s. 495 CRIMINAL CODE
s. 495(1)(a) Criminal Code
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s. 495(1)(b) Criminal Code
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What the Criminal Code says:
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"s. 495. (1) A peace officer may arrest without warrant ... (b) a person whom he finds committing a criminal offence."
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What the courts say this means:
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"An officer may only arrest an individual for an offence under ss. (b) where the officer personally witnesses facts or events that can support an objectively reasonable belief that the suspect is presently committing an offence. As the Crown notes in its factum, the circumstances supporting the arrest must 'be apparent to the peace officer at the time the arrest was made'." (R. v. MacCannell, 2014 BCCA 254 at para. 21)
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"When an arrest has been made pursuant to s. 495(1)(b) of the Criminal Code the Crown must establish that the arresting officer had reasonable grounds to believe the person arrested was committing a criminal offence in the officer’s presence." (R. v. Lotfy, 2017 BCCA 418 at para. 33)
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"A two-part test is applied in determining the validity of a warrantless arrest. In the context of s. 495(1)(b) the first stage involves factual determinations: (a) whether the arresting officer subjectively believed the person arrested was committing a criminal offence in the officer’s presence; and (b) the grounds for such belief, i.e., the factual matrix that informed the officer’s decision." (R. v. Lotfy, 2017 BCCA 418 at para. 34)
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“A peace officer exercising the arrest power [under s. 495(1)(b)] must provide some sensible reason for believing an offence was being committed by the person arrested.” (R. v. Boyd, 2013 BCCA 19 at para. 6)
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"[B]efore invoking this power the arresting officer must have reasonable grounds to believe that the person to be arrested is apparently in the process of committing a crime in his or her presence." (R. v. Corbett, 2008 BCCA 54 at para. 52)
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"[Section 495(1)(b) of the Criminal Code], unlike s. 495(1)(a) does not, in terms, require that the officer have reasonable grounds to believe that a person has committed an indictable offence. What is required is that the officer personally observe facts or events that can support a reasonably grounded belief that a person is presently committing the offence. Depending on the circumstances, an odour of fresh or raw, as opposed to burnt or smoked, marijuana, on its own, may be sufficient to ground an arrest under s. 495(1)(b)." (R. v. Gonzales, 2017 ONCA 543 at para. 103)
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"The essence of s. 495(1)(b) is the requirement that the arresting officer has personally witnessed the facts that provide the basis for the arrest. The section requires both that the officer hold a subjective belief that an offence is being committed and that the grounds for that belief are objectively reasonable." (R. v. Acosta, 2014 BCCA 218 at para. 12)
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"[I]n my view an arresting officer must establish three things in order to meet the finds committing standard. Firstly, the police officer’s knowledge must be contemporaneous to the event. Thus he or she must be present while the apparent offence is taking place. In other words, unlike the reasonable and probable grounds standard, it is not enough to believe that an offence has taken place in the past or is about to take place.
Secondly, the officer must actually observe or detect the commission of the offence. Most often this is achieved by actually seeing and/or hearing the offence being committed. However, I would not limit it to those two senses. In fact, as in this case, the sense of smell may suffice. ...
Thirdly, there must be an objective basis for the officer’s conclusion that an offence is being committed. In other words, as the Supreme Court noted in Roberge, supra, “it must be ‘apparent’ to a reasonable person placed in the circumstances of the arresting officer at the time”." (R. v. S.T.P., 2009 NSCA 86 at paras. 20-22, references omitted)
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"Section 495(1)(b) covers those situations where a peace officer actually finds someone in the process of committing an apparent criminal offence." (R. v. Klimchuck (1991), 67 CCC (3d) 385 (BCCA))