Daphné Godin-Garito

The accused was arrested without warrant days after an alleged sexual assault and made an incriminating videotaped statement during police interrogation.

At trial, the judge refused to hold a voir dire on the lawfulness of the arrest under s. 495(2) of the Criminal Code, concluding that s. 495(3) deemed the arrest lawful so long as s. 495(1) grounds existed.

The Supreme Court held that s. 495(2) imposes mandatory limits on warrantless arrest powers and that an arrest contrary to those limits may be unlawful and arbitrary under s. 9 of the Charter.

Section 495(3) only protects peace officers from liability in proceedings against them and does not bar an accused from challenging the legality of the arrest in their own criminal trial.

The refusal to hold a voir dire was an error of law requiring a new trial.

The Crown appealed from the Quebec Court of Appeal's decision remitting the respondents' files to the Court of Québec for preliminary inquiries.

The respondents were each charged with historical sexual offences against a child which carried a maximum of 10 years' imprisonment at the time of commission, but for which the maximum was later increased to 14 years.

Before charges were laid, each respondent appeared in court and reserved their election as to mode of trial; neither requested a preliminary inquiry until after the 2019 amendment to s. 535 of the Criminal Code came into force, restricting preliminary inquiries to accused persons charged with offences punishable by 14 years or more.

A five-judge majority dismissed the appeal, albeit by different routes: Côté and Rowe JJ. held the right vested at the time charges were laid; Kasirer J. (Jamal J. concurring) held the right vested when the accused reserved their election as to mode of trial with the court's approval; and Martin J. held the date of the offence governs temporal application.

The four-judge dissent (Karakatsanis J., Wagner C.J., O'Bonsawin and Moreau JJ.) would have allowed the appeal, concluding the right vests only when a request for a preliminary inquiry is made, and that the new rule applies where no such request was made before it came into force.

On the interpretive question, Côté and Rowe JJ. held that the 14-year threshold in the new s. 535 is tied to the seriousness of the offence and not to the accused's personal maximum jeopardy, while Karakatsanis J. and Martin J. held the accused must personally face a maximum of 14 years.