Warrantless Arrests (Until December 18, 2019)

• < Procedure and Practice
• < Arrest and Detention

Introduction

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.

However, an officer cannot be excused for arresting a person for a law that was previously repealed.

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.

– CCC (CanLII), (DOJ)

---

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.

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.

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

Duty Not to Arrest on Public Interest Grounds

495
[omitted (1)]

Limitation

(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]

– CCC (CanLII), (DOJ)

---

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.

Right Against Unlawful Arrest

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.

– CCRF

Purpose

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

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.

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.

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. The only remedy in such a situation would be in an abuse of process application.

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. Thus, the analysis considers both an objective and subjective component.

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

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".

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

Timing When Grounds are Formed

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

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.

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.

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.

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. 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.

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.

Sufficiency of Investigation

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

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.

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.

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.

"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.

"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.

The requirements of "finds committing" consist of:

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). 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."

Confidential Sources and Informers

• See Confidential Informers

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.

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.

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

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.

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

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

See Also

• Compelling the Accused to Attend Court
• Warrant Arrests
• Warrantless Searches
• Warrantless Searches (Cases)