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| Patrick Ducharme |
Section 494 of the Code prescribes the powers all persons have, including police officers, to make an arrest of a person without an arrest warrant. Subsection (2) was recently amended to permit an arrest without a warrant if the person making the arrest either finds the person committing a criminal offense in relation to or on that property provided the arrest is made at a time when the person is found committing the offense, or, “within a reasonable time after the offense is committed, and, it is believed on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Subsection 494(1) provides:
Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
Subsection 494(2) provides:
The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Police officers have the powers prescribed in section 495 to arrest anyone without a warrant. Citizens are limited to making an arrest without a warrant when a person is found committing an indictable offence, or, when a person is believed to have committed a criminal offence, and is escaping from and being freshly pursued by the authorities.
Powers of Arrest by the Police without Warrant 495
Section 495 extends to police officers additional grounds of arrest without a warrant. A police officer may, without warrant, arrest a person who has committed an indictable offence, or, is believed, on reasonable grounds, to have committed an indictable offence, or, a person found committing a criminal offence, or, a person the police officer has reasonable grounds to believe is the subject of a warrant in force in the territorial jurisdiction where the person is found.
The term “finds committing” in section 494 of the Code was historically narrowly defined. Binnie J. in R. v. Asante-Mensah3 suggested that “the concept of ‘arrest’ by private citizens is as old as the common law”, and “survives under s. 494 of the Criminal Code.” The phrase “finds committing”, as found in subsection 494(1)(a), had historically connoted the situation where the arresting person discovered someone in the very act of committing an offence. Before a citizen could make an arrest, he or she had to have reasonable grounds to believe that the person was apparently in the process of committing an indictable offence in his or her presence.
This interpretation was supported by the shared meaning of “finds committing” in both the English and French versions of the Code and other federal statutes, which authorized warrantless arrests. Therefore, the accused could not justify the arrest on the basis that the perceived perpetrator was found committing the offence of possession of stolen property, as he did not come upon him in possession of the rifle. Now, at least with respect to owners or persons in lawful possession of property, the notion of finding someone committing an offence includes an arrest “within a reasonable time after the offense is committed,” and, a belief on reasonable grounds that “it is not feasible in the circumstances for a peace officer to make the arrest.”
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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