Warrantless Arrests (Until December 18, 2019)

From Criminal Law Notebook
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See also: Compelling the Accused to Attend Court, Release by Police, and Arrest Procedure

Peace officers are granted authority to perform warrantless arrests where it is authorized by law. The primary source of authority is found in section 495 of the Criminal Code.

The validity of any arrest must be determined by reference to what was known to the police officer at the time. A subsequent failure to convict for the offence for which the accused was arrested has no bearing on the analysis.[1]

However, an officer cannot be excused for arresting a person for a law that was previously repealed.[2]

  1. R v Biron, 1975 CanLII 13 (SCC), [1976] 2 SCR 56, per Martland J (5:3)
  2. R v Houle, 1985 ABCA 275 (CanLII), 24 CCC (3d) 57, per Stevenson JA (3:0)

Power to Arrest

Where there is no warrant for a person's arrest, a peace officer is governed by section 495:

Arrest without warrant by peace officer

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 [Miscellaneous, s. 841 to 849] in relation thereto, is in force within the territorial jurisdiction in which the person is found.

[omitted (2)]

Consequences of arrest without warrant

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) [warrantless arrest power] 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).

R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.


Note up: 495(1) and (3)

A police officer can arrest where:

  1. there is reasonable grounds a person has committed an indictable offence;
  2. there is reasonable grounds a person is about to commit an indictable offence;
  3. a person is committing an indictable offence; or
  4. a person has a warrant out for his/her arrest.

There is limited power to arrest where the accused is found committing a summary offence and it is necessary to establish the accused's identity, among other things.[1]

There is also a common law power for peace officers to arrest without a warrant where the officer has an honest and reasonable belief that there is a breach of the peace.[2]

Section 495 (1)(b) does not require the officer to "rule out potential innocent explanations" to his observations.[3] The formation of reasonable grounds does not require a prima facie case.[4]

  1. Moore v The Queen, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, per Spence J
  2. Hayes v Thompson, 1985 CanLII 151 (BC CA), [1979] 1 SCR 195, per Hutcheon JA
    Brown v Durham (Regional Municipality) Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274, per Doherty JA
    R v Collins, 2012 CanLII 26587 (NL PC), per Orr J
  3. R v MacCannell, 2014 BCCA 254 (CanLII), 314 CCC (3d) 514, per Garson JA, at para 46
  4. MacCannell, ibid.

Duty Not to Arrest on Public Interest Grounds

[omitted (1)]


(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553 [absolute jurisdiction offences],
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction [i.e. hybrid offences], or
(c) an offence punishable on summary conviction [see list of summary offences],

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.

[omitted (3)]
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
[annotation(s) added]


Note up: 495(2)

Related to this duty, s. 497 imposes a duty to release an arrested person which applies the same consideration.

The failure to properly consider factors in favour of release may be grounds to find arbitrary detention.[1]

  1. see R v Baker, 1988 CanLII 9639 (NS CA), 88 NSR (2d) 250, per Jones JA
    R v Cayer (1988), OJ No. 1120 (ONCA)(*no CanLII links)

Right Against Unlawful Arrest

See also: Investigative Detention#Right Against Arbitrary Detention

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.



The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference"[1] Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"[2]


The burden is upon the applicant to prove that the accused was "detained" within the meaning of s. 9 which must be proven on a balance of probabilities.[3]

The burden then moves onto the Crown to establish that a warrantless arrest was legal and not in violation of s. 9 of the Charter.[4]


An accused arrested on grounds that included evidence obtained through the breach of a third party's Charter rights does not have standing to challenge the third party's rights.[5] The only remedy in such a situation would be in an abuse of process application.[6]

  1. R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ, at para 20
  2. Grant, ibid., at para 55
  3. R v Bush, 2010 ONCA 554 (CanLII), 259 CCC (3d) 127, per Durno J, at para 74
    R v B(L), 2007 ONCA 596 (CanLII), 227 CCC (3d) 70, per Moldaver JA, at para 60
  4. R v Murphy, 2018 NSSC 191 (CanLII), per Rosinski J, at para 4
  5. R v Todd, 2015 BCSC 680 (CanLII), 121 WCB (2d) 113, per Rogers J
    R v Tran, 2016 BCPC 159 (CanLII), per Lamperson J, at paras 46 to 49
    cf. R v Brown, 2014 BCSC 1665 (CanLII), per Funt J
  6. Tran, ibid., at para 46

Reasonable and Probable Grounds

See also: Reasonable and Probable Grounds

An arresting officer must have reasonable and probable grounds to make the arrest. Those grounds must be subjectively held by the officer and must be reasonable.[1] Thus, the analysis considers both an objective and subjective component.[2]

An arresting officer is not required the same scrutiny as a justice of a peace would need to be in considering a search warrant.[3]

Objective Requirement

The objective component asks whether the "existence of objectively reasonable grounds for arrest requires that a Court consider whether a reasonable person would find reasonable and probable ground for arrest". This reasonable person must be "in the shoes" of the officer, taking into account "training and experience".[4]

The analysis is "approached as a whole" looking at the "cumulative effect" of all the evidence known at the time.[5]

Timing When Grounds are Formed

Police cannot arrest first and then determine after the fact whether the accused had a connection with their investigation.[6]

The reasonableness of an officers actions is based on what was known to them prior to acting, regardless of its accuracy and completeness. The court may take into account the nature of the power being exercised in its context. The dynamics of an arrest will vary in different circumstances and will sometimes need to be decided upon quickly.[7]


The officer may base his belief upon assumptions or secondary sources. However, the belief cannot be only a hunch. The circumstances must be sufficient to convince a reasonably fair-minded person put in the same position as the officer that the grounds for his or her belief are reasonable. The facts must not be considered piecemeal but in a holistic manner.[8]

Foundation of Belief

A conclusory statement from one officer to another, such as “a drug transaction has taken place ”, will not support an objective finding of reasonable and probable grounds for an arrest.[9]

Sharing of Reasonable Belief Between Officers

The arresting officer can safely assume grounds exist where he is directed by another officer to arrest the accused.[10] It is the officer who has formed the grounds who decides on whether to arrest a person. They do not need to be the one performing the arrest and the arresting officer may rely on the assessment of that officer.[11]

Multiplicity of Beliefs

A police office can have more than one believe and objective in doing a search incident to arrest as long as it is objectively justifiable.[12]

Sufficiency of Investigation

An arrest may be invalid where the investigator failed to gather sufficient information to form grounds by abbreviating their investigation.[13]

The police observation of two men exchanging an unknown object, without anything more, does not meet the standard of reasonable suspicion to detain or reasonable and probable grounds to arrest.[14]

A mistaken belief that there is a warrant out for arrest does not obligate the police to look into every claim by detainee that there is no warrant, however, the police may not disregard the claim without reason to believe it may be an unreliable claim.[15]

Timing at Which Grounds are Formed

Objective reasonableness is determined on the "factual matrix that existed at the time the arrest was made". Other information not known to the arresting officer is not relevant.[16]

  1. R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, per Cory J, at pp. 250-1
  2. Storrey, ibid.
    R v Grotheim, 2001 SKCA 116 (CanLII), 161 CCC (3d) 49, per Cameron JA
    R v McClelland, 1995 ABCA 199 (CanLII), 165 AR 332 (CA), per McFadyen JA (2:1), at para 21
    R v Juan, 2007 BCCA 351 (CanLII), 222 CCC (3d) 289, per Thackray JA, at para 27
    R v Phung, 2013 ABCA 63 (CanLII), 542 AR 392, per curiam
  3. see R v Polashek, 1999 CanLII 3714 (ON CA), 45 OR (3d) 434, per Rosenberg JA Golub, supra, at p. 750
  4. Phung, supra, at para 10
  5. R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J, at para 48
  6. see R v Whitaker, 2008 BCCA 174 (CanLII), 254 BCAC 234, per Frankel JA
    R v Chaif-Gust, 2011 BCCA 528 (CanLII), 280 CCC (3d) 548, per Finch CJ
  7. R v Golub, 1997 CanLII 6316 (ON CA), 34 OR (3d) 743, 117 CCC (3d) 193, per Doherty JA, at p. 750
  8. R v Chin, 2003 ABPC 118 (CanLII), 3 WWR 540, per Allen J, at para 60
  9. R v Lal, 1998 CanLII 4393 (BCCA), 130 CCC (3d) 413, per Ryan JA
  10. R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J, at paras 21, 22
  11. R v Shokar, 2006 BCSC 770 (CanLII), BCJ No 1163, per Joyce J, at para 21
    R v Hall, 2006 SKCA 19 (CanLII), 206 CCC (3d) 416, per Gerwing JA
  12. R v Chubak, 2009 ABCA 8 (CanLII), 243 CCC (3d) 202, per Ritter JA, at para 18
    R v Galye, 2015 BCSC 1950 (CanLII), per Kent J, at para 38(an "arresting officer's subjective belief that he or she has the requisite reasonable grounds is insufficient by itself for an arrest under s. 495(1)(a) of the Code to be lawful. Those grounds must also be justifiable from an objective point of view")
  13. e.g. R v Munoz, 2006 CanLII 3269 (ON SC), 86 OR (3d) 134, 205 CCC (3d) 70, per Ducharme J
  14. R v NO, 2009 ABCA 75 (CanLII), 186 CRR (2d) 60, per curiam
    R v Rahmani-Shirazi, 2008 ABQB 145 (CanLII), 451 AR 145, per Sullivan J
  15. R v Gerson-Foster, 2019 ONCA 405 (CanLII), per Paciocco JA
  16. Galye, supra, at para 38 ("Determining whether the arresting officer's grounds were objectively reasonable involves an assessment of the factual matrix that existed at the time the arrest was made. Whether other information, had it been available, might have strengthened or weakened those grounds is not a relevant consideration")

"About to Commit"

Under s. 495(1)(a) a peace officer may make a warrantless arrest of a person who is "about to commit" a hybrid or indictable offence.

An inebriated person about to operate a motor vehicle will be "about to commit" an offence of impaired driving.[1]

  1. see R v Beaudette, 1957 CanLII 502 (ON CA), 118 CCC 295, per Schroeder JA

"Finds Committing"

Under s. 495(1)(b) empowers a peace officer to make a warrantless arrest where a person is "apparently" committing an offence. This must be an honestly held belief and must be reasonable. The officer does not have to be so certain as equate with a conviction.[1]

The requirements of "finds committing" consist of:[2]

  1. the officer's knowledge must be contemporaneous with the event;
  2. the officer must actually observe or detect the commission of the offence; and
  3. there must be an "objective basis for the officer's conclusion that an offence is "being committed". It "must be apparent to a reasonable person placed in the circumstances of an arresting officer".

It has been found that the strong smell of raw marijuana can be sufficient to conclude that the accused was in possession or marijuana and is arrestable under s.495(1)(b).[3] A faint and intermittent smell is not sufficient for arrest.

The person arresting does not mean that he "must be present when the offence is committed". He can "rely on reasonable inferences drawn from what he or she has seen transpire".[4]

  1. The Queen v Biron, 1975 CanLII 13 (SCC), [1976] 2 SCR 56, per Martland J
    R v Roberge, 1983 CanLII 120 (SCC), 4 CCC (3d) 304, per Lamer J
  2. R v STP, 2009 NSCA 86 (CanLII), 893 APR 1, per MacDonald CJ
  3. R v Harding, 2010 ABCA 180 (CanLII), 482 AR 262, per curiam, at para 29
  4. R v McCowan, 2011 ABPC 79 (CanLII), 509 AR 202, per Fradsham J

Confidential Sources and Informers


When an accused challenges the grounds of a warrantless arrest, trial fairness requires that the onus is on the Crown to establish the reasonable and probable grounds on direct examination and the defence must be permitted to cross-examine the officer.[1]

  1. R v Besharah, 2010 SKCA 2 (CanLII), 251 CCC (3d) 516, per Smith JA, at para 35

Types of Observations Forming Grounds of Arrest

An observed "hand to hand" exchange without any suggestive circumstances is no reasonable basis to conclude an illegal activity.[1]

However, certain activities may be interpreted using expertise and experience may be found to be reasonably believed to be connected to illegal activity.[2]

Marijuana Smell (Pre-October 2018)

The use of the smell of fresh marijuana as grounds to arrest requires an opinion with "substantial underpinnings and training and/or experience" and still be considered with caution.[3]

In many circumstances, there should be some corroboration by another individual.[4]

Observation of a "very strong smell" alone may in some circumstances be sufficient to arrest.[5]

  1. R v Russell, 2017 ABQB 298 (CanLII), per Goss J, at para 35
    R v NO, 2009 ABCA 75 (CanLII), 186 CRR (2d) 60, per curiam, at paras 41 and 42
  2. R v Rajaratnam, 2006 ABCA 333 (CanLII), 214 CCC (3d) 547, per curiam, at para 25
  3. R v Quesnel, 2018 NSSC 221 (CanLII), per Scaravelli J, at para 48
  4. Quesnel, ibid., at para 48
  5. R v Harding, 2010 ABCA 180 (CanLII), 256 CCC (3d) 284, per curiam

Citizen's Arrest

See also: Arrest by a Citizen

See Also