Appeal Watch: R v Carignan – When can an Accused Rebut the Deemed Lawfulness of a Warrantless Arrest?

In R v Carignan [41186], the Supreme Court of Canada (“Supreme Court”) will — for the first time — interpret the scope of and relationship between ss 495(2) and 495(3) of the Criminal Code, RSC 1985, c C-46. Section 495 governs police powers to arrest without warrant. Subsections (2) and (3) of this provision have long concerned courts and commentators: the statutory language is ambiguous and a plain language reading of (3) seems to rob (2) of any teeth. The Quebec Court of Appeal’s decision in Carignan c R, 2024 QCCA 86 [Carignan] diverges from the dominant interpretation among provincial courts of appeal and calls for the Supreme Court to clarify the scope of this important police power.

Facts 

On March 20^th, 2018, David Carignan was arrested without a warrant for sexual assault in relation to events that occurred the night of March 8^th (Memorandum of Argument for the Appellant, para 30 [Memorandum]). Carignan was brought to the police station and questioned. He declined to consult counsel, and, in a video-taped interview, made an incriminating statement (Carignan, para 7).

Before the start of trial, Carignan filed a motion to exclude the statement on the basis that his arrest was illegal and thus a violation of s9 of the Charter. Carignan claimed that the police had no reasonable grounds to believe that his arrest was necessary to protect the public interest according to s495(2) (Ibid). The trial judge refused to hold a voir dire on the legality of the warrantless arrest and summarily dismissed the motion on the basis of the s495(3) deemed lawfulness clause (Memorandum, para 33).

Statutory Framework for Warrantless Arrest

Section 495 confers on police the power to arrest without a warrant. Subsection 495(1) outlines the necessary conditions for a warrantless arrest. It says that police “may arrest” without a warrant in any of three types of circumstances: 1) where a person has committed an indictable offence, or the police have reasonable grounds to believe the accused has or is about to commit an indictable offence, 2) where police find a person in the process of committing a criminal offence, or 3) where the police have reasonable grounds to believe that there is an outstanding warrant for their arrest in force within the jurisdiction. In short, s495(1) creates a limited permissive (“may arrest”) power of warrantless arrest. From a statutory interpretation perspective, this section is unproblematic.

Subsection (2) is where the difficulty begins. This section, structured opaquely with several double and even triple negatives, creates an affirmative duty not to arrest if certain specified conditions are met. Subsection (2) thus creates a mandatory exception to the permissive conditions of subsection (1) in the case of minor indictable offences, hybrid offences, and summary offences where the officer has reasonable grounds to believe that the public interest may be satisfied without arresting the person and the officer has no reasonable grounds to believe the person will fail to attend court. 

Subsection (3) only adds to the interpretive challenges. It provides that notwithstanding the duty in subsection (2), a police officer acting under subsection (1) is “deemed to be acting lawfully” for the purpose 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).

The interpretive confusion around this subsection revolves largely around the application of the “unless” in (3)(b). Does the “unless” apply only to (3)(b)? If the language is limited in this way — which a plain reading of the statutory language clearly implies — then subsection (3) deems lawful all warrantless arrests for the purpose of criminal proceedings regardless of whether the arresting officer complied with the conditions in subsection (2). If we read the “unless” as applying to all of subsection (3), then the impact of the section is to provide a rebuttable presumption of lawfulness for the purpose of any legal proceeding. Most provincial appellate courts have adopted the former interpretation, while the Quebec Court of Appeal in Carignan adopted the latter (Carignan, para 12). This issue will constitute the crux of the Supreme Court appeal.

Issue

Did the trial judge err in law by “refusing to hold a voir dire on a motion that the arrest and detention without warrant were unlawful, and a violation of section 9 of the Charter, that compelled exclusion of the appellant’s” incriminating statement? (Carignan, para 8)

Decision

The Quebec Court of Appeal unanimously allowed the appeal on the basis that the trial judge’s summary refusal to conduct a voir dire to test Carignan’s challenge deprived him of the opportunity to establish that the police did not comply with the conditions in s495(2) (Carignan, para 20). The Court reached this conclusion by collapsing s495(3)(a) with (b) and interpreting this provision to guarantee a person arrested without warrant the opportunity to challenge the lawfulness of arrest: “Section 495(3) explicitly reserves to a person arrested without warrant the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (Carignan, para 18).

For the Court of Appeal, this provision, supported by the recent Supreme Court decision of R v Haevischer, 2023 SCC 11 (which affirmed that a voir dire may be summarily dismissed only if the advanced claims is “manifestly frivolous on its merits”), ensures that the arrested person has at least the opportunity to demonstrate that their claim is not manifestly frivolous (Carignan, para 19). By interpreting s495(3) as creating a rebuttable presumption for the purpose of any proceeding, the Quebec Court of Appeal effectively guarantees that a voir dire will be required whenever a defendant alleges that the arresting officers did not comply with the conditions in s495(2). That is because the Court’s reasoning requires that the accused have the opportunity to demonstrate whether their claim meets the Haevischer threshold to avoid summary dismissal.

Analysis

Subsections 495(2) and (3) are not exactly the finest examples of legislative drafting. The tortured double and triple negatives in subsection (2) are obscure, but the real trouble comes through the ambiguous interaction between (2) and (3). The ordinary and grammatical sense of subsection (3) restricts the application of the “unless” to (b). Thus, subsection (a) establishes a conclusive presumption of lawfulness for the purpose of criminal proceedings and (b) establishes a rebuttable presumption of lawfulness for civil and regulatory proceedings.

 While this interpretation accords with an ordinary reading of the statutory language, it provokes a thorny question: Why would Parliament include subsection (2) — a mandatory duty not to arrest except in the public interest and to ensure attendance in court — if it only applied in civil and regulatory proceedings? One of the acknowledged purposes behind s495 was the desire to “avoid unnecessary pre-trial arrest and detention” (House of Commons Debates, 28-3, vol 3 (5 February 1971) at 3116 (Hon John Turner)). It is unclear how limiting the arresting officer’s duty in subsection (2) to non-criminal proceedings furthers this objective. The majority of arrests occur pursuant to criminal authority, and only a small number of individuals whose rights are infringed are likely to bring civil actions.

The Quebec Court of Appeal’s decision addresses this problem but without any substantive analysis. Their reasoning is at best conclusory. Their collapse of (3) (a) and (b) resolves the purposive problem posed above, but the court provides no rationale for over-riding the plain language of the statute. Nor do they address the dominant trend among provincial appellate courts to adopt the opposite interpretation. The Alberta Court of Appeal decision in R v Veen, 2022 ABCA 350, for example, conducts a thorough survey of the legislative history that provides at least one account of Parliament’s intent in restricting the duty in subsection (2) to civil and regulatory proceedings (see e.g. paras 27-35). This history is no where to be found in the Quebec Court of Appeal’s decision.

Instead, with their brief decision, the Quebec Court has now provided the Supreme Court a welcome opportunity to rule on the scope of and relationship between 495(2) and (3) and provide crucial clarity on police powers of warrantless arrest.

This article was edited by Alexandre Cachon.