Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Carignan

Case summary

The Supreme Court of Canada finds that an accused person can challenge the lawfulness of an arrest without warrant if the arrest does not comply with the limits set out in the Criminal Code.

This case was about whether an accused person can have a judge review the lawfulness of their arrest by a peace officer. A peace officer is any person in authority who is responsible for maintaining public order and making arrests. Section 495(1) of the Criminal Code describes cases in which an officer can arrest someone without warrant. Section 495(2) sets conditions that limit this power, including on the basis of the public interest and the risk that the person arrested will not attend court. These limits serve to protect individuals from arbitrary detention, which is contrary to section 9 of the Canadian Charter of Rights and Freedoms. When an arrest does not meet these conditions, it may be unlawful.

Mr. Carignan was arrested without warrant several days after the events that led to a sexual assault charge. At the police station, he was interrogated and made an incriminating statement. Before his trial began, he brought a motion to exclude the statement. He argued that his arrest without warrant did not meet the requirements of section 495(2) of the Criminal Code and violated his right not to be arbitrarily detained.

The trial judge refused to hold a voir dire on the lawfulness of the arrest and dismissed the motion. A voir dire is a hearing held during a trial to allow the judge to determine whether evidence was obtained lawfully and whether it can be used in the trial. The incriminating statement was admitted into evidence, and Mr. Carignan was convicted. The Court of Appeal disagreed with the trial judge. It found that Mr. Carignan had to be able to challenge the lawfulness of his arrest without warrant on the ground that it did not comply with the limits imposed by section 495(2). The court decided that a voir dire should have been held on this question, and it ordered a new trial. The Crown appealed to the Supreme Court of Canada.

The Supreme Court has dismissed the appeal.

The trial judge’s refusal to hold a voir dire on the lawfulness of the arrest was an error of law.

Writing for a unanimous Court, Justice Côté found that the text, context and purpose of section 495(2) of the Criminal Code show that the limits imposed on the power of arrest without warrant are mandatory in nature. The statement that a peace officer “shall not” arrest a person without warrant when certain conditions are met must be understood as imposing a real obligation. Officers must assess these criteria before making an arrest. If the conditions are not met, the arrest is unlawful.

Justice Côté also clarified the role of section 495(3) of the Criminal Code. This provision is primarily meant to protect peace officers against certain civil or criminal proceedings arising from an arrest, but it does not make an arrest that violates the mandatory requirements of section 495(2) lawful in the context of a criminal trial.

Finally, Justice Côté explained that the trial judge’s refusal to hold a voir dire on the lawfulness of the arrest was an error of law. The accused person had to have an opportunity to show that his arrest did not meet the requirements of section 495(2) and, if he did so, to establish that the arrest was arbitrary within the meaning of section 9 of the Charter.