Unless caught in the act Police cannot arrest without a warrant unless dealing with specifically indictable offences

 Unless you are caught by Police in the Criminal Code action, Police must not arrest any man or women without a warrant for arrest, again, unless dealing with specifically indictable offences

The Police may not arrest a person without a arrest warrant, unless they the Police are dealing in the moment, with reasonable and probable grounds for arresting without a arrest warrant for the commission of an indictable offence, a situation where a person is found committing a criminal offence or where there is an outstanding arrest warrant of committal to be enforced.

 Section 495 of the Criminal Code, contains three subsections. The first part deals with the circumstances under which a peace officer may arrest without a arrest warrant. These are the very serious charges or any charge where the person is caught in the act. The second part states when a peace officer shall not arrest without a arrest warrant. Again, this assumes that the person was not caught committing an offence by the officer. Included here are over 20 specific indictable offences such as theft, deceit, possession, mischief, gaming, betting, driving while disqualified, breach of a recognizance and failure to comply with a probation order to name a few. A peace officer cannot arrest without a arrest warrant for the hybrid offences which can be prosecuted by indictment or summary conviction nor can the officer, without a arrest warrant, arrest persons to be charged with committing a summary conviction offence

Dealing with a prohibition under s.495(2) against arrest without a warrant where the alleged offences committed were hybrid or summary conviction offences, the Police may not arrest without a warrant. Unless The police are in hot pursuit of a suspect, or there is evidence of exigent circumstances, or the suspect was found committing an offence, the Police Force have reasonable and probable grounds to believe that a supect had committed an indictable offence and there the Police had reasonable grounds to believe that the suspect had to be arrested in the public interest to establish identity, secure or preserve evidence or prevent the continuation or repetition of the offence or the commission of another offence, THERE IS NO POWERS OF ARREST. In fact, under s.495(2) it is the duty of the police not to arrest a person without a arrest warrant for certain types of offences unless the offender comes within subsection (d) and (e) of s. 495(2). The opening words of the subsection are clear "a peace officer shall not arrest a person without warrant for ...". It is not a discretion, it is a duty not to arrest without a arrest warrant.

   Section 495 of the Criminal Code prescribes the powers of arrest of a police officer without a warrant. Under s.495, and subject to certain exceptions which I will deal with shortly, there is no authority for a police officer to arrest a person committing a summary conviction offence without a warrant unless the officer finds that person in the act of committing the offence. The same restriction on arrest without a warrant applies to a hybrid offence under which the prosecution has the option to proceed by way of indictment or summary conviction against a person.

If one is unlawfully arrested without a warrant, it follows that any demands placed on a suspect or accused  under threat of incarceration would be improperly made. In arresting a suspect  without a warrant, the police would offended s.495(2) of the Criminal Code of Canada and breached a suspects rights under s.7, security of the person and s.9, the right to be free from arbitrary detention and imprisonment.

Reference:

R. v. Dobrotic, 1997 CanLII 9564 (NB CA), <http://canlii.ca/t/1l742>