E133| To arrest or not (2) arrest? That is the question.

In this episode, Mike discusses the Supreme Court of Canada decision R. v. Carignan, 2025 SCC 43 where a police officer arrested a man under s. 495 of the Criminal Code. At trial, in the Court of Quebec, the man wanted a voir dire held to determine the lawfulness of his arrest because — he claimed — the police did not comply with s. 495(2) and he sought the exclusion of an incriminating statement he made to police under s. 24(2) of the Charter. But the judge refused to hold a voir dire, concluding s. 495(3) rendered an arrest that did not comply with s. 495(2) lawful in a criminal proceeding, including one in which the arrestee was on trial. The man was convicted of sexual assault and he was sentenced to 15 months' imprisonment and placed on probation for a period of two years. He appealed to Quebec's highest court, which ruled the trial judge erred. In its view, s. 495(3) did not prevent an accused from challenging the legality of their arrest. By refusing to hold a voir dire, the judge deprived the man of the opportunity to allege and establish non-compliance with s. 495(2). The man's appeal was allowed and a new trial was ordered. The Crown then appealed the Quebec Court of Appeal's decision to Canada's top court, where all nine judges heard the matter and rendered an unanimous decision. Listen to learn what every law enforcement officer should know about the effect non compliance with s. 495(2) has on the lawfulness of an arrest made under s. 495(1) and its interplay with s. 495(3). 

Criminal Code power of arrest:

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.

Limitation

(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.

Consequences of arrest without warrant

(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).

Other provisions mentioned in the podcast: ss. 493, 49

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