La Couronne supporte toujours le fardeau de justifier d'une arrestation sans mandat

R v S (WEQ), 2018 MBCA 106 

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[14]                     When an accused challenges the validity of a warrantless arrest, the burden is on the Crown to show that the arrest was made in accordance with section 495(1) of the Code.

[15]                     Section 495(1) of the Code states as follows:

 

Arrest without warrant by peace officer

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.

 

[16]                     In The Queen v Biron, 1975 CanLII 13 (SCC), [1976] 2 SCR 56, Martland J, for the majority of the Supreme Court of Canada, considered sections 495(1)(a) and (b) (then sections 450(1)(a) and (b)), and stated (at pp 71-72):

 

Paragraph (a) of s. 450(1) permits a peace officer to arrest without a warrant:

 

(a)  a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,

 

This paragraph, limited in its application to indictable offences, deals with the situation in which an offence has already been committed or is expected to be committed.  The peace officer is not present at its commission.  He may have to rely upon information received from others.  The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds.

 

Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed.  His power to arrest is based upon his own observation.  Because it is based on his own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.

 

[17]                     Subsequent appellate case law has added to and clarified the statements made in Biron.  For example, in Regina v Stevens (1976), 1976 CanLII 1411 (NS CA), 33 CCC (2d) 429 (NSSC (AD)), MacDonald JA, for the Court, considered Biron and stated (at p 434):

 

The requirement of reasonable and probable grounds relates only to arrest without warrant in indictable offences (s. 450(1)(a)) [now s. 495(1)(a)] not to summary conviction offences such as creating a disturbance.  In order to arrest a person without a warrant for a summary conviction offence it is not sufficient for the arresting officer to show that he had reasonable and probable grounds to believe such offence had been, or was about to be, committed; rather, he must go further and show that he found a situation in which a person was apparently committing an offence.