C. Arrest Without a Warrant

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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Warrantless arrests are governed by sections 494 and 495 of the Criminal Code, which create a number of arrest powers available to three groups. Section 494(1) creates arrest powers available to anyone, section 494(2) creates a special arrest power relating to property owners, and section 495(1) creates arrest powers available only to peace officers. Section 494 is sometimes spoken of as providing power for a "citizen’s arrest," although it can in fact be used by anyone, peace officers included. Historically, it is section 494 that descends more directly from the common law powers of arrest, while section 495 creates additional powers for peace officers, an office which did not exist when powers of arrest first developed.30The different powers of arrest are defined largely by two variables: indictable offences vs. criminal offences, and "finds committing" powers vs. "reasonable belief" powers. In each case the former option is more limited than the latter.

Some arrest powers are limited to indictable offences (that is, ones that can be prosecuted by indictment, which in this context includes hybrid offences).31Other arrest powers apply to criminal offences in general, and therefore include summary conviction offences as well. Indeed, many provinces have incorporated the Criminal Code arrest powers into their provincial offence acts, so as a practical matter some Code arrest powers apply to non-Code offences.32The "finds committing" standard requires that the person arresting have actually witnessed the commission of the offence. The requirement is read to mean "apparently" finds committing, in the sense that a subsequent acquittal of the accused on the charge for which she was arrested does not retroactively invalidate the arrest power. Thus in R.

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v. Biron, for example, the accused was properly arrested for causing a disturbance since an officer witnessed the behaviour constituting the disturbance. The fact that Biron was eventually acquitted of that charge (because there was no proof at trial of the specific allegation of shouting) did not mean that he was illegally arrested, and so he was still guilty of resisting a peace officer in the execution of duty.33Biron is a pre-Charter case and so it may now be possible to argue that an arrest made when the accused is ultimately found not to have committed an offence violates the right, in section 9, to be free from arbitrary detention. "Reasonable grounds to believe" that an accused has committed an offence requires that the person performing the arrest subjectively believes that the person has committed the offence, and that the belief is objectively justifiable. That is, a reasonable person standing in the shoes of the arresting officer would have also believed that grounds for arrest existed. The objective standard for a warrantless arrest, therefore, is the same as that required for obtaining an arrest warrant.34Whether the standard is met in an individual case is not always easy to determine and depends on the particular facts. More than mere suspicion is necessary, but the police are not required to have a prima facie case before arresting. Accordingly, although police cannot arrest simply in order to investigate and obtain reasonable grounds, the fact that an investigation continues after an arrest does not automatically mean that the arrest was not based on reasonable grounds.35The "reasonable grounds" standard requires that a reasonable person would see it as more likely than not that the accused committed the offence (i.e., that it is probable the accused is guilty). Some lower courts have taken the view that the standard could be met without reaching the level of "probability," but that view is based on a misapplication of precedent from a different context.36The Supreme Court has recently commented on a Court of Appeal judgment that "mistakenly held that the requirement of ‘reasonable grounds’ in s. 495(1)(a) is different from the requirement of ‘reasonable and probable grounds,’"37and so one hopes the point might now have been sufficiently clarified.

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Both the subjective and objective tests must be met. It is easy to see that an objectively unreasonable arrest should not be allowed simply because of the officer’s personal belief. Equally, though, even if reasonable grounds for arrest exist on an objective basis, the arrest is improper if the officer does not have the necessary subjective belief. The issue is not simply whether grounds to arrest exist, but whether the officer acts upon such grounds.38

1) Section 494 Arrest Powers

The arrest powers in section 494(1) are given to anyone, and are the most limited powers. Anyone may arrest a person whom he finds committing an indictable offence. Alternatively, anyone may perform an arrest when she believes, on reasonable grounds, that some person has committed a criminal offence and is escaping and being freshly pursued by some other person with authority to arrest.

Section 494(2) creates a slightly broader arrest power for property owners and their designates. Anyone who owns or is in lawful possession of property can arrest not only for indictable offences, but also for any criminal offence they find being committed on or in relation to their property. "Property" is defined in section 2 of the Code to include real or personal property.

Anyone other than a peace officer who makes an arrest is required to deliver the arrested person "forthwith," that is, as soon as reasonably possible or practicable under all the circumstances.39

2) Section 495 Arrest Powers

Peace officers’ arrest powers are much broader. Sections 495(1)(a) and (b) effectively allow a peace officer to arrest in any situation but two: i) where the officer did not find the accused committing the offence, the offence is only a summary conviction one, and no arrest warrant has been issued, or ii) where the officer believes that a summary conviction offence is about to be committed.

Section 495(1(a) permits a peace officer to arrest anyone who "has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence."

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Section 495(1)(b) permits a peace officer to arrest anyone he finds committing a criminal offence. Finally, section 495(1)(c) permits a peace officer to arrest a person if he reasonably believes that a warrant exists for the person’s arrest.

Read in one fashion, the first clause of section 495(1)(a) would make the second clause redundant. If a peace officer could arrest anyone who has in fact committed an indictable offence, it would be unnecessary also to have a power to make such an arrest on reasonable grounds. In practice, the section has not been interpreted in such a broad way. Section 495(1)(a) is taken to require that the officer has personally witnessed the offence, believes on reasonable grounds that the offence has been committed, or believes on reasonable grounds that the offence is about to be committed.40The arrest power in section 495(1)(b) authorizes an arrest at any time where the officer witnesses the actual commission of the offence...

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