Arrest Without a Warrant

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 169-208

169

Arrest Without

aWarrant

6

I. Introduction ............................................. 

II. The General Criminal Arrest Power (CriminalCode,

Section ) ............................................. 

A. Indictable Oences (Criminal Code, Section ()(a)) ..... 

B. Criminal Oences Generally (Criminal Code,

Section()(b)) .................................. 

C. Outstanding Warrants (Criminal Code,

Section ()(c)) ................................... 

D. Limits on Arrest Without a Warrant (Criminal Code,

Sections (), ()) ................................. 

III. Other Statutory Arrest Powers ............................... 

A. Breach of Release Orders (Criminal Code,

Sections ., ) ................................. 

B. Terrorist Activity (Criminal Code, Section .()) ......... 

C. Breach of the Peace (Criminal Code, Section ) .......... 

D. Assessment Orders (Criminal Code, Section .) ....... 

E. Regulatory Legislation ................................ 

F. Citizen’s Arrest (Criminal Code, Section ) ............. 

IV. Common Law Powers ..................................... 

V. Residential Arrest ......................................... 

A. Prior Lawful Entry ................................... 

B. Hot Pursuit ........................................ 

C. Statutory Exception (Criminal Code, Section .) ........ 

© 2025 Emond Montgomery Publications. All Rights Reserved.

170Detention, Arrest, and the Right to Counsel

I. Introduction

A variety of statutes, including the Criminal Code,1 provide peace ocers with the

power to arrest a person without a warrant in defined circumstances. Section 495 of

the Criminal Code is an example of a commonly used warrantless arrest power. When

seeking to invoke this power, or any other warrantless arrest power, a peace ocer

must ensure that the statutory preconditions have been met. An arrest entails a sig-

nificant intrusion on a person’s liberty interests. Unlike the case of arrest warrants,2

a peace ocer making a warrantless arrest is not required to first satisfy a judicial

ocer of the basis for the arrest. A peace ocer must appreciate how the law entrusts

them to balance an individual’s right to liberty with the need to protect society from

harm. The power for a peace ocer to arrest without a warrant “is a valuable protec-

tion to the community; but the power may easily be abused and become a danger to

the community instead of a protection.”3

It is a mistake to assume that an arrest is the sole method for the police to charge a

person and initiate a criminal or regulatory process.4 While ocers and the case law

will colloquially refer to “arresting” a person as synonymous with “charging” them,5

these acts are legally distinct. The police charge a person with a criminal oence

by laying an information before a justice (or for some provincial oences, by filing a

certificate of oence).6 The police do not need to arrest a person to charge them and

compel their attendance in court. Even when an arrest power is available, there will be

times when an arrest is inappropriate.7 When an ocer does not arrest a person but

nonetheless believes that the person has committed a criminal oence, the ocer can

compel the person’s appearance in court by issuing them an appearance notice under

section 497 of the Criminal Code.

The police must comply with section 29(2) when they arrest a person without

a warrant under the Criminal Code. This provision requires the police to notify the

person, where it is feasible to do so, of (1) the process or warrant under which the o-

cer is making the arrest, or (2) the reason for the arrest.8 This provision has become

1 RSC 1985, c C-46.

2 See Chapter 7 for more information on arrest warrants.

3 Dumbell v Roberts, [1944] 1 All ER 326 at 329 (CA).

4 The exception is for s 469 oences, such as murder, which require that the police arrest the

person.

5 See R v Tahmasebi, 2020 ONCA 47 at paras 7, 8.

6 R v Kalanj, [1989] 1 SCR 1594 at 1602-8, 1989 CanLII 63.

7 Section II.D, “Limits on Arrest Without a Warrant,” below, examines this issue further by

outlining some of the statutory limits on making an arrest.

8 Gamracy v R, [1974] SCR 640 at 643, 1973 CanLII 25.

© 2025 Emond Montgomery Publications. All Rights Reserved.

Chapter  Arrest Without aWarrant 171

redundant post–Canadian Charter of Rights and Freedoms9 in the context of a war-

rantless arrest as section 10(a) of the Charter already requires an ocer to promptly

inform every arrestee of the reasons for their arrest.

Courts have strictly maintained the limits on statutory arrest powers. An ocer

cannot assume that every oence, such as certain regulatory oences, will provide a

basis for the ocer to make a warrantless arrest. An ocer must ensure in advance

that the oence at issue is covered by the anticipated arrest power. If not, then the

arrest will be unlawful even if a dierent arrest power could have been used to initiate

the arrest.10 Relatedly, the power to make an arrest must be explicit in the statutory

provisions. The courts will not read an arrest power into legislation. In R vSharma,11

the Supreme Court of Canada examined regulatory legislation that provided ocers

with more moderate means, short of an arrest, for dealing with potential oenders.

The Court declined to recognize a common law arrest power merely because an o-

cer is duty bound to enforce the legislation.12 This issue was also relevant during the

Covid-19 pandemic. Certain legislation, such as Ontario’s Emergency Management and

Civil Protection Act,13 made it an oence for failing to comply with an emergency order

(s 7.0.11). However, the Act did not provide ocers with a general arrest power.

Even when a person is frustrating an ocer’s enforcement of regulatory legis-

lation, the ocer must exhaust the available regulatory enforcement tools before

resorting to a Criminal Code arrest power.14 The decision in R vYussuf 15 illustrates

this point. The driver’s refusal to identify himself under trac legislation could not

ground a warrantless arrest for the oence of obstructing an ocer in the execution

of their duties under section 129(a) of the Criminal Code. Instead, the ocer needed

to pursue the refusal to identify oence under the regulatory legislation and then use

the arrest power available under that legislation.16 This approach is sensible since it

requires an ocer to use the regulatory tools at their disposal and reserves the ham-

mer of the criminal authority if the person persists in their resistance. However, this

approach also inserts a caveat into the Criminal Code that is not there. Section 129(a)

of the Criminal Code does not say that a person who resists an ocer in the execution

9 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter].

10R v Hu, 1979 ABCA 234 at para 15.

11[1993] 1 SCR 650, 1993 CanLII 165.

12Ibid at 672, 673.

13RSO 1990, c E.9.

14 See R v Hayes, 2003 CanLII 3052 at para 42 (ONCA). The Ontario Court of Appeal was inter-

preting the earlier Supreme Court of Canada decision in Sharma, supra note 11.

152014 ONCJ 143.

16Ibid at paras 61-65.

© 2025 Emond Montgomery Publications. All Rights Reserved.