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Introduction
Fifty-four years after Parliament passed the Bail Reform Act, the Supreme Court of Canada (“SCC”) clarified the law with respect to challenging the lawfulness of an arrest without a warrant. The unanimous judgment in R v Carignan, 2025 SCC 43 [Carignan] authored by Justice Côté interprets subsections 495(2) and (3) of the Criminal Code which had originally been enacted as part of the Bail Reform Act. This judgment is significant as it allows accused persons to establish a breach of their Charter right to be free from arbitrary arrest where their arrest was made contrary to subsection 495(2).
Background
Section 495 articulates the scope of police powers to make arrests without a warrant. Subsection (1) enumerates the circumstances where the police may make arrests without a warrant, while subsection (2) carves out limits on such powers. Specifically, subsection (2) states that a police officer shall not arrest a person without a warrant where certain conditions are met. On the other hand, subsection (3) titled “consequences of arrest without a warrant” states "Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty..." [Emphasis added.]
Facts
In Carignan, the police arrested the accused at his college without a warrant. The accused subsequently made an incriminating statement during a video-recorded interrogation at the police station (Carignan, paras 9-11). Before trial, the accused sought to exclude the statement pursuant to section 24 of the Charter (this section allows a court to exclude evidence that was obtained in a manner that infringed upon a Charter right). The accused argued that the arrest breached section 9 of the Charter because it was unlawful: specifically, the arrest was contrary to subsection 495(2) of the Criminal Code (Carignan, para 12).
Judicial History
The trial judge refused to hold a voir dire to determine the lawfulness of the arrest. He reasoned that an arrest contrary to subsection 495(2) is nevertheless deemed lawful pursuant to subsection (3), pointing to the language: “Notwithstanding subsection (2), a peace officer… is deemed to be acting lawfully…” (Carginan, para 13). The Quebec Court of Appeal agreed with the trial judge that subsection (3) deems lawful an arrest contrary to subsection (2) (Carignan c R, 2024 QCCA 86 [Carignan, QCCA]). However, the Court of Appeal highlighted that subsection (3) also includes the language “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).” According to the Court, this language “explicitly” reserves an opportunity to challenge the lawfulness of the arrest “upon allegation and proof” (Carignan, QCCA, paras 16-18). The appeal was allowed.
For an analysis of the Court of Appeal’s decision, see Appeal Watch by Chelsea Latremouille.
Issues
The central issue in Carignan was whether subsection 495(3) nullified the right of an accused person to challenge the lawfulness of their arrest on grounds that the police violated subsection 495(2).
Decision
The SCC provided much-needed clarity on the interpretation of section 495. Justice Côté, on behalf of a unanimous Court, relied on the modern approach to statutory interpretation, looking to the words of the provision “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Carignan, para 55). Following this approach, she concluded that, first, an arrest contrary to subsection (2) is arbitrary within the meaning of section 9 of the Charter, and second, subsection (3) does not deem lawful an arrest contrary to subsection (2) because subsection (3) is inapplicable to the criminal trial of the accused subject to the warrantless arrest. Rather, subsection (3) relates to officer liability (Carignan, paras 84 and 90).
Looking to the text and context, Justice Côté emphasized the difference between the lawfulness of police conduct and the lawfulness of arrest. The difference in the language between subsections 495(2) and (3) indicates that, although the former deals with the lawfulness of arrest, the latter protects police officers from liability, especially where the decision to arrest must be made in the heat of the moment (Carignan, paras 98-99). Looking to the purpose, Justice Côté went through Parliamentary debates and other material preceding the enactment of the Bail Reform Act, which formed the basis of section 495 as it currently stands (Carignan, paras 31-40). She highlighted that Parliament enacted these provisions to achieve a balance between individual rights and police powers (Carignan, paras 138-39). It follows that subsection (2) was enacted to restrict police powers while subsection (3) was enacted to reduce personal consequences for police officers where they inevitably make an arrest contrary to subsection (2) (Carignan, paras 34-35).
Analysis
This case presented the SCC with its first opportunity to define the relationship between subsections 495(2) and (3) of the Criminal Code. But this decision came more than fifty years after the Bail Reform Act received royal assent. For decades, courts across Canada misinterpreted subsection 495(3), often with meaningful consequences for accused persons. In some cases, it even came down to an acquittal or conviction.
For example, in 1972, the Saskatchewan Court of Appeal in R v Adams, 1972 CanLII 867 (SKCA) [Adams] denied the accused the opportunity to raise a defence of unlawful arrest on grounds that subsection (3) deemed lawful an arrest contrary to subsection (2) (previously located elsewhere in the Criminal Code). Interestingly, the Court implicitly acknowledged the tension between restricting police powers on the one hand and excusing breaches of those limits on the other. The Court wrote: “if it were not for subs. (3) a strong argument might be advanced that the peace officer, in making an arrest under such circumstances, was not acting lawfully in the execution of his duty” (Adams, para 10). Despite this, the Court set aside the acquittal and entered a guilty verdict for resisting an officer engaged in the execution of his duty in making an arrest. Other courts adopted similar reasoning.
The Charter did not mark a shift in the interpretation of subsections (2) and (3). Ironically, most courts continued to interpret subsection (3) as precluding a Charter application to challenge a warrantless arrest contrary to subsection (2) even though Parliament could not have conceived, at the time of enactment, that the Charter would provide a mechanism for accused persons to seek exclusion of evidence based on violations of their constitutional rights. The interpretation entrenched in the jurisprudence denied the right to exclude evidence pursuant to section 24 of the Charter where a warrantless arrest contrary to subsection (2) breached the accused’s right to be free from arbitrary arrest as guaranteed by section 9 of the Charter (R v Jowett Work, 2019 BCCA 236 provides an example where the British Columbia Court of Appeal overturned the trial judge’s order to exclude evidence of drugs).
However, the interpretation of subsections 495(2) and (3) went beyond denying accused persons the right to exclude evidence. It also undermined the seriousness of unlawful arrests by rendering subsection (2) meaningless to a criminal proceeding. This interpretation limited the remedies available to accused persons “no matter how flagrant or systemic” their unlawful arrest was (Factum of the Intervener, Canadian Civil Liberties Association, para 29). It also allowed police practices that breached subsection (2). Practically speaking, the courts’ interpretation produced an outcome directly contrary to the legislature’s intent by turning a provision meant to restrict warrantless arrests into one that permitted them.
The SCC in Carignan aligns subsections 495(2) and (3) with the intent of Parliament in enacting the Bail Reform Act. In doing so, the Court put an end to an approach that denied accused persons the ability to challenge the lawfulness of their arrest made contrary to subsection (2). But one question remains: why did it take so long?
Conclusion
The SCC has unanimously affirmed that accused persons can bring a section 9 Charter application to challenge the lawfulness of a warrantless arrest made contrary to subsection 495(2). The Court explained that subsection 495(3) governs officer liability and therefore is inapplicable to challenging arrests at a criminal trial. This decision restores subsection 495(2) to its intended role of restricting warrantless arrests while allowing police officers to fulfill their duties without fear of prosecution. It is a long-awaited but welcome development.
This article was edited by Chris Bai.