R. v. Carignan 2025 SCC 43 - Case Summary

The Supreme Court of Canada clarifies the power to arrest without a warrant.

Who

• Carignan is arrested without warrant, for a sexual assault alleged to have occurred 11 days prior.

• Following his arrest, police interrogate Carignan, where he made incriminating statements.

What

• Prior to the trial, Carignan’s lawyer applied to exclude the incriminating statements on the basis that his arrest was unlawful and contrary to the Canadian Charter of Rights and Freedoms.

• The judge refused to hold a voir dire to determine if Carignan’s arrest was lawful.

• The judge relied on Carignan’s incriminating statement, found him guilty of sexual assault, and sentenced him to 15 months jail and 2 years probation.

Where

• The trial is heard in the Court of Quebec (QCCQ).

• Carignan appealed his conviction, in part, due to the judge refusing to hold a voir dire regarding the lawfulness of his arrest and the exclusion of his statement.

• The Quebec Court of Appeal (QCCA) agreed with Carignan, allowed the appeal, and ordered a new trial.

• The Crown appealed to the Supreme Court of Canada (SCC), where the appeal was dismissed.

Why

• Peace officers have the power to arrest without a warrant in four situations (s. 495(1)):

  • (1) a person has committed an indictable offence; or

  • (2) they have reasonable grounds to believe a person is about to commit an indictable offence; or

  • (3) they find a person committing a crime; or

  • (4) they have reasonable grounds to believe a person has a warrant of arrest or committal in the territorial jurisdiction in which the person is found.

• This power is not absolute. It is restrained by s. 495(2) and s. 495(3) of the Criminal Code of Canada:

  • s. 495(2)

    • A peace officer shall not arrest a person without warrant for

      • An indictable offence that is within the exclusive jurisdiction of the provincial court (Criminal Code s. 553, includes theft, breach of recognizance or probation order)

      • Hybrid offences

      • Strictly summary offences

    • UNLESS

      • They believe on reasonable grounds that the public interest can NOT be satisfied without arresting the person (s. 495(d)) AND/OR

      • They believe on reasonable grounds that if they do not arrest the person, that person will fail to attend court (s. 495(e))

• Para 66:

  • “In short, the text of the provision suggests that, in practice, peace officers have an obligation, before making any arrest without warrant, to assess whether the public interest can be satisfied and the person’s attendance in court ensured in some other way. This would therefore mean that peace officers should refrain from making such an arrest where they believe on reasonable grounds that these two conditions are met.”

• Per s. 495(3), peace officers are protected from criminal & civil proceedings related to an arrest without a warrant UNLESS it is established that they did not comply with the conditions of s.495(2):

  • “Section 495(3) Cr. C. creates a presumption of lawfulness applicable to the conduct of a peace officer who has made an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C. Section 495(3)(b) provides, however, for the possibility of rebutting this presumption in a proceeding not brought under the Criminal Code or any other Act of Parliament, where the person alleging the unlawfulness of the peace officer’s conduct establishes that the officer did not comply with the requirements of s. 495(2) Cr. C.” (para 141)

• An accused may assert an infringement of their Charter protected rights if they are arrested without a warrant AND contrary to the limitations of s. 495(2).

The Gist

• Peace officers may arrest without a warrant in limited circumstances.

• If these circumstances are not met, an accused may apply for a Charter remedy.

• Peace officers are protected by a rebuttable presumption they were acting lawfully and in execution of their duty in an arrest without a warrant. This presumption applies to criminal & civil proceedings against the peace officer, not in the criminal case against an accused.

• s. 495 of the Criminal Code is a reminder of the importance of grammar, sentence structure, and word choice. Double negatives are not ideal for clarity.