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What is Considered an Unlawful Arrest in Canada?

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When Brantford Police arrested Ontario Provincial Police (OPP) Inspector June Dobson for fraud over $5,000 and breach of trust, it made national news because the fraud was connected to memorabilia owned by Canadian hockey icon Wayne Gretzky. Dobson’s arrest occurred during a joint OPP-RCMP—Brantford Police Services investigation into more than $500,000 worth of stolen Gretzky memorabilia, but the charges were not connected to the theft.

However, the Crown ended up withdrawing the charges because the arrest warrant relied primarily on statements made by Wayne Gretsky’s father, who was cognitively impaired and subsequently asserted that Inspector Dobson had not committed the alleged fraud. As a result, Inspector Dobson has filed a $6 millionHome lawsuit against the Brantford Police Services for unlawful arrest, alleging that the investigation was “negligent,” “woefully inadequate,” and that the arrest was made “without reasonable and probable grounds.”

With extensive criminal defence experience in the Greater Toronto Area, the Mass Tsang legal team will tell you that the police can make mistakes and sometimes prove negligent in ensuring their investigations and arrests are lawful. While “lack of reasonable grounds” is one constituent of an unlawful arrest, other factors can also make an arrest unlawful. Let’s further explore the issue in context with Canadian Law

Lawful Arrest Parameters Under the Criminal Code

The Canadian Criminal Code guides police and the Crown in making lawful arrests, while the Canadian Charter of Rights and Freedoms, combined with court precedents, helps protect people from unlawful arrests. Police can arrest alleged offenders with or without a warrant. Section 495 (1) of the Code allows police to arrest people without a warrant if:

  • A person has committed an indictable offence, or who the officer — “on reasonable grounds” — believes has committed or is about to commit an indictable offence.
  • Anyone they find in the process of committing a criminal offence.
  • A person who the officer — “on reasonable grounds” — believes is under a warrant for arrest or committal.

The second part of this section lays out limitations on the police’s warrantless arrest authority. For example, police cannot arrest someone for a summary conviction offence unless they believe — “on reasonable grounds” — that the person will fail to attend court if issued a summons. Subsequent sections of the Code contain provisions detailing the processing, further detainment, and release of those arrested without a warrant.

Arrests made by warrant are detailed under several sections of the Code, depending on the underlying circumstances relating to the offence and disposition within the legal system. In General, Section 493 defines the legal meaning of a warrant, while Sections 511-514 cover the issuance and execution of a warrant. As with warrantless arrests, a warrant must be based on “reasonable grounds” that evidence shows that the alleged offender may have committed the offence. Likewise, police must follow specific procedures for processing, detaining, and releasing those arrested under a warrant.

You might be pleased to learn that the Code gives you the authority to make a warrantless arrest. Section 494 of the Criminal Code allows private citizens to legally arrest suspects they find committing an offence or fleeing from police.

Charter Rights Protections for Those Arrested

If police fail to follow correct arrest procedures laid out in the Criminal Code, they can run afoul of the Canadian Charter of Rights and Freedoms, which could make an arrest unlawful. We emphasize “could” because procedural errors do not necessarily invalidate the legality of an arrest or constitute a Charter Rights breach. Instead, an unlawful arrest is typically based on la ack of legal justification and/or a complete violation of a Charter Right.

The two critical Charter Rights that affect the lawfulness of an arrest are Sections 9 and 10. Section 9 gives everyone “the right not to be arbitrarily detained or imprisoned.” The key word in this Charter Right is “arbitrarily.” As repeatedly asserted in the Criminal Code, the reasons for an arrest must be based on “reasonable grounds.” The absence of reasonable grounds thus makes an arrest arbitrary and a breach of the Section 9 Charter Right.

The Canadian Supreme Court clarified the unlawfulness of such arbitrary arrests in its R v. Storrey [1990] 1 SCR 241 decision, which held reasonable and probable grounds must subjectively support an arrest. And must be further “justifiable from an objective point of view.” The court elaborated by noting that “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.”

Returning to the case of Brantford Police Inspector Dobson, we assume that she will argue that her arrest was unlawful because statements from a cognitively challenged witness did not constitute reasonable and probable grounds for her arrest. The investigating officers also failed to interview others involved with the alleged fraud who would have been able to refute the witness’s statements. Those assessments certainly led to her release and withdrawal of charges—whether it warrants $6 million in damages will be left to civil court.

Turning to Section 10 of the Charter, everyone who has been arrested or detained has the right to:

  • Be promptly informed of the reasons.
  • Be allowed to contact and consult legal counsel without delay and be informed of this right.
  • Have the “validity of the detention be determined by way of habeas corpus (judicial review) and to be released if the detention is not lawful.”

These rights are immutable, and police failure to abide by them represents an unlawful arrest that can lead courts to drop the charges. If you spend hours in custody without being informed why or of your right to consult with counsel, tell your defence lawyer as soon as you’ve managed to retain one. Likewise, if it takes more than 24 hours to undergo a judicial review or bail hearing.

Contact Mass Tsang if You Believe Your Arrest Was Unlawful

If you believe that police unlawfully arrested you in the Greater Toronto Area, consult with the experienced criminal defence lawyers of Mass Tsang. We are intimately familiar with all nuances of Canadian criminal law and have a decades-long track record of strategizing effective defences that secure favourable pre-trial solutions and positive outcomes at trial. For all your criminal defence needs in the GTA, contact us for a free consultation.



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