New Supreme Court case limiting warrantless arrest power
The Supreme Court has released an important new decision on the police power to arrest without a warrant in R v Carignan, 2025 SCC 43.
For the unanimous majority, Côté J interprets the notoriously confusing rules for warrantless arrests in s. 495 of the Criminal Code. Key takeaways:
Police *shall not* make a warrantless arrest for an absolute jurisdiction, hybrid, or summary conviction offence where an arrest is not necessary (a) to identify the arrestee, secure or preserve evidence, or prevent further offending, or (b) to secure the arrestee's attendance in court.
Courts may review the reasonableness of a police officer's grounds to believe (a) and (b) above. Where those grounds are not reasonable, or where the officer failed to turn their mind to whether the arrest was necessary, the arrestee's s. 9 right against arbirtrary arrest has been infringed.
The provision in s. 495(3) deeming police who have failed to observe these limitations to have acted lawfully *does not* exempt the arrest power from constitutional scrutiny. It means that police benefit from a presumption of lawfulness in proceedings *against that officer*. In criminal proceedings against an arrestee, an officer's failure to observe the limitations in s. 495 infringes s. 9 of the Charter.
This case affirms that the arrest power is extraordinary. It is not enough for an officer to believe an offence has been or is about to be committed. The arrest must also be necessary to identify, preserve evidence, prevent offending, or secure attendance in court.
In this case, the trial judge's refusal to hold a voir dire into the arresting officer's compliance with s. 495 was an error of law requiring a new trial. Defence lawyers will want to carefully consider the reasonableness of the arrest to decide whether to bring an application for relief under s. 9 of the Charter.