Police Officer's Powers of Arrest and Release

Last updated: 2025-06-28

General Principles

 Everyone has the right not to be arbitrarily detained or imprisoned. Charter s.9.

The Criminal Code protects the liberty of suspects.  For all but the most serious offences, the law discourages you from arresting offenders.  If you do arrest, the law encourages you release suspects with the least restrictions necessary.  However, when you have reasonable grounds to believe that someone committed an offence, section 495 of the Criminal Code authorizes you to arrest people. For hybrid and summary conviction offences, you may only you may arrest suspects in order to:

1. establish the identity of the suspect,
2. secure or preserve evidence of or relating to the offence,
3. prevent the continuation or repetition of the offence,
4. prevent the commission of another offence,
5. ensure the suspect will attend court.

You may arrest a person who has breached a conditional sentence order. s.742.6(1)(b).  Unless the breach was very minor, you shouldn't release someone who breached a conditional sentence.  s.742.6(2).

If you do impose conditions on a suspect which protect victims or witnesses, complete and submit a Protection Order Registry form.

If you do not release the prisoner, s. 503 requires you to bring him or her before a JP without unreasonable delay, and in any case within 24 hours.  (Dumont 2005 BCPC 204)

But within that time, if your investigation is continuing expeditiously, you are not obliged to interrupt it.  R. v. Storrey 1990 SCC; Tate 2002 BCCA 189; Viszlai, 2012 BCCA 442; Viszlai, 2015 BCCA 495.

It does not appear to be an abuse of process to arrest a suspect, and then release without conditions or charges. R. v. Orr, 2021 BCCA 42

Arrest

Warrantless Arrest for an Offence

Indictable & Hybrid - Arrest on reasonable grounds

Peace officers's powers of arrest without warrant are described in s.495 of the Criminal Code.  Section 495(1) causes little difficulty.  If you have reasonable grounds to believe that a suspect committed a hybrid or indictable offence, you can arrest. s.495(1)(a).

Summary Conviction - "Finds committing"

To arrest for a summary conviction offence, you must find the suspect committing it.

Courts differ whether you must actually see the offence occurring, or merely have reasonable grounds to believe that it is occurring at the time you deal with the suspect.  In Janvier, 2007 SKCA 147, the court says you must actually observe the offence; but in S.T.P., 2009 NSCA 86, and Boyd, 2013 BCCA 19 the courts found that you may draw reasonable inferences from your observations to conclude that the person "is committing" an offence. 

"RICE" - Shall not arrest except in the public interest

But section 495(2) causes problems: when shouldn't an officer arrest for a hybrid or summary offence?

Section 495(2) applies only to Absolute Jurisdiction, Hybrid, and Summary Conviction offences.  It does not apply to the straight indictable offences. 

Section 495(2) refers to what a police officer knows at the time of arrest.  If the officer believes that identity, evidence and the continued peace are secure[1], then the officer should not arrest.  If the officer is in doubt[2] about these things, it appears that the officer may still arrest[3], though some cases suggest that the officer should investigate first and arrest later[4].

Attendance at court is slightly different.  If the officer has no information, or mere suspicion that the suspect is a bad risk to attend court, the officer must not arrest.  To rely on this ground, the officer must already have reasonable grounds for concern.

To summarize: the officer may arrest if unsure of identity, evidence or future peace, and arrest would assist in solving these problems.[5]  However, the officer needs reasonable grounds to believe offender won’t attend court if the officer decides to arrest for that purpose.

Breach of the Peace

Section 31 of the Criminal Coce provides you with the power to arrest for "breach of the peace".  Use this power sparingly.  You can only arrest people for the conduct you see them committing.  Although you, (and civilians s.30) can interfere to stop a breach of the peace, the history of this concept limits it.  You can't arrest someone under this section just because they're being difficult, or may commit an offence.  Lefebvre (1984 BCCA); Bergstrom, 2007 BCSC 1990.  You need to believe that if you don't arrest the person, s/he will harm someone or damage someone's property.  C.E., 2009 NSSC 6.

You can't arrest people for breach of the peace who are merely suspicious.  Nor can you confront such people, and then arrest them for breach of the peace when they object to your interference. Januska (1996 Ont S.C.) Khatchadorian (1998 BCCA).

If you do arrest someone under this power, there is no substantive offence on which they can be released on terms.

The "RICE" principles don't apply. Because there is no offence, you can't search the person for evidence of the offence for which you have arrested. Because there won't be charges you can't arrest for the purposes of releasing for court. I'm not sure that you can compel the person to identify themselves, because the only need for obtaining their identity is to bring them to court. But if you have concern for your safety, then I'm pretty sure that you can search them for weapons that they might use to harm you. Cloutier v. Langlois, 1990 CanLII 122.

Causing a Disturbance s.175(1) Criminal Code

This offence trips confuses officers often because it is narrower than it appears.  The elements are:

• the suspect is in, or near, a public place
• but not in a dwelling-house
• the suspect is "fighting, screaming, shouting, swearing, singing, using insulting or obscene language, being drunk or impeding or molesting other persons"
• other people nearby are disturbed by this.
  

The problem usually falls on the interpretation of "disturbed".

The "disturbance" must be more than a fleeting event. Penton, 2022 NLCA 47. Loud and raucus behaviour doesn't disturb anyone if everyone is being loud and raucus. Swinkels, 2010 ONCA 742. If a group of people go out to the street to watch two people fight, none of the group is "disturbed" because none of them interfered with the activities of the others: the fighters are fighting, and the observers wanted to watch. B.(J.G.V.), 2002 NSCA 65.

As police officers responding to a complaint, you are not "disturbed". Swinkels, 2010 ONCA 742.  Even if the suspect aggravates a tense situation by swearing at you, he does not cause a disturbance.  Kukemueller, 2014 ONCA 295

The other problem is that it's a summary conviction offence. You can only arrest the suspect if you find him or her committing it.

You can arrest someone for causing a disturbance only if:

• someone has complained about your suspect making their lives difficult, and you can see he's still carrying on, or
• you can see that other people in the area are so bothered by his conduct that it interrupts their activities.
  

If however, you are dealing with an unrelated matter, and the suspect interferes with your work by doing the things mentioned above, you can be disturbed.  (You might also be obstructed.)

Obstructing or Resisting a Peace Officer

You can't arrest people for being rude or disrespectful to you.  Their actions must actually interfere with a specific job you are doing.  It's not enough that you are merely at work.  Noel, 1995 CanLII 1105 (BC C.A.).

Only when a suspect has an obligation to identify himself or herself, for example when being released to attend court, refusal to do so is obstruction.  Moore, [1979] 1 S.C.R. 195; Lawrence, 2005 BCSC 255.

Otherwise, when you detain a suspect, the suspect has no obligation to tell you who they are.  Guthrie, 1982 ABCA 201

If you enter property without permission, and are asked to leave, you (generally) become a trespasser.  You aren't in the execution of your duty if you're breaking the law.  Plamondon, 1997 BCCA.  (Of course, exigent circumstances may justify your attendance even if the resident asks you to leave.  Stenning, [1970] S.C.R. 631)

Drunk in a Public Place

Police often arrest a person for being "drunk in a public place" under provincial legislation.  (In B.C., it's s.47 of the Liquor Control and Licencing Act).  However, the legislation does not authorize you to arrest every drunk in public, but only those drunks who are a menace to themselves, others, or to property.

In some provinces, the legislation limits those arrests to situations where the person is a danger to himself or others or is causing a disturbance.

In the other provinces, the common law sets the same limits.  eg R. v. Wallace (1998), 59 C.R.R. (2d) 153 (B.C.S.C).

If you find a drunk person in a private place, such as a car, and tell him to get out into a public place, you can't now arrest him for DIPP. Guray, 2015 BCCA 183

If you arrest a person for any offence, (particularly impaired driving), you can imprison him only for so long as you think he's a danger to himself or others. This doesn't require constant monitoring, but does require case-by-case consideration of how long that will take. Hardy, 2015 MBCA 51. You can't "hold till sober"; but if the reason for arrest was intoxication, then you can "hold till safe" to release.

Breach of Disposition - Mental Disorder

When a mental disorder causes a person to commit an offence, the Review Board or a court may impose a "disposition" on the person.  These are orders designed to keep the person from relapsing into a dangerous mental disorder.

A peace officer who finds someone who has, or is about to, violate a term of a disposition order may arrest the person.  s.672.91

After such an arrest, you must either:

• take the person to a place identified in the disposition order and release him or her on a summons or PTA; s.672.92(1) or
• take the person before a justice. s.672.92(2)

"Canada-wide" Warrants

Although superior courts can issue arrest warrants which can be executed anywhere in Canada, most warrants are issued by provincial court judges and JPs.  Those warrants can only be executed in the province where they were issued, unless a justice in another province authorizes it. s.528.

If you know that authorities in another province will return a suspect there, you can:

1. Arrest the suspect without warrant in your province, and then get an endorsement on the warrant.  However, you need grounds to make a warrantless arrest. That means informing yourself about the evidence against the suspect. R. v. Charles 2012 SKCA 34 Or:
2. Get the warrant endorsed by a local JP, and then execute it.

Either way, you must bring the suspect before a justice.  s.503(1)

If you arrested first, you can ask the justice for up to 6 days to get the warrant endorsed.  s.503(3)

Detention

Detention differs from arrest.  You need reasonable and probable grounds to believe that the suspect committed an offence in order to arrest.  But if you have a reason, beyond mere hunch, to suspect a person of involvement in criminal activity, you may detain the person for a short time to investigate further.

Dedman (1985 SCC)  Wilson (1990 SCC) Ladouceur (1990 SCC) Hufsky (1988 SCC)  Cooper (2005 NSCA)

A warrant to search a residence is not an authority to arrest the occupants.  Crampton v. Walton 2005 ABCA 81.

However, you should control the scene by detaining the people you find in the residence, for the purposes of protecting yourselves and preventing damage to or destruction of evidence.

Police Release

Sections 496 to 503 oblige officers to release suspects with the least restrictions of liberty necessary under the circumstances.  This includes releasing with the intention to summons later.  See table.

Police Imposed Conditions

Sections 499 and 503 permit police officers and officers in charge to release suspects on undertakings and recognizances with specific conditions.  The two sections provide the same list of conditions.  Case law says you have an obligation to consider releasing any prisoner you can using this procedure.  Rashid 2010 ONCA 591.

For those conditions to remain in force, an information must be sworn before the date of the first appearance.[6]  The undertaking lasts until the charges are resolved by conviction, acquittal or stay, or the court changes them. (See Form 11.1)

Although that list of conditions can address many risks, they do not grant peace officers blanket authority to impose any condition necessary.  The most commonly misunderstood condition is the one addressed to witness and victim safety.  It does not permit conditions to protect potential future victims. 

Factors which justify more restrictive forms of release and more restrictive conditions are:

• the need to identify the accused
• the need to preserve evidence
• the risk that the offender will commit more offences
• the risk that the offender may jeopardize the safety of victims and witnesses
• the risk that the offender will intimidate witnesses.
• the need to ensure the offender will return to court.

If no combination of the conditions will suffice to address these issues, then the accused must be brought before a justice for a bail hearing under s.515.  The justice may impose more restrictive conditions, using more restrictive release documents such as recognizance's with cash or surety, or the justice may detain the accused pending trial.

Swear the Information "As Soon As Practicable"

If you release a suspect on a promise to appear, appearance notice or recognizance before an officer in charge, then you must swear an information "as soon as practicable".  s.505  Failure to do so means the accused doesn't have to attend court.  Oliveira, 2009 ONCA 219.

Ordinarily, you want suspects to obey the terms of s.11.1 undertakings.  Even if you are a bit slow swearing one, but swear it before the promise to appear date, then the undertaking still binds the suspect.  Oliveira, 2009 ONCA 219.  But those undertakings expire on the PTA date if nobody swears an information before then.  Killaly, 2010 BCPC 138.

Unendorsed Warrants and Indictable Offences

Can a police officer release a prisoners charged with a straight indictable offence such as robbery, or arrested on unendorsed warrants?  Although there is some debate about the issue, the answer appears to be yes.  R. v. L. (M.C.), 2005 ONCJ 124; R. v. Monkman, 2005 YKTC 19.

Under s.503(2), you have a discretion to release such a prisoner, but only if you are satisfied that the prisoner "should be released".

Fingerprints

Some case law in B.C. suggests that you cannot fingerprint people until charges are laid.  (Click here for more discussion.)  Section 501(3) authorizes you to release a suspect on a promise to appear or recognizance, to provide fingerprints later, when the charge is sworn.  It's an offence under s.145(5) for the accused not to appear.

Forms of Police Release

The law requires you to choose the least restrictive form of release that you consider appropriate.  If, however, you have reasonable grounds to believe that a form of release fails to:

• establish the identity of the person,
• secure or preserve evidence,
• prevent the commission of more offences,
• protect the victims or witnesses, or
• ensure the attendance of the person to court

then you must move to a more restrictive form of release.  If no form of release available to you will suffice, then you must bring the offender before a justice.

If the offender was arrested for fear that they will commit an offence, then you must take the offender before a justice within 24 hours, or so soon as practicable.  S.503(4).  If there is an ongoing risk that the person will commit an offence, but has committed none so far, proceed with a peace bond application under s.810 or 810.1.  If the risk remains high, seek very restrictive conditions, such as 24-hour curfew to be reviewed weekly by the court.  It may be time to stake out your subject’s house.

Process	Offence	Type of Arrest	Residence of Accused	Authority
Release with intention to summons later. 497(1)(a)	(hybrid, abs jur, summary) or ? 5 years	Not arrested or Arrested w/o warrant	Anywhere	Peace officer s.497(1)(a) OIC s.498(1)(a)
Appearance Notice	(hybrid, abs jur, summary) or ? 5 years	Not arrested or Arrested w/o warrant	Anywhere	Peace officer s.496 s.497(1)(b)
Promise To Appear [youth] Without conditions	All offences* in province	Arrested with or without warrant	Anywhere	OIC or another officer s.498(b)
Promise To Appear [youth] With UTA conditions** [youth]	All offences*in province	Arrested with or without warrant	Anywhere	OIC s.499(2)
Recognizance before OIC [youth] No deposit no conditions	(hybrid, abs jur, summary) or ? 5 years	Arrested without warrant	In the province and less than 200 km from here.	OIC or another officer s.498(1)(c)
Recognizance before OIC [youth] Up to $500 cash deposit no conditions	(hybrid, abs jur, summary) or ? 5 years	Arrested without warrant	Outside province or more than 200 km from here.	OIC or another officer s.498(1)(d)
Recognizance before OIC [youth] No deposit, Specified conditions**	All offences*	Arrested with or without warrant	In the province and less than 200 km from here.	OIC s.499(2)(b) Peace officer or OIC 503(2)
Recognizance before OIC [youth] Up to $500 cash deposit With UTA conditions**[youth]	All offences*	Arrested with or without warrant	Outside province or more than 200km from here.	OIC s.499(2)(c) Peace officer or OIC 503(2)
Bail hearing	All offences*	Any arrest	Anywhere	JJP s.515

 

*"All Offences" Exceptions:

People arrested without warrant for an indictable offence committed outside the local jurisdiction must be taken before a Justice.  S.503(3).

Offences committed outside the province are outside your jurisdiction.  You cannot serve them any document.  If the offence was indictable, however, you may seek a 6-day remand (s.503(3)) for police in another province to transport the accused
 

 Only a Supreme Court Judge may release people charged with the following offences:

47	Treason	61	Sedition
49	Alarming Her Majesty	74	Piracy
51	Intimidating Parliament	75	Piratical Acts
53	Inciting Mutiny	235	Murder

 

**Conditions

Sections 499and 503list the same set of conditions available to a peace officer.  Do not add conditions beyond what are found in this list; the courts won't enforce them.

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person's passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; and

(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.[6]

Classes of Offences

Absolute Jurisdiction offences are offences which proceed in Provincial Courtregardless whether the Crown proceeds summarily or by indictment.  None of them carry a penalty of more than 2 years’ punishment.

A summary conviction offence is tried in Provincial Court.  Neither the Crown nor the Defence have any option to proceed in any other way.  These offences usually carry a maximum punishment of 6 months.

Hybrid offences can be prosecuted summarily or by indictment, at the Crown’s option.

Absolute Jurisdiction 334 theft under $5,000 354 possession stolen property under $5,000 362(2)(b) false pretences under $5,000 380(1)(b) fraud under  $5,000 393 Fare fraud 733.1 Breach probation 811 Breach peace bond 201(1) gaming house 203 bookies 210(1) common bawdy house

Summary Conviction 66 Unlawful Assembly 83 Prize Fight 89 Weapon at public meeting 173(1) Indecent Act 175 Cause Disturbance 177 Trespass by Night 335 Take Auto without Consent 372 Indecent or Harassing Telephone Calls 446 Cruelty to Animals   CDSA 4(1) Possession of a controlled substance   All offences under Provincial statutes.

Hybrid Offences 57(2)    False statement for passport 72        Forcible Entry 86        Firearms – careless storage 87        Firarms – pointing 88        Possession of Weapon for a Dangerous purpose 90        Carry concealed weapon 91        Firearms – unauthorized possession 93        Firearm – possession in an unauthorized place 94        Firearm – possession in motor vehicle 95        Firearm – possession of restricted firearm 96        Firearm – possession of stolen firearm 97        Cross-bow transfer 101      Firearms – transfer 102      Firearms – making an automatic 104      Firearms – importing and exporting 105      Firearms – failing to report stolen guns 106      Firearms – failing to report destruction of 107      Firearms – false reports 108      Firearms – serial number offences 117.01 Firearms – possession while prohibited 129      Obstruct peace officer 130      Personating a Peace Officer 139(1)  Obstruct justice – Recognizances 140      Public Mischief 145      Escape lawful custody / breach UTA or Recog 151      Sexual interference 152      Invitation to sexual touching 153      Sexual Exploitation 159      Anal Intercourse 160      Bestiality 163      Corrupting morals 163      Child pornography 173(2) Exposure to a child under 16 168      Mailing obscenity 215      Failing to provide necessaries of life 249      Dangerous driving (no injury) 252      Fail to stop at accident 253      Impaired (no injury) 254      Refusal 259      Drive while prohibited 264      Criminal Harassment 264.1   Threat death/bodily harm 266      Assault 267      Assault w/ weapon or causing bodily harm 269      Unlawfully causing bodily harm 270      Assault peace officer 271      Sexual assault 279(2)  Forcible confinement 282      Abduction contrary to custody order 283      Abduction where no custody order 342      Credit card: stolen/forged 342.1   Unauthorized use of computer 347      Criminal Interest rate 348      B&E non-residential 349      Being unlawfully in a dwelling house 366      Forgery 368      Utter forged document 403      Personation 430(5)  Mischief to data 430(5.1) Mischief endangering life 437      False alarm 462.31 Laundering proceeds of crime

 

---