Schrager, Healy, Bachand

Appeal from conviction. Allowed; a new trial is ordered.

The trial judge found the appellant guilty of sexual assault after summarily refusing to hold a voir dire on a motion that the arrest and detention without warrant were unlawful. The judge ruled that the motion had no reasonable chance of success and was without merit. The appellant argues that the judge erred in refusing to hold a voir dire and that the authority to arrest and detain without warrant is lawful only if the three conditions in sections 495 (1) and 495 (2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) are satisfied.

The purpose of section 495 Cr. C. is to minimise the incidence of arrest without warrant with reference to criteria of necessity. Section 495(3) nevertheless recognizes that it is often not possible for the police to judge whether arrest and detention without warrant is necessary at the time when that decision is taken.

Section 495(1) Cr. C. authorises arrest without warrant if a police officer has reasonable and probable grounds to believe that a person has committed, or is about to commit, an indictable offence. Section 495(2) stipulates that this authority shall not be exercised except in the public interest and to ensure attendance in court. If these limitations are not observed, section 495(3) deems the exercise of this power nevertheless lawful unless the person arrested without warrant alleges and establishes that the peace officer did not comply with these requirements.

Section 495(3) reserves to a person arrested without warrant the opportunity to challenge the lawfulness of the arrest upon allegation and proof. A decision to deny a voir dire deprives the arrested person of this opportunity. A judge might conclude in such a voir dire that the claim is manifestly frivolous, or otherwise without merit, but this conclusion cannot be reached without first conducting a hearing in the absence of the trier of fact. A judge therefore cannot summarily refuse to conduct a voir dire on the ground that it would be manifestly frivolous to do so unless the applicant is first given the opportunity to demonstrate that the motion is not manifestly frivolous. To allow a decision of that kind would condone a peremptory decision to deprive an arrested person of the opportunity to allege and establish that the conditions of section 495(2) were not satisfied and would nullify the plain meaning of section 495(3).

These observations are consistent with R. v. Haevischer (S.C. Can., 2023-04-28), 2023 SCC 11, SOQUIJ AZ-51932923, 2023EXP-1077, which does not allow summary dismissal of the opportunity to conduct a voir dire and categorically precludes summary dismissal when this opportunity is expressly acknowledged in a provision such as section 495(3).

In this case, the appellant's application was not manifestly frivolous. There was no apparent basis on which to believe that the public interest or the risk of non-attendance in court justified the arrest without warrant of the applicant eleven days after the alleged offence. The judge’s summary refusal to conduct a voir dire deprived the appellant of the opportunity to allege and establish non-compliance that is guaranteed by the plain terms of section 495(3).

Legislation interpreted: section 495 Cr. C.

Text of the decision: http://citoyens.soquij.qc.ca