R. v. Carignan, 2024 QCCA 86, 2025 SCC 43 (41186)
“The accused was arrested without warrant 11 days after committing, according to the allegations in the indictment, sexual assault. At the police station, he was subjected to an interrogation that was recorded on video, during which he made an incriminating statement. Before his trial began, the accused filed a motion asking the court to exclude the incriminating statement on the ground that his arrest without warrant was unlawful and therefore arbitrary within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms. According to him, the arrest without warrant was contrary to s. 495(2) of the Criminal Code because the police did not believe on reasonable grounds that the arrest was necessary to satisfy the public interest and because there was no risk that he would fail to attend for his appearance.
The trial judge refused to hold a voir dire to determine the lawfulness of the arrest under s. 495(2). He found that an arrest without warrant that is contrary to s. 495(2) is nonetheless lawful through the application of s. 495(3) as long as the peace officer acts in compliance with s. 495(1)(a). Since the peace officers had believed on reasonable grounds that an offence had been committed within the meaning of s. 495(1)(a), the judge was of the view that the accused’s motion had no chance of success. The incriminating statement was not excluded, and the accused was convicted. On appeal by the accused, the Court of Appeal found that the interpretation of s. 495(2) and (3) adopted by the trial judge was incorrect. In its opinion, there were valid grounds for the request for a voir dire, since s. 495(3) provides an opportunity to challenge the lawfulness of an arrest without warrant and since there was no apparent basis on which to conclude that s. 495(2) justified the accused’s arrest. The Court of Appeal ordered a new trial.”
The SCC (9:0) dismissed the appeal.
Justice Côté wrote as follows (at paras. 2-7, 71-72, 74, 79, 82, 112, 136-137):
“It must be acknowledged that s. 495(2) and s. 495(3) Cr. C. are not drafted in the clearest manner. The proof of this is that courts across the country disagree on the interpretation to be given to them. To decide this appeal, I rely on the modern approach to statutory interpretation, which requires that the meaning of these provisions be ascertained in light of their text, their context and their purpose.
First, I interpret s. 495(2) Cr. C. to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. My analysis leads to the conclusion that this provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) Cr. C. is unlawful under the Criminal Code. This provision is not merely a guideline, a practice guide or a suggestion from Parliament. On the contrary, it obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) Cr. C. are met.
Second, I interpret s. 495(3) Cr. C. to determine whether its effect is to deprive an accused of the opportunity to allege an infringement of s. 9 of the Charter and to obtain a remedy under s. 24 in a criminal proceeding relating to the accused’s own criminal liability. My analysis leads me to conclude that this provision applies in very specific cases, namely where a proceeding specifically concerns the liability of the peace officer who made an arrest contrary to s. 495(2) Cr. C. and of any person responsible for that peace officer. On the one hand, s. 495(3)(a) Cr. C. applies where the proceeding is brought under the Criminal Code or any other Act of Parliament and concerns the criminal liability of the peace officer or of persons responsible for that officer. On the other, s. 495(3)(b) Cr. C. applies where the proceeding is brought under a statute that is not the Criminal Code or another Act of Parliament. This includes a civil proceeding that concerns the civil liability of the peace officer who made the arrest contrary to s. 495(2) Cr. C. or of persons responsible for that officer.
In sum, the common feature of s. 495(3)(a) and (b) Cr. C. is that the proceeding must necessarily relate to the criminal or civil conduct of a peace officer where there has been a contravention of s. 495(2) Cr. C. This therefore means, for the purposes of this appeal, that s. 495(3) Cr. C. is not applicable, since this appeal concerns a criminal proceeding relating to the criminal liability of the person arrested without warrant. Section 495(3)(a) Cr. C. thus does not nullify from the outset the chances of success of a person arrested without warrant who would like to challenge the lawfulness of his or her arrest through a voir dire based on s. 9 of the Charter.
Section 495(2) Cr. C. is mandatory in nature and allows an accused to raise, under s. 9 of the Charter in the context of a voir dire, the unlawfulness and arbitrariness of an arrest that does not comply with this provision. Moreover, s. 495(3) Cr. C., properly interpreted, cannot serve in this case to immunize an arrest contrary to s. 495(2) Cr. C., since the proceeding does not relate to the criminal liability of a peace officer or of persons responsible for that officer.
The trial judge was required in this case to hold a voir dire to determine the lawfulness of the respondent’s arrest without warrant. The respondent’s motion was not manifestly frivolous, contrary to what was decided. The failure to hold a voir dire is a reviewable error of law that warrants a new trial.
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In summary, s. 495(1) Cr. C. differs from s. 495(2) in that it provides that a peace officer “may arrest without warrant . . . a person” (“peut arrêter sans mandat . . . une personne”), whereas s. 495(2) Cr. C. instead says “shall not arrest a person without warrant” (“ne peut arrêter une personne sans mandat”). Section 495(1) Cr. C. is therefore permissive, because it makes a grant of powers, rights, authorizations or permissions (Interpretation Act, s. 11, the French version of which refers to “[l]’octroi de pouvoirs, de droits, d’autorisations ou de facultés”) and thus connotes the existence of “an area of discretion” (Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95, at p. 97). The contrast between “may” (“peut”) and “shall not” (“ne peut”) in s. 495 Cr. C. reinforces the idea that Parliament’s intention was to confer a certain degree of discretion on peace officers in s. 495(1) Cr. C. but to impose an obligation or duty on them in s. 495(2) Cr. C. (see, e.g., Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 108, per La Forest J., dissenting, but not on this point).
I also observe that the marginal note to s. 495(2) Cr. C. is titled “Limitation” (“Restriction”). . While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it does serve as an additional indication that s. 495(2) Cr. C. should be interpreted as imposing binding limitations on the powers set out in s. 495(1) Cr. C.
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In summary, an analysis of the context of s. 495(1), (2) and (3) Cr. C. reveals a coherent legislative structure in which each provision plays a complementary role. Section 495(1) Cr. C. creates a power of arrest without warrant, while s. 495(2) Cr. C. strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) Cr. C. confirms the normative character of s. 495(2) Cr. C. by setting out protective mechanisms in the event of non‑compliance.
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In my opinion, Parliament intended that a peace officer’s exercise of the power of arrest without warrant be strictly regulated through the mandatory requirements of s. 495(2) Cr. C. in order to promote the public interest and ensure the person’s appearance in court. The purpose of s. 495(2) Cr. C. is therefore clear: it is to limit the discretion of police officers by identifying the situations in which an arrest without warrant is not required in order to reduce what are considered to be unnecessary arrests. Interpreting s. 495(2) Cr. C. as simply setting out guidelines would therefore be contrary to what Parliament intended, since it would not effectively assist in reducing unnecessary arrests without warrant.
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I therefore find that an analysis of the text, context and purpose of s. 495(2) Cr. C. leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) Cr. C. are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) Cr. C. where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.
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In short, it is clear that Parliament’s intention in enacting s. 495(3)(a) Cr. C. was to protect, first and foremost, the peace officer who made an arrest without warrant contrary to s. 495(2) Cr. C., as well as any person responsible for that officer. This protection was directed in particular at proceedings in which they could be found criminally liable for non‑compliance with s. 495(2) Cr. C. Read as a whole, the debates therefore do not support the argument that the presumption of lawfulness in s. 495(3) Cr. C. applied to the arrest itself, despite what the Crown suggests in this case.
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In conclusion, s. 495(3) Cr. C. is intended to govern the liability of peace officers for failure to comply with the requirements of s. 495(2) Cr. C. Since peace officers are called upon to exercise their judgment quickly to make an arrest without warrant in circumstances that are often unpredictable, it was necessary for Parliament to establish some protection in relation to the then new limitation on their discretion introduced by s. 495(2) Cr. C. From this perspective, s. 495(3)(a) Cr. C. provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) Cr. C., it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) Cr. C. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) Cr. C. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof.”