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| Patrick Ducharme |
Section 495 demonstrates that the powers of arrest for indictable offences and the powers of detention of an arrestee are appreciably greater than those same powers in relation to summary conviction offences.
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. [Emphasis added]
The less serious the offence under investigation, the more likely the arrestee will be released. This approach is mandated by subsection 495 (2) of the Code that provides:
495 (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. The law requires that police officers and citizens alike know in advance whether the particular offence investigated is considered to be indictable at the time of arrest.
Subsection 34(1)(a) of the Federal Interpretation Act provides that offences are deemed to be indictable offences even if they are Crown option offences, unless and until the prosecutor has made an election to proceed summarily.
Section 495 of the Criminal Code provides the authority to arrest without warrant “a person who has committed an indictable offence”. This requires the arresting officer to know that the arrestee has committed an indictable offence, although the officer need not have witnessed the indictable offence occurring. A police officer may arrest a person, on reasonable grounds, he believes has committed or is about to commit an indictable offence, if he believes on objectively reasonable grounds that an offence has been or is about to be committed. Even a subsequent acquittal does not necessarily establish that the accused was not “found committing” an indictable offence.
For a police officer to have reasonable grounds, his belief must take into account all the information available. The police officer is entitled to disregard only that which he has good reason to believe is not reliable. The police are entitled to rely upon hearsay information believed to be reliable.
Arrests within a dwelling house generally require additional authorization in the form of a warrant or the existence of exigent circumstances.
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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