Ontario Court of Justice

Date: September 30, 2024

In the matter of Precious Ahamarene and an application by PC Rocheleau of the Windsor Police Service made on 29 September 2024 for a remand in custody of the accused pursuant to section 503 of the Criminal Code

Justice of the Peace A. Renaud

Reasons for Judgment: September 30, 2024

In Chambers

A. Renaud J.P.:

[1] I reviewed this application at 8:30 a.m. on 29 September 2024. At that time, I issued written reasons, via e-mail, for declining the application. The matter was brought to my attention in court at the end of the court day and I again put on record my reasons for declining the application. I have been informed by court staff that police/Crown is requesting once again that this matter be put on my docket to be addressed. I am providing this written decision only for purposes of explaining why I decline to do so.

[2] The application clearly sets out that Windsor police knew that a warrant existed for the arrest of the accused, Precious Ahamarene. The warrant was issued in the Province of Manitoba. On September 26, 2024, Windsor police sought, and were granted, an order by Justice of the Peace Karpouzos pursuant to section 523 of the Criminal Code to execute the warrant in Ontario.

[3] The copy of the warrant submitted with the application, as well as the statement made regarding the arrest of the accused, show that the warrant was executed by PC Rocheleau, on September 28, 2024 in accordance with the authorization obtained on September 26, 2024.

[4] Given that the accused was arrested pursuant to the endorsement made on September 26, 2024, the provisions of section 528 of the Criminal Code apply:

[5] Subsection 528(2) clearly sets out that peace officers who execute the warrant are to take the accused before the justice who issued the warrant or one in the same territorial jurisdiction. In this case, as the warrant was issued out of Manitoba, the accused is to be taken there.

[6] Section 503 of the Criminal Code, under which the application was made, applies only to arrests made without a warrant. Section 503(3):

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice

Re-evaluation of detention

At any time before the expiry of the time referred to in paragraph (1)(a) or (b), a peace officer who is satisfied that the continued detention of the person in custody for an offence that is not listed in section 469 is no longer necessary shall release the person, if

(a) the peace officer issues an appearance notice to the person; or

(b) the person gives an undertaking to the peace officer.

Person delivered or in custody

(2) Subsections (1) and (1.1) also apply to a peace officer to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the Customs Act, except that the 24-hour period referred to in paragraphs (1)(a) and (b) begins after the person is delivered to the officer.

(2.1) [Repealed, 2019, c. 25, s. 217]

(2.2) [Repealed, 2019, c. 25, s. 217]

(2.3) [Repealed, 2019, c. 25, s. 217]

Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

Interim release

(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released

(a) without conditions; or

(b) on the terms of a release order containing any conditions referred to in paragraphs 515(2)(a) to (e) that the justice considers desirable and to which the prosecutor consents.

Release of person about to commit indictable offence

(4) A peace officer having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person as soon as practicable after the officer is satisfied that the continued detention of that person is no longer necessary in order to prevent that person from committing an indictable offence.

Consequences of non-release

(5) Despite subsection (4), a peace officer having the custody of a person referred to in that subsection who does not release the person before the expiry of the time prescribed in paragraph (1)(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in those proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (4).

[7] This information was provided to the officer prior to court opening on September 29, 2024. The Crown in the court asked that I address the matter as she had been informed that the accused was arrested without warrant. I explained to her that this information contradicted everything I had been provided with as part of the application (see excerpt below).

[8] It also contradicted the information on the warrant that was submitted as part of the application. See excerpt below.

[9] I pointed this out to the Crown in court, who then resiled from her position that the arrest had been made without warrant.

[10] In a bid to stave off further issues, I also provided the Crown with case law, R. v. Charles, 2012 SKCA 34. Although a Saskatchewan decision dealing with unlawful search and seizure, it clearly outlines how police forces deal with what are commonly referred to as Canada-wide warrants.

[11] In the instant case, the Ontario warrant to arrest the respondent was issued by a justice of the peace in Ontario. Thus, not having been issued by a superior court, in accordance with both s. 514 and s. 703, it could be executed only in Ontario unless it was endorsed in another province pursuant to s. 528. Endorsement pursuant to s. 528 would authorize either the Ontario or the Saskatchewan police officers to arrest the accused in Saskatchewan and also to transport him back to Ontario to face the Ontario charges. The Ontario police officers who brought the warrant to Saskatchewan had apparently prepared to effect this endorsement, for attached to it was Form 28, and an affidavit by Ontario Police Cst. Nancy Vanrooy attesting to the signature of the issuing justice of the peace, all as required by s. 528. However, the endorsement had never been obtained.

[12] The trial judge concluded that the warrant was therefore ineffective in Saskatchewan and that the Saskatchewan officers had been misled in believing it to be a “Canada-wide warrant”. He further concluded that, as the arresting officers had admittedly relied on the warrant in effecting the arrest of the respondent, the arrest was unlawful. As the arrest was unlawful, the ensuing search could not be justified as a warrantless search incident to arrest and it was therefore unreasonable. Thus, the trial judge found a breach of the rights of the respondent pursuant to sections 8 and 9 of the Charter. Following a brief analysis of s. 24(2), he excluded the evidence of the semi-automatic pistol found in the respondent’s vehicle. Evidence from the voir dire, apart from the excluded evidence, was applied at the trial, the respondent called no evidence and the respondent was acquitted of the charges.

[13] The Crown argues that the trial judge misunderstood the way in which extra-territorial warrants are normally executed in Canada and, as a result, misconstrued the evidence of the arresting officers. The phrase “Canada-wide warrant” is not a phrase actually used in the Criminal Code. Rather, the Crown contends, it is a phrase regularly used by police officers to indicate, not that the warrant has been issued by a superior court judge and can therefore be executed anywhere in Canada without further endorsement (an occurrence that would actually be quite rare), but, rather, that if an accused named in the warrant is arrested in another jurisdiction, the issuing province or territory is willing to bear the expense of transporting the accused back to that jurisdiction to face trial. Without that willingness, the warrant cannot be fully executed in another jurisdiction, for there would be no way to bring the accused before the judges of the jurisdiction where the warrant was issued, as is required by s. 514 of the Code. Accordingly, it is argued, where police learn that an accused in their own territorial jurisdiction is subject to a “Canada-wide” warrant from another jurisdiction, relating to an indictable offence, they will often rely on the fact of the warrant and any other information provided to effect a warrantless arrest pursuant to s. 495(1) of the Criminal Code on reasonable and probable grounds that the accused has committed the offence or offences detailed in the warrant. The accused is then taken before a judge in the arresting jurisdiction pursuant to s. 503(3) to await formal endorsement of the writ permitting his or her return to the issuing jurisdiction. If the extra-territorial warrant is not known to be “Canada-wide” in this sense, officers will normally not affect the arrest because they would not be in a position to return the accused to the issuing jurisdiction, even if they did have reasonable and probable grounds to believe that he or she had committed the offences detailed in the warrant.

[14] Had the endorsement under s 528 not been obtained, then the order sought to remand the accused might be issued. However, as it had been obtained and officers did execute the warrant, s. 528 now provides that the accused must be brought before a Manitoba court.

[15] For these reasons, the application pursuant to section 503 to remand the accused to await execution of a warrant (which has already been executed), is denied.

Signed “A. Renaud” Justice of the Peace in and for the Province of Ontario

In chambers

September 30, 2024 at the City of Windsor