The police derive statutory powers of arrest from the provisions beginning at section 495 of the Criminal Code. Section 9 of the Charter of Rights and Freedoms [Charter] enshrines the right to be free from arbitrary detention or imprisonment. One of the first determinations for counsel on any criminal file will be determining whether the arrest itself is lawful. R v Veen1 recently considered this issue from the perspective of a statutory arrest for refusal to provide a breath sample beginning at the trial level and ultimately with reasons from the Alberta Court of Appeal.
The statutory power for arrest in s. 495 of the Criminal Code states:
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 in relation thereto, is in force within the territorial jurisdiction in which the person is found.
Limitation
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
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.
Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (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).
On April 29, 2018, Aaron Veen was arrested for refusing to provide a breath sample when one was demanded of him by a peace officer (s. 320.15 of the Criminal Code). He was taken to the police station despite the arresting officer having no intention to obtain any further incriminating evidence. The officer testified that he intended only to:
1) Remove Mr. Veen from the scene,
2) Complete release paperwork, and
3) Allow Mr. Veen to speak with counsel if he wished.2
At trial, the defence argued that section 495(2) of the Criminal Code should be read such that the officer should have released Mr. Veen at the scene on a Promise to Appear.3 Defence further argued that the officer's failure to do so meant that the arrest was unlawful and thus a breach of Mr. Veen's section 9 Charter rights.4
The Alberta Provincial Court summarized its interpretation of the law as follows:
[39] Nonetheless, Sieben was clear: "S.495 subsection (2) directs a police officer not to arrest in certain cases notwithstanding that he is authorized to do so by ss. (1)", (emphasis original). Under s. 495(2), the peace officer has a duty to consider whether the public interest may be satisfied considering "all of the circumstances, including, but not limited to, the factors mentioned in paragraph (d)" (supra, at p. 361). The list in s. 495(2)(d) is not exhaustive.5
The trial Court held that because the arrest was conducted with no warrant, that all of the evidence had been gathered at the scene (the sum of which was Mr. Veen's failure to provide a sample suitable for testing), and that the public interest could have been satisfied without arresting Mr. Veen, the officer ought to have released Mr. Veen at the scene to comply with subsection 495(2).6 Since there was no justifiable reason to arrest Mr. Veen, it was unlawful as it did not comply with s. 495(2) and thus breached the defendant's right to be free from arbitrary detention.7 The Provincial Court ordered a stay of proceedings under section 24(2) of the Charter.8
The Crown appealed. The summary conviction appeal Court upheld the lower Court's decision in full despite the Crown's argument that the trial Court had ignored R v Fuhr,9 which should have been considered a binding precedent.10 The Alberta Court of King's Bench applied the principles of interpretation since stipulated in Rizzo & Rizzo Shoes Ltd (Re),11 stating that its conclusion was thus different than the one in Fuhr.12 The summary conviction appeal Court held that the interpretation outlined in Fuhr would defeat the legislation's purpose in restricting peace officer's ability to arrest someone without a warrant.13 Fuhr contains lengthy references to decisions that predated the addition of subsections 2 and 3 to s.495 in 1971.
The Crown again appealed on the basis that the summary conviction appeal Court adopted an interpretation of section 495 contrary to the binding precedent in R v Fuhr.14 The Alberta Court of Appeal overturned the trial Court's decision, replacing it with a finding of guilt on the offence and returned the matter to the Provincial Court for, presumably, sentencing.15 The Court of Appeal, which re-examined Fuhr, stated that an arrest which complies with subsection 495(1) is not unlawful despite any noncompliance with 495(2) via the deeming provision in 495(3).16 This decision confirms Fuhr as good law as of the date of the Alberta Court of Appeal's decision in Veen. Subsection 495(2) imposes legal duties on peace officers, but those legal duties do not serve as a shield for those arrested in breach of subsection (2) because Parliament did not intend for the those duties to create a defence to charges involving an arrest which was otherwise lawful.17
Ironically, despite the Alberta Court of Appeal's decision which is explicitly considered in the Quebec Court of Appeal's decision in R v Carignan,18 a new trial was ordered for an accused facing a sexual assault charge who was denied a voir dire to explore the lawfulness of his arrest under section 495. The trial court below refused to hold a voir dire on the basis that the application for a voir dire was without merit as it contradicted the plain meaning and effect of 495(3) and had no reasonable chance of success. This seems to be the position advanced by the Alberta Court of Appeal, but the Quebec Court of Appeal still ordered a new trial on the basis that the accused ought to have been afforded the opportunity to challenge the validity of the arrest under section 495 in light of the restrictions in 495(2). The Quebec Court of Appeal, in its analysis, comments that "section 495(3) deems the exercise of this power nevertheless lawful "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)."19 [emphasis original]. This seems to suggest that the Quebec Court of Appeal has interpreted subsection 495(3) differently than the Alberta Court of Appeal did in Veen, in that the Quebec Court of Appeal has determined that the stated exception found within 495(3)(b) applies to both 495(3)(a) and (b). The Alberta Court of Appeal explicitly addressed this question, seeming to determine the opposite:
[58] A question arose as to the proper interpretation of subsections 495(3)(a) and (b), and specifically, whether the phrase "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)" applies to both subsections (3)(a) and (3)(b)? The Crown submits that the phrase should be read as only applying to subsection (3)(b). We agree.
[59] Excerpts from Parliamentary debates referenced earlier make clear that sections 495(3)(a) and (b) were intended to operate differently and in different contexts, with subsection (a) applying to criminal matters and (b) applying to civil matters. With regards to civil matters, Parliament intended for subsection (3)(b) to operate such that "the person who wants to sue civilly for having been brought to the desk and booked must establish that the [officer] did have reasonable and probable ground to believe that the public interest could be satisfied without so arresting him." This is borne out by the manner in which subsections (3)(a) and (3)(b) are worded and structured, with subsections (a) and (b) appearing separately and the phrase beginning with "unless" being included within subsection (b).
So while section 495(2) has been deemed by the Alberta Court of Appeal to not raise a defence to an otherwise lawful arrest, until the Supreme Court of Canada hears a case on the issue of law that seems to be stemming from the interpretation of the exception to the deeming provision found in section 495(3)(b), the case law may continue to fracture, leaving ambiguity in the interpretation and application of section 495.
The McDougall Gauley Defence Group defends individuals and organizations charged with all types of offences.
Footnotes
1. R v Veen, 2022 ABCA 350.
2. 2019 ABPC 55 at paras 3-18.
3. Supra note 2 at para 27.
4. Ibid.
5. Supra note 21 at para 39.
6. Supra note 21 at paras 40-45.
7. Supra note 2 at para 45.
8. Supra note 2 at para 80.
9. R v Fuhr, 1975 CanLII 1520; in turn relying on the leading case of R v Adams, 1972 CanLII 867 (SK CA).
10. R v Veen, 2020 ABQB 99.
11. Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC).
12. Supra note 10 at para 23.
13. Supra note 10 at paras 63-64.
14. Supra note 9.
15. Supra note 1.
16. Supra note 10 at para 45.
17. Supra note 10 at para 57.
18. R v Carignan, 2024 QCCA 86.
19. Supra note 16 at para 16.
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