This week’s top three summaries: R v Carignan, 2025 SCC 43: s.9 #arrest, R v Stuart, 2025 ABCA 404: #cross & s.276, R v Linklater, 2025 MBCA 104: #eye-witness ID

R v Carignan, 2025 SCC 43

[December 12, 2025] Charter s.9 – The Power to Arrest is Limited by s. 495(2) [Reasons by Côté J. with Wagner C.J., and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and M,  concurring]

AUTHOR’S NOTE: The police power of arrest is constrained not only by the requirement of reasonable grounds, but—for less serious offences listed in s. 495(2)(a)–(c) of the Criminal Code—by an additional statutory obligation. Before making an arrest, an officer must consider whether the objectives of establishing identity, securing or preserving evidence, and preventing the continuation or repetition of the offence can be achieved without arrest. An arrest is also permissible where the officer has reasonable grounds to believe the person will not attend court unless arrested.

Given how clearly this framework is set out in the Code, one might question why the issue required intervention by the Supreme Court of Canada. The answer lies in years of jurisprudential “gymnastics” by some lower courts, which had effectively confined the operation of s. 495(2) to questions of civil or criminal liability for police officers, rather than recognizing it as a substantive constraint on the legality of arrest itself.

The Supreme Court has now corrected course. In doing so, it reaffirmed that individual liberty interests lie at the core of s. 495(2) and that compliance with its requirements is a prerequisite to a lawful arrest—not an afterthought. As Parliament continues to explore new and inventive ways to expand incarceration, both pre- and post-conviction, this decision closes out 2025 with a meaningful reaffirmation of the right to be free from arbitrary detention—and another important tool for the defence bar.

I. Overview

[3] First, I interpret s. 495(2) Cr. C. to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. My analysis leads to the conclusion that this provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) Cr. C. is unlawful under the Criminal Code. This provision is not merely a guideline, a practice guide or a suggestion from Parliament. On the contrary, it obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) Cr. C. are met

[6] Section 495(2) Cr. C. is mandatory in nature and allows an accused to raise, under s. 9 of the Charter in the context of a voir dire, the unlawfulness and arbitrariness of an arrest that does not comply with this provision….

[7] The trial judge was required in this case to hold a voir dire to determine the lawfulness of the respondent’s arrest without warrant. The respondent’s motion was not manifestly frivolous, contrary to what was decided. The failure to hold a voir dire is a reviewable error of law that warrants a new trial.

[8] I would therefore dismiss the appeal and uphold the order for a new trial made by the Quebec Court of Appeal.

II. Background

A. Facts

[10] ….he was arrested without warrant inside his educational institution for the acts alleged against him.

[11] Following his arrest, peace officers took the respondent to the police station, where he was subjected to an interrogation that was recorded on video. During that interrogation, the respondent made an incriminating statement.

(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.

[25] It appears from the foregoing that s. 495(1)(a) Cr. C. gives a peace officer a power of arrest without warrant in three situations: where (1) a person has committed an indictable offence, (2) a person is about to commit an indictable offence, or (3) the peace officer believes on reasonable grounds that a person has committed an indictable offence. But the power so conferred is not absolute.

[26] This is because s. 495 Cr. C. also includes subss. (2) and (3). These provisions were described by both parties as limiting, circumscribing or restricting a peace officer’s discretion to make an arrest without warrant. The nature and scope of these provisions are precisely what I clarify in these reasons.

D. Principles of Statutory Interpretation

[56] In this case, the wording of the provisions to be interpreted concerning the power of arrest without warrant came into force nearly a decade before the enactment of the Charter, which introduced new safeguards in relation to arrest. In this context, it is important to remember that the statutory interpretation exercise is focused “on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent” (Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32 (emphasis added);….

[59] In general terms, s. 495(2) Cr. C. provides that a peace officer shall not arrest a person without warrant in certain circumstances, but only for a restricted number of offences. The scope of s. 495(2) Cr. C. is therefore limited — the provision applies only to hybrid offences and offences punishable on summary conviction, as well as to the indictable offences mentioned in s. 553 Cr. C. The offences referred to in s. 553 Cr. C. are indictable offences within the exclusive jurisdiction of a provincial court judge (e.g., theft (other than theft of cattle), betting, breach of a recognizance or failure to comply with a probation order). By operation of s. 34 of the Interpretation Act, R.S.C. 1985, c. I-21, s. 495(2)(b) and s. 495(2)(c) Cr. C. also apply to offences created by legislation other than the Criminal Code, including the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or other Acts of Parliament.

[60] Section 495(2) prevents a peace officer from making an arrest without warrant where two requirements are met. First, the peace officer must believe on reasonable grounds that the public interest may be satisfied without making an arrest without warrant (s. 495(2)(d)). Second, the peace officer must have no reasonable grounds to believe that, if he or she does not arrest the person without warrant, the person will fail to attend court (s. 495(2)(e))….

[61] I note, as the parties do, that s. 495(2) Cr. C. applies only when the two requirements set out in s. 495(2)(d) and (e) Cr. C. are met….

[63] I turn my attention now to the heart of the appellant’s argument with respect to s. 495(2) Cr. C. Does the text of this provision suggest that peace officers have a mandatory obligation to verify that the two requirements set out in s. 495(2)(d) and (e) Cr. C. are not met before making an arrest without warrant, or does it only constitute non-binding guidelines whose purpose is simply to delineate the exercise of their discretion?

[66] In short, the text of the provision suggests that, in practice, peace officers have an obligation, before making any arrest without warrant, to assess whether the public interest can be satisfied and the person’s attendance in court ensured in some other way. This would therefore mean that peace officers should refrain from making such an arrest where they believe on reasonable grounds that these two conditions are met.

(a) Relationship Between Section 495(1) and Section 495(2) Cr. C.

[68] In legislative drafting, it is common practice to begin by formulating a general rule and then to clarify or narrow the rule by means of more specific provisions. In such cases, the general rule and the specific rules must be read together: the specific rules qualify the general rule stated first and reveal its true scope in a particular situation (Côté and Devinat, at paras. 1074 et seq.).

[69] This is precisely the logic underlying the relationship between s. 495(1) and s. 495(2) Cr. C. Section 495(2) Cr. C. does not create a freestanding power of arrest without warrant….

….Section 495(2) Cr. C. must therefore be understood as a provision that serves to limit the scope of the general power of arrest provided for in s. 495(1) Cr. C. when certain requirements are met.

(c) Conclusion on the Context of Section 495(2) Cr. C.

[74] In summary, an analysis of the context of s. 495(1), (2) and (3) Cr. C. reveals a coherent legislative structure in which each provision plays a complementary role. Section 495(1) Cr. C. creates a power of arrest without warrant, while s. 495(2) Cr. C. strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) Cr. C. confirms the normative character of s. 495(2) Cr. C. by setting out protective mechanisms in the event of non-compliance.

[78] Even though Parliament, as part of its legislative reform, equipped peace officers with new tools to avoid resorting to arrest — such as the possibility of issuing an appearance notice — its intention and the legislative objective were not to leave their discretion intact, but rather to limit it. In keeping with the stated objective of reducing unnecessary arrests without warrant,….

(5) Conclusion on the Interpretation of Section 495(2) Cr. C.

[82] I therefore find that an analysis of the text, context and purpose of s. 495(2) Cr. C. leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) Cr. C. are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) Cr. C. where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.[Emphasis by PJM]

[83] It follows from the above that an arrest contrary to s. 495(2) Cr. C. is unlawful because it is contrary to this law, which suffices to characterize said arrest as arbitrary within the meaning of s. 9 of the Charter. Indeed, since the enactment of the Charter in 1982, this Court has had occasion to state that an unlawful arrest or detention, including one not authorized by law, is necessarily an arbitrary arrest or detention and infringes s. 9 of the Charter (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 21-22; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124).[Emphasis by PJM]

[84] Since I am of the view that an arrest contrary to the law established by s. 495(2) Cr. C. results in this arrest made in violation of binding norms being unlawful, this is sufficient to characterize such an arrest as arbitrary within the meaning of s. 9 of the Charter. The question that now remains is whether the effect of s. 495(3) Cr. C. is to shield such an arrest from being found unlawful and thus arbitrary under s. 9 of the Charter, such that it would be manifestly frivolous to conduct a voir dire to determine, in a criminal proceeding (such as the trial of the respondent in this case), the lawfulness of a police arrest — as the trial judge held.

[90] Section 495(3) Cr. C. therefore does not apply in the criminal trial of the person arrested without warrant. Nor does it apply where a Charter motion is brought in the course of such a criminal trial. It follows that accused persons can assert in their own criminal trial that their arrest without warrant, which they believe to be contrary to s. 495(2) Cr. C., constitutes an infringement of the Charter.[Emphasis by PJM]

[130] ….s. 495 Cr. C. does not create any presumption with respect to the lawfulness of the arrest without warrant itself. The lawfulness of the arrest can always be challenged, even in a criminal proceeding like the trial of the respondent in this case.

(4) Conclusion on the Interpretation of Section 495(3) Cr. C

[137] From this perspective, s. 495(3)(a) Cr. C. provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) Cr. C., it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) Cr. C. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) Cr. C. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof.

G. Application to the Facts

[140] In light of the above interpretation, I would dismiss the appeal and uphold the order that the respondent be given a new trial….

[141] Section 495(3) Cr. C. creates a presumption of lawfulness applicable to the conduct of a peace officer who has made an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C. Section 495(3)(b) provides, however, for the possibility of rebutting this presumption in a proceeding not brought under the Criminal Code or any other Act of Parliament, where the person alleging the unlawfulness of the peace officer’s conduct establishes that the officer did not comply with the requirements of s. 495(2) Cr. C. The Court of Appeal’s error was in finding that the possibility of rebutting the presumption of lawfulness applied in a proceeding under the Criminal Code or another Act of Parliament contemplated by s. 495(3)(a), which distorted its entire interpretation.[Emphasis by PJM]

[142] Thus, by stating that in this case s. 495(3) Cr. C. guaranteed the respondent “the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (C.A. reasons, at para. 18), the Court of Appeal erred, because in the context of determining the criminal liability of the respondent in this case — and not that of the peace officer — there was no presumption of lawfulness that applied.[Emphasis by PJM]

[144] In summary, since the criminal proceeding brought against the respondent — specifically a charge for sexual assault — does not fall within either of the paragraphs of s. 495(3), the Quebec Court of Appeal could not base its analysis on this provision. That being said, I am of the view that this error by the Court of Appeal is not determinative. In this case, it is rather the trial judge’s refusal to hold the voir dire requested by the respondent that constitutes a reviewable error.

V. Conclusion

[147] For these reasons, I would dismiss the appeal and uphold the order for a new trial made by the Court of Appeal.

R v Stuart, 2025 ABCA 404

[December 5, 2025] Limitations on Section 276 and the Importance of Cross-Examination [Ritu Khullar C.J., and Dawn Pentelechuk and Anne Kirker JJ.A.] 

AUTHOR’S NOTE: Questions directed at the importance of preserving a past romantic relationship do not amount to inquiries into sexual history and therefore do not engage the restrictions in s. 276 of the Criminal Code. There is no statutory basis for limiting such questioning.

In this decision, the Alberta Court of Appeal reaffirmed the central role of cross-examination in criminal trials and drew a clear boundary against unwarranted judicial intervention in proper questioning of complainants. The ruling serves as an important reminder that s. 276 must not be expanded beyond its intended scope to impede legitimate credibility testing.

I. Introduction

[1] The appellant appeals his convictions by a judge alone of sexual assault contrary to s 271 of the Criminal Code and criminal harassment contrary to s 264(1). He raises two issues: whether the trial judge improperly restricted cross-examination of the complainant and whether the reasons for the criminal harassment conviction were sufficient.

[6] During cross-examination, defence counsel put it to the complainant that she fabricated the allegation of sexual assault because she wanted to reconcile with her ex-partner:

Is it fair to say, ma’am, that you were concerned about having sex with Ryan and that it was going to interfere or harm your chances to get back with your ex?

[7] The Crown objected, arguing that the question implied that the complainant had a previous sexual relationship with her ex-partner and triggered the s 276 regime governing admission of other sexual activity evidence. Defence counsel disagreed:

Sir, I – I’m not speaking about whether or not she’s had a sexual history. All we’re suggesting was that she feels that by having sex with the gentleman, that she hurt her opportunity to go back with her ex-boyfriend.

[8] After discussion, the trial judge concluded that the question did imply a past sexual relationship with the ex-partner:

The implication, though, is that the sexual nature of the relationship as you wish to imply, the sexual nature of the relationship with [the appellant], would interfere with her ability to re-establish what must be presumed to be a sexual relationship with another individual from whom she’s been estranged (emphasis added).

The trial judge stated that the question skirted “very close to the line of 276” and “probably crosses the line”.

[9] Because the trial judge concluded the question probably engaged s 276, he instructed defence counsel to reword it to avoid reference to the complainant’s previous relationship. He instructed an open-ended question suggesting defence counsel ask the complainant – “Did you change your opinion of the sexual interaction for any motivation or any reason?” Defence counsel complied. Predictably, the complainant answered “No”

[11] The trial judge gave oral reasons convicting the appellant. He found the complainant’s testimony credible and reliable and that it proved the sexual assault beyond a reasonable doubt.

IV. Analysis

A. Restriction of cross-examination

[19] The legal background to this ground of appeal is s 276 of the Code. That section applies when a party seeks to adduce evidence that the complainant has engaged in sexual activity other than the sexual activity that is the subject of the charge: s 276(2). Such evidence is inadmissible unless the party adducing it makes a written application, a voir dire is held, and the trial judge rules it admissible based on the factors in s 276(2) and (3).

[22]…. Although the trial judge articulated his decision vaguely1, defence counsel had no realistic option but to treat it as a ruling prohibiting the question. The trial judge prohibited the question because, in his view, it engaged s 276, but the required procedure was not followed. A trial judge is the ultimate gatekeeper in determining whether or not s 276 is engaged, and if so, whether the proposed evidence is admissible. The obligation to make correct evidentiary rulings is not satisfied by a suggested compromise in the name of trial management.[Emphasis by PJM]

[23] The key issue is whether the motive-to-fabricate question implied that the complainant and her former partner had engaged in sexual activity. The question put to the complainant was:

Is it fair to say, ma’am, that you were concerned about having sex with Ryan and that it was going to interfere or harm your chances to get back with your ex?

In our view, the brief reference to “getting back with your ex” did not imply a prior sexual relationship.[Emphasis by PJM]

[24] First, the question’s relevance did not depend on an unstated sexual relationship. It went to credibility because it suggested that the complainant had a reason to fabricate the sexual assault. The motive, as explained by defence counsel, was the complainant’s desire to reconcile with her ex-partner and her belief that he would be unwilling if he knew she had consensual sex with another person. The motive assumed a prior relationship, but not a sexual one.

[25] There was no basis for the trial judge’s insistence that the relationship mentioned in the question “must be presumed to be a sexual relationship.” Neither the relevance of the question nor the intelligibility of the motive required that assumption.

[26] Second, recent case law confirms that generic evidence of a complainant’s past relationship does not necessarily imply previous sexual activity.

[27] In R v Goldfinch, 2019 SCC 38, the Supreme Court found that evidence that the accused and the complainant had been “friends with benefits” implied prior sexual activity and engaged s 276. The majority and the concurring reasons contrasted that evidence with generic evidence of a past relationship. The majority noted that “a relationship may provide relevant context quite apart from any sexual activity”: Goldfinch at para 57. The concurring judges indicated, without finally deciding, that “general evidence of categories of relationships” − such as marriage or dating −“would not, without more” engage s 276 because it is not evidence that the complainant has engaged in sexual activity: Goldfinch at para 104.

[28] A similar point appears in the dissent in R v Langan, 2019 BCCA 467. The dissenting judge held that a text message referring to the accused and the complainant “being together” in the past did not imply a sexual relationship because the evidence was brief, unspecific and “may or may not” have referred to past sexual activity: Langan at para 124. The Supreme Court allowed the appeal substantially for the reasons of the dissenting judge: R v Langan, 2020 SCC 33.

[30] Cross-examination of Crown witnesses is central to the right to make full answer and defence: R v RV, 2019 SCC 41 at paras 39, 86. It includes the right to advance the defence theory through cross-examination on a good faith basis: ?RV at para 39; R v Lyttle, 2004 SCC 5 at paras 46- 47.

[31] Here, the trial judge restricted cross-examination in two ways. He limited the way it could be conducted by directing counsel to ask an open-ended question rather than a leading one. He also limited the scope of the cross-examination. The question defence counsel was allowed to ask – “Did you change your opinion of the sexual interaction for any motivation or any reason?” – made no reference to the complainant having a motive to fabricate the sexual assault. Asking it did nothing to advance the defence theory.

[32] The restriction on cross-examination effectively gutted the motive-to-fabricate defence. Defence counsel ultimately abandoned the argument partly because the restriction left it without an evidentiary foundation.

[33] We allow the appeal on the sexual assault conviction.

V. Conclusion

[40] We allow the appeal, set aside both convictions, and order a new trial.