interpretation, not a constitutional challenge to s. 495, and the court does not have to rule on the merits of the motion filed by the respondent. “Rather, the court is called upon to determine whether it was appropriate for the trial judge to summarily deny the respondent’s request that a voir dire be held to decide the lawfulness of his arrest without warrant.”
The case dates back to March 20th, 2018, when the accused was arrested without a warrant for sexual assault in relation to events that occurred ten days earlier. He was brought to the police station and questioned. He declined to consult counsel and, in a videotaped interview, made an incriminating statement.
However, before the trial began, the accused filed a motion to exclude the statement because his arrest was illegal and therefore a violation of s. 9 of the Charter. He claimed that the police had no reasonable grounds to believe that his arrest was necessary to protect the public interest, as per s. 495(2). The trial judge refused to hold a voir dire on the legality of the warrantless arrest and summarily dismissed the motion based on the 495(3) deemed lawfulness clause. As a result, the incriminating statement was admitted into evidence, and the accused was convicted.
On appeal, the Quebec Court of Appeal disagreed with the trial judge and found that the accused had to be able to challenge the lawfulness of his arrest without a warrant because it did not comply with the limits imposed by s. 495(2). The court decided that a voir dire should have been held on this question, and it ordered a new trial. The Crown appealed to the Supreme Court of Canada.
In the Supreme Court decision, Justice Côté noted that at the time the first iteration of what is now s. 495(3) was enacted, “Parliament could not have imagined that, years later, accused persons would be able, in their own criminal trial, to challenge infringements of their constitutional rights — such as the right not to be arbitrarily detained — by asserting the unlawfulness of their arrest and seeking the exclusion of the evidence obtained in violation of those rights.”
She continued: “The Charter had not yet been enacted and, even more to the point, this Court had obviously not recognized that an unlawful arrest could amount to an arbitrary arrest. Nor could Parliament have anticipated that, where a Charter infringement was established, accused persons would be able to seek other “appropriate and just” remedies under 24(1) of the Charter in their criminal trial, such as a sentence reduction or a stay of proceedings.
As a result, “it is accordingly very difficult, if not impossible, to ascribe to Parliament any intention . . . of insulating an arrest contrary to 495(2) from scrutiny based on the unlawfulness of the arrest at the time it enacted the provisions in question. I therefore agree with the respondent that the wording of [what is now] s. 495(3) must be interpreted in light of this reality.”
Ronald Prégent of Battista Turcot Israel s.e.n.c. provided the following comment on the case in an email:
"The decision concerns the powers of police officers to make arrests without a warrant. Since 1972, section 495 of the Criminal Code, which grants and governs this power, provides in subsection (2) that in the case of hybrid offences, which constitute the vast majority of criminal offences, police officers may not arrest a person without a warrant when they consider that the public interest or the need to ensure the suspect's presence in court does not require it.
"Until today's decision, the case law held that subsection (3) of section 495 meant that even if police officers disregarded this condition set out in subsection (2), the arrest was not unlawful and, consequently, the accused could not claim to have been the subject of arbitrary arrest within the meaning of the Canadian Charter of Rights and Freedoms and seek redress (for example, in this case, request that their subsequent statement to the police be excluded from evidence)."
Editor's Note: Prégent's comments were added at 5:17 pm EST on December 12.
