View source for Warrantless Arrests

{{LevelZero}}{{HeaderArrest}}
==Introduction==
{{seealso|Compelling the Accused to Attend Court|Release by Police on Undertaking|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{{CCC}}.
[[File:Arrest.png|1600px]]

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.<ref>
{{CanLIIRP|Biron|1mzj8|1975 CanLII 13 (SCC)|, [1976] 2 SCR 56 (CanLII)}}{{perSCC|Martland J}} (5:3)
</ref>

However, an officer cannot be excused for arresting a person for a law that was previously repealed.<ref>
{{CanLIIR|Houle|2djrg|1985 ABCA 275 (CanLII)}}{{perABCA|Stevenson JA}} (3:0)<br>
</ref>

{{reflist|2}}

==Power to Arrest==
Where there is no warrant for a person's arrest, a [[Peace Officers|peace officer]] is governed by section 495:
{{quotation2|
; 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 {{AnnSec|Part XXVIII}} in relation thereto, is in force within the territorial jurisdiction in which the person is found.
{{Removed|(2)}}
; Consequences of arrest without warrant
(3) Notwithstanding subsection (2) {{AnnSec4|495(2)}}, a peace officer acting under subsection (1) {{AnnSec4|495(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) {{AnnSec4|495(2)}}.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
{{Annotation}}
|[{{CCCSec|495}} CCC]
|{{NoteUp|495|1|3}}
}}

A police officer can arrest where:
# there is reasonable grounds a person has committed an indictable offence;
# there is reasonable grounds a person is about to commit an indictable offence;
# a person is committing an indictable offence; or 
# 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.<ref>
{{CanLIIRPC|Moore v The Queen|1z76c|1978 CanLII 160 (SCC)|, [1979] 1 SCR 195}}{{perSCC|Spence J}}</ref>

Section 495 (1)(b) does not require the officer to "rule out potential innocent explanations" to his observations.<ref>
{{CanLIIR|MacCannell|g8jv5|2014 BCCA 254 (CanLII)}}{{perBCCA|Garson JA}}{{atL|g8jv5|46}}
</ref>
The formation of reasonable grounds does not require a prima facie case.<ref>
{{ibid1|MacCannell}}<br>
</ref>

{{reflist|2}}

===Arrest for Breach of Peace===
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 has been a breach of the peace or where there is one that is imminent.<ref>
{{CanLIIRPC|Hayes v Thompson|1p6p7|1985 CanLII 151 (BCCA)|, 18 CCC (3d) 254}}{{perBCCA|Hutcheon JA}}<br>
{{CanLIIRPC|Brown v Durham (Regional Municipality) Police Force|6gkq|1998 CanLII 7198 (ON CA)|, [1998] O.J. No. 5274}}{{perONCA|Doherty JA}}<br>
{{CanLIIR|Collins|frd14|2012 CanLII 26587 (NLPC)}}{{perNLPC|Orr J}}<br>
{{CanLIIR|Khatchadorian|1dxsl|1998 CanLII 6115 (BCCA)}}{{perBCCA|Hall JA}}{{atL|1dxsl|8}} ("It seems to me that there exists clear authority in previous judgments of this court to sustain the proposition that a police officer is entitled to make a lawful arrest of someone who is engaged in a breach of the peace or who it is anticipated may shortly engage in such activity.")
{{CanLIIR|Lefebvre|22kj3|1984 CanLII 473 (BCCA)| (1984), 1984 CanLII 473 (BCCA), 15 CCC (3d) 503}}{{perBCCA|Craig JA}}<br>
</ref>
This power is limited and cannot permit a "roving commission" to arrest those who the police wish.<Ref>
{{supra1|Khachadorian}}
</ref>
They must have a "reasonable basis" to invoke this power. This includes the requirement that the conditions pre-exist the officer's attendance rather than being the result of police action.<Ref>
{{supra1|Khachadorian}}
</ref>

{{reflist|2}}

===Arrest for Breach of Conditions===
{{quotation2|
; Arrest without warrant – application of section 524
495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524 {{AnnSec5|524}}.

{{LegHistory10s|2019, c. 25}}, s. 211.
{{Annotation}}
|[{{CCCSec|495.1}} CCC]
|{{NoteUp|495.1}}
}}

{{C75-fix}}

==Duty Not to Arrest on Public Interest Grounds==
{{quotation2|
495.<br>
{{Removed|(1)}}
; Limitation
(2) A peace officer shall not arrest a person without warrant for
:(a) an indictable offence mentioned in section 553 {{AnnSec5|553}},
:(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction [''i.e. [[List of Hybrid Offences|hybrid offences]]''], or
:(c) an offence punishable on summary conviction [''see [[List of Summary Conviction Offences|list of summary offences]]''], <br>
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.
{{Removed|(3)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 495; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 75.
{{Annotation}}
|[{{CCCSec|495}} CCC]
|{{NoteUp|495|2}}
}}

The failure to properly consider factors in favour of release may be grounds to find arbitrary detention.<Ref>
see {{CanLIIR-N|Baker| (1988), 88 NSR (2d) 250 (NSCA)}}<Br>
{{CanLIIR-N|Cayer| (1988), OJ No. 1120 (ONCA)}}<Br>
</ref>

{{reflist|2}}

===Appearance Notice on Public Interest Grounds===

{{quotation2|
; Issue of appearance notice by peace officer
497 If, by virtue of subsection 495(2) {{AnnSec4|495(2)}}, a peace officer does not arrest a person, they may issue an appearance notice to the person if the offence is
:(a) an indictable offence mentioned in section 553 {{AnnSec5|553}};
:(b) an offence for which the person may be prosecuted by indictment or for which they are punishable on summary conviction; or
:(c) an offence punishable on summary conviction.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 497;
{{LegHistory90s|1999, c. 25}}, s. 3(Preamble);
{{LegHistory10s|2019, c. 25}}, s. 212.
{{Annotation}}
|[{{CCCSec|497}} CCC]
|{{NoteUp|497}}
}}
{{C75-fix}}

==Right Against Unlawful Arrest==
{{seealso|Investigative Detention#Right Against Arbitrary Detention}}

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:
{{quotation2|
9.	  Everyone has the right not to be arbitrarily detained or imprisoned.
|[http://canlii.ca/t/ldsx CCRF]
|{{NoteUpCCRF|9}}
}}

; Purpose
The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference"<ref>
{{CanLIIR|Grant|24kwz|2009 SCC 32 (CanLII)}}{{perSCC|McLachlin CJ}}{{atL|24kwz|20}}</ref>
Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"<Ref>
{{ibid1|Grant}}{{atL|24kwz|55}}</ref>

; Burden
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.<ref>
{{CanLIIRP|Bush|2c2z2|2010 ONCA 554 (CanLII)|, 259 CCC (3d) 127}}{{perONCA|Durno J}}{{atL|2c2z2|74}}<br> 
{{CanLIIRP|B(L)|1srnc|2007 ONCA 596 (CanLII)|, 227 CCC (3d) 70}}{{perONCA|Moldaver JA}}{{atL|1srnc|60}}
</ref>

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.<ref>
{{CanLIIR|Murphy|htkp0|2018 NSSC 191 (CanLII)}}{{perNSSC|Rosinski J}}{{atL|htkp0|4}}<br>
</ref>

; Standing
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.<ref>
{{CanLIIR|Todd|ghdpn|2015 BCSC 680 (CanLII)}}{{perBCSC|Rogers J}}
{{CanLIIR|Tran|gs021|2016 BCPC 159 (CanLII)}}{{perBCPC|Lamperson J}}{{atsL|gs021|46| to 49}}<Br>
cf. {{CanLIIR|Brown|g8vdx|2014 BCSC 1665 (CanLII)}}{{perBCSC|Funt J}}
</ref>
The only remedy in such a situation would be in an abuse of process application.<ref>
{{ibid1|Tran}}{{atL|gs021|46}}<br>
</ref>

{{reflist|2}}

==Reasonable and Probable Grounds==
{{seealso|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.<ref>
{{CanLIIR|Storrey|1fsxl|1990 CanLII 125 (SCC)}}{{perSCC|Cory J}}{{atps|250-1}}</ref>
Thus, the analysis considers both an objective and subjective component.<Ref>
{{ibid1|Storrey}}<br> 
{{CanLIIR|Grotheim|4t8n|2001 SKCA 116 (CanLII)}}{{perSKCA|Cameron JA}}<br>
{{CanLIIRP|McClelland|2dc2x|1995 ABCA 199 (CanLII)|, (1995), 165 A.R. 332 (C.A.)}}{{perABCA|McFadyen JA}} (2:1){{atL|2dc2x|21}}<br>
{{CanLIIR|Juan|1rvxl|2007 BCCA 351 (CanLII)}}{{perBCCA|Thackray JA}}{{atL|1rvxl|27}}<br>
{{CanLIIR|Phung|fw3p0|2013 ABCA 63 (CanLII)}}{{TheCourtABCA}}
</ref> 

An arresting officer is not required the same scrutiny as a justice of a peace would need to be in considering a search warrant.<Ref>
see {{CanLIIRP|Polashek|1f9ff|1999 CanLII 3714 (ON CA)|, (1999), 45 O.R. (3d) 434}}{{perONCA|Rosenberg JA}}
{{supra1|Golub}}{{atp|750}}<br>
</ref>

; 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".<Ref>
{{supra1|Phung}}{{atL|fw3p0|10}}<br>
</ref>

The analysis is "approached as a whole" looking at the "cumulative effect" of all the evidence known at the time.<ref>
{{CanLIIR|Nolet|2b8jp|2010 SCC 24 (CanLII)}}{{perSCC|Binnie J}}{{atL|2b8jp|48}}<br>
</ref> 

; Timing When Grounds are Formed
Police cannot arrest first and then determine after the fact whether the accused had a connection with their investigation.<ref>see {{CanLIIR|Whitaker|1wqgl|2008 BCCA 174 (CanLII)}}{{perBCCA|Frankel JA}}<br> 
{{CanLIIR|Chaif-Gust|fpdw6|2011 BCCA 528 (CanLII)}}{{perBCCA|Finch CJ}}</ref>

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.<ref>
{{CanLIIRP|Golub|6hfp|1997 CanLII 6316 (ON CA)|, (1997), 34 O.R. (3d) 743, 117 CCC (3d) 193 (C. A.)}}{{perONCA|Doherty JA}}{{atp|750}}
</ref>

; Sources
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.<ref>
{{CanLIIR|Chin|55wd|2003 ABPC 118 (CanLII)}}{{perABPC|Allen J}}{{atL|55wd|60}}</ref>

; 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.<ref> 
{{CanLIIRP|Lal|1dxmv|1998 CanLII 4393 (BCCA)| , 130 CCC (3d) 413 (BCCA)}}{{perBCCA|Ryan JA}}</ref>

; 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.<ref>
{{CanLIIR|Chervinski|fvxtw|2013 ABQB 29 (CanLII)}}{{perABQB|Hall J}}{{atsL|fvxtw|21|, 22}}<br>
</ref>
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.<ref>
{{CanLIIR|Shokar|1nc1w|2006 BCSC 770 (CanLII)}}{{perBCSC|Joyce J}}{{atL|1nc1w|21}}<br>
{{CanLIIR|Hall|1mn1f|2006 SKCA 19 (CanLII)}}{{perSKCA|Gerwing JA}}<br>
</ref>

; 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.<ref>
{{CanLIIR|Chubak|2224h|2009 ABCA 8 (CanLII)}}{{perABCA|Ritter JA}}{{atL|2224h|18}}<br>
{{CanLIIR|Galye|gmk12|2015 BCSC 1950 (CanLII)}}{{perBCSC|Kent J}}{{atL|gmk12|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")<br>
</ref>

; Sufficiency of Investigation
An arrest may be invalid where the investigator failed to gather sufficient information to form grounds by abbreviating their investigation.<ref>
e.g.  {{CanLIIRP|Munoz|1mj8t|2006 CanLII 3269 (ONSC)|, (2006), 86 O.R. (3d) 134, 205 CCC (3d) 70 (Ont. Sup. Ct. J.)}}{{perONSC|Ducharme J}}</ref>

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.<ref>
{{CanLIIR|NO|22ms4|2009 ABCA 75 (CanLII)}}{{TheCourtABCA}}<br> 
{{CanLIIR|Rahmani-Shirazi|1x3fv|2008 ABQB 145 (CanLII)}}{{perABQB|Sullivan J}}
</ref>

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.<ref>
{{CanLIIR|Gerson-Foster|j0xl9|2019 ONCA 405 (CanLII)}}{{perONCA|Paciocco JA}}
</ref> 

; 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.<ref>
{{supra1|Galye}}{{atL|gmk12|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")<Br>
</ref>

{{reflist|2}}

==="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.<ref>
see {{CanLIIRP|Beaudette|htx5s|1957 CanLII 502 (ON CA)| , 118 CCC 295}}{{perONCA|Schroeder JA}}
</ref>

{{reflist|2}}

==="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.<ref>
{{CanLIIRPC|The Queen v Biron|1mzj8|1975 CanLII 13 (SCC)|, [1976] 2 SCR 56}}{{perSCC|Martland J}}<br>
{{CanLIIRP|Roberge|1xv63|1983 CanLII 120 (SCC)|, 4 CCC (3d) 304}}{{perSCC|Lamer J}}</ref> 

The requirements of "finds committing" consist of:<ref>
{{CanLIIR|STP|2587s|2009 NSCA 86 (CanLII)}}{{perNSCA|MacDonald CJ}}<Br>
</ref>
# the officer's knowledge must be contemporaneous with the event;
# the officer must actually observe or detect the commission of the offence; and 
# 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).<ref>
{{CanLIIRP|Harding|2b3lw|2010 ABCA 180 (CanLII)|, 482 AR 262}}{{TheCourt}}{{atL|2b3lw|29}}<br>
</ref>
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".<ref>
{{CanLIIR|McCowan|fkdz2|2011 ABPC 79 (CanLII)}}{{perABPC|Fradsham J}}
</ref>

{{reflist|2}}

===Confidential Sources and Informers===
* See [[Confidential Informers]]

===Procedure===
{{seealso|Arrest Procedure}}
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.<ref>
{{CanLIIR|Besharah|27hjv|2010 SKCA 2 (CanLII)}}{{perSKCA|Smith JA}}{{atL|27hjv|35}}
</ref>

{{reflist|2}}

==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.<ref>
{{CanLIIR|Russell|h3h1d|2017 ABQB 298 (CanLII)}}{{perABQB|Goss J}}{{atL|h3h1d|35}}<Br>
{{CanLIIR|NO|22ms4|2009 ABCA 75 (CanLII)}}{{TheCourtABCA}}{{atsL|22ms4|41| and 42}}<br>
</ref>

However, certain activities may be interpreted using expertise and experience may be found to be reasonably believed to be connected to illegal activity.<Ref>
{{CanLIIR|Rajaratnam|1pxz2|2006 ABCA 333 (CanLII)}}{{TheCourtABCA}}{{atL|1pxz2|25}}<br>
</ref>

; 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.<Ref>
{{CanLIIR|Quesnel|hvhfx|2018 NSSC 221 (CanLII)}}{{perNSSC|Scaravelli J}}{{atL|hvhfx|48}}<br>
</ref>

In many circumstances, there should be some corroboration by another individual.<ref>
{{ibid1|Quesnel}}{{atL|hvhfx|48}}<Br>
</ref>

Observation of a "very strong smell" alone may in some circumstances be sufficient to arrest.<ref>
{{CanLIIR|Harding|2b3lw|2010 ABCA 180 (CanLII)}}{{TheCourtABCA}}<br>
</ref>

{{reflist|2}}

==Citizen's Arrest==
{{seealso|Arrest by a Citizen}}

==See Also==
* [[Release by Police on Undertaking]]
* [[Compelling the Accused to Attend Court]]
* [[Warrant Arrests]]
* [[Warrantless Searches]]
* [[Warrantless Searches (Cases)]]
* [[Warrantless Arrests (Until December 18, 2019)]]