ONTARIO COURT OF JUSTICE
INFORMATION NUMBER: 998 24 47103956
BETWEEN:
HIS MAJESTY THE KING
— AND —
ARIJETA NIKOCEVIC
Before Justice M.K. WENDL
Heard on April 10 and July 8, 2026
Judgement dated July 22, 2026
J. SZODA Counsel for Crown
J. CHROLAVICIUS…………………………………….… ……Counsel for A. Nikocevic
WENDL J.:
1Arijeta Nikocevic is charged with assault with the intent to resist arrest contrary to section 270 (1) (b) of the Criminal Code.
2The evidence in this trial was uncontroverted. The Court heard from one witness, the arresting officer, Officer Cadet-Herchenroder.
3Officer Cadet-Herchenroder testified that he received a dispatch call directing him to attend the Tim Hortons located at 239 King Street West. Upon arrival, he met with the complainant, Tim Hortons security guard Mr. Kabir Mehndiratta. Mr. Mehndiratta advised the officer that an unknown female was harassing customers, had refused to leave the restaurant, and had attempted to hit and kick him. Mr. Mehndiratta identified the accused as the person responsible by pointing her out as she was leaving the scene.
4When Officer Cadet-Herchenroder approached Ms. Nikocevic, she refused to stop. The officer then placed his hands on her and attempted to arrest her. Ms. Nikocevic clearly resisted arrest. A struggle ensued, during which Ms. Nikocevic bit the officer.
5The entire interaction was captured on video and played at trial. The video corroborated Officer Cadet-Herchenroder’s testimony. It is clear from the uncontroverted evidence and the video that the offence of assault with the intent to resist arrest was made out subject to the legal arguments raised by the defence that the arrest was unlawful.
6The defence raised a Charter argument, I pause to note here the Charter motion was filed late at the end of trial, submitting that the arrest was unlawful because it did not comply with s. 495(2) of the Criminal Code. Section 495 (1) and (2) state:
Arrest without warrant by peace officer
495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
(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.
7The Supreme Court of Canada recently interpreted that provision in R. v. Carignan, holding:
An analysis of the text, context and purpose of s. 495(2) of the Criminal Code 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.1
8It appears from defence counsel’s cross-examination that Officer Cadet-Herchenroder was not specifically aware of the requirements of s. 495(2). Defence counsel asked, “Do you know your limits to arrest a person without a warrant?” The officer responded, “I arrested her on reasonable and probable grounds.” Defence counsel then asked, “Are you aware of any limits?” The officer again replied, “I arrested her on the reasonable and probable grounds afforded to me from the victim. That is the best I can answer.”
9However, after considering the evidence and applying the statutory criteria, I am not satisfied that the arrest contravened s. 495(2) of the Criminal Code.
10In the circumstances of this case, I find that it was clearly in the public interest for Officer Cadet-Herchenroder to arrest Ms. Nikocevic pursuant to s. 495(2)(d)(i) and (iii) of the Criminal Code, namely, to establish her identity (because she was not stopping) and to prevent the continuation or repetition of the offence (she was clearly in an agitated state). I also find that because Ms. Nikocevic was leaving the scene Cadet-Herchenroder had reasonable grounds to believe that absent arrest, she might fail to attend court.
11The Court is able to conclude that an arrest was appropriate under s. 495(2)(d) and (e) even without direct evidence from the arresting officer specifically addressing those statutory factors. In R. v. Cayer (1988), 66 C.R. (3d) 19 (Ont. C.A.), the Ontario Court of Appeal considered the lawfulness of four arrests under the predecessor provision, then s. 450(2). Although the officers in those cases did not testify that they considered alternatives to arrest, the Court nevertheless concluded:
In each of the four appeals it was, in fact, not unreasonable in the public interest to arrest the accused to prevent the continuation or repetition of the offence. Even if it could be said in any of the cases that there was some breach of s. 450(2) (which we are far from holding), the arrests of the accused, in the circumstances, were neither capricious, despotic nor unjustifiable, and hence the accused were not arbitrarily detained or imprisoned.
12While the officer did not expressly refer to the factors set out in s. 495(2), the legality of the arrest must be assessed in light of the objective circumstances confronting him at the time. Those circumstances included a recent report that the accused had committed an offence, her refusal to stop when approached by police, her failure to comply with the officer’s directions, and the officer’s inability to ascertain her identity if she were permitted to leave. Viewed objectively, these circumstances satisfied the requirements of s. 495(2).
13Put simply, even in the absence of evidence from Officer Cadet-Herchenroder specifically addressing s. 495(2), it cannot be concluded that the arrest contravened that provision. The arrest of Ms. Nikocevic was justified in the public interest, both to establish her identity and to ensure her attendance before the court. Had the officer not arrested her she simply would have walked away and Officer Cadet-Herchenroder would have been unable to identify her or compel her participation in the criminal process. Such a result would undermine the administration of justice. Acceptance of the accused’s position would effectively mean that a person suspected of committing an offence could evade the ordinary consequences of the criminal law simply by refusing to engage with police and walking away. Parliament cannot have intended s. 495(2) to produce such an absurd result.
14Having considered the evidence and the requirements of s. 495(2) of the Criminal Code, I am not satisfied that the arrest was unlawful. In my view, the Crown has established that the arrest complied with ss. 495(2)(d) and (e). The officer was entitled to arrest Ms. Nikocevic in order to ascertain her identity and to ensure her attendance before the court because he had reasonable grounds to believe she would not attend. Accordingly, there was no breach of s. 495(2), the detention was not arbitrary, and Ms. Nikocevic's rights under s. 9 of the Charter were not infringed.
15Therefore, I find her guilty of assault with the intent to resist arrest contrary to section 270 (1) (b).
Released: July 22, 2026
Signed: Justice M.K. Wendl
Footnotes
- R. v. Carignan, 2025 SCC 43 at para. 82