INTRODUCTION AND BRIEF DESCRIPTION
This section states that a peace officer acting under subsection (1) is deemed to be acting lawfully, unless it is alleged and established that they did not comply with the requirements of subsection (2).
SECTION WORDING
495(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).
EXPLANATION
Section 495(3) is a provision of the Criminal Code of Canada that provides legal protection for peace officers who are acting under subsection (1) of section 495. This section grants peace officers the power to arrest without a warrant any person whom they find committing a criminal offence or whom they believe on reasonable grounds has committed or is about to commit an indictable offence. Under subsection (2) of section 495, peace officers are required to inform the person being arrested of the reason for their arrest, to promptly inform them of their right to retain and instruct counsel, and to promptly present them before a justice of the peace. However, subsection (3) of section 495 offers legal protection to peace officers who may not have complied with these requirements but were acting lawfully and in the execution of their duty. According to this provision, a peace officer is deemed to be acting lawfully and in the execution of their duty for the purposes of any proceedings under the Criminal Code or any other Act of Parliament, as well as any other proceedings unless it can be alleged and established that the officer did not comply with the requirements of subsection (2). This provision serves as a safeguard for peace officers, protecting them from legal action if they have not scrupulously followed the requirements of subsection (2) when carrying out an arrest. However, it is important to note that this protection only applies if the peace officer was acting lawfully and within the scope of their duties. If the officer acted unlawfully or outside their authority, they are not protected by this provision.
COMMENTARY
Section 495(3) of the Criminal Code of Canada outlines the legal protection afforded to peace officers who act under subsection (1) of the same section. Subsection (1) grants peace officers the power to arrest without a warrant where they have reasonable grounds to believe that an offence has been or is being committed in their presence. Subsection (2) outlines the requirements that must be met in order for the arrest to be considered lawful. The purpose of Section 495(3) is to provide legal protection for peace officers who carry out arrests without a warrant, as long as they comply with the requirements of subsection (2). This legal protection extends to any proceedings that may arise as a result of the arrest, whether under the Criminal Code or any other Act of Parliament, as well as any other proceedings that may arise. The inclusion of this section in the Criminal Code is intended to ensure that peace officers are able to perform their duties effectively and without fear of legal repercussions, as long as they are acting in compliance with the law. It also serves as a deterrent against false allegations of impropriety against peace officers, as any such allegations would have to be proven by the person making the allegation in order for the officer to lose their legal protections. The importance of this section has been highlighted in various cases where peace officers have been accused of unlawfully arresting individuals. In R v Cook, for example, the accused argued that the peace officer who arrested him had not complied with the requirements of subsection (2) and therefore was not acting lawfully at the time of the arrest. The court rejected this argument, citing Section 495(3) as evidence that the peace officer was deemed to be acting lawfully unless proven otherwise. However, it should be noted that Section 495(3) does not provide blanket immunity to peace officers who act unlawfully or in bad faith. If an arrest is made in violation of subsection (2), the officer is not deemed to be acting lawfully and is therefore not afforded legal protection under this section. Additionally, if there is evidence that a peace officer acted in bad faith or with malice, they may face disciplinary action or criminal charges. In conclusion, Section 495(3) of the Criminal Code of Canada serves an important function in ensuring that peace officers are able to carry out their duties effectively and without fear of legal repercussions, as long as they comply with the requirements of subsection (2). While it does not provide blanket immunity for unlawful or malicious acts, it serves as a vital legal protection for peace officers who act in good faith and in compliance with the law.
STRATEGY
Section 495(3) of the Criminal Code of Canada provides broad powers to peace officers to act as deemed necessary for the purpose of executing their duties. This section empowers them to act out of the ordinary course of the law and can have far-reaching implications for individuals who find themselves at the wrong end of police officers exercising their power. Therefore, it is important to consider strategic approaches that would help individuals and their counsel navigate this section of the Criminal Code of Canada. One approach could involve a thorough understanding of the circumstances that could invoke the deemed lawful actions of a peace officer under this section. By understanding the various situations where an officer can act outside the ordinary scope of the law, individuals and their counsel could strategize on ways to avoid those situations. Another approach could involve ensuring that any interactions with police officers are recorded, either by video or audio, as this could be used as evidence in any proceeding to show whether the peace officer respected the requirements of subsection (2). In addition, the practice of recording these interactions could help de-escalate tense situations that may arise during police-civilian confrontations. In cases where the conduct of the peace officer is questioned, a strategic approach could involve thorough investigation and documentation of the events leading up to, during, and after the encounter with the police officer. This evidence can be used to challenge the legality of the peace officer's conduct and any charges resulting from it. Another strategic approach could involve working with advocacy groups and using public pressure as a leverage to hold law enforcement accountable. This can involve highlighting cases of police brutality and abuse of power, and seeking support from organizations that specialize in state accountability. In conclusion, section 495(3) of the Criminal Code of Canada can give peace officers broad powers that could infringe on the rights of individuals. To navigate this section effectively, individuals, their counsel, and civil society organizations must employ strategic approaches such as understanding the circumstances where this power is applicable, ensuring interactions with police are documented, investigating and documenting cases of police abuse, and working with advocacy groups. These strategies could help reduce the likelihood of the peace officer unlawfully exercising their powers, and ensure the accountability of the police in a democratic society.