The Queen v. Biron, [1976] 2 SCR 56

SUPREME COURT OF CANADA

The Queen v. Biron, [1976] 2 S.C.R. 56

Date: 1975-03-07

Her Majesty The Queen Appellant; and

Jacques Biron Respondent.

1974: October 9; 1975: March 7.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, PROVINCE OF QUEBEC

Criminal law—Arrest—Resisting a peace officer in the execution of his duty—Acquittal for breach of the peace does not make arrest unlawful—Resistance an offence—Criminal Code, ss. 25, 31, 449(1)(b), 450(1)(b); Police Act, S.Q. 1968, e. 17, s. 54,

Respondent was arrested in a restaurant during a raid. He had been drinking and refused to co-operate with the police, verbally abusing them and refusing to give his name. The constable who arrested him handed him over to Constable Gauthier, who took him to a police car for questioning. He was then taken by Constable Dorion to a police wagon. Respondent resisted arrest and a scuffle with Constable Dorion ensued. Biron was charged with (1) causing a disturbance in or near a public place by shouting in a restaurant, contrary to s. 171(a)(1) of the Criminal Code, and (2) resisting a peace officer in the execution of his duty, contrary to s. 118(a). Biron was convicted of both offences in the Municipal Court. He was acquitted of the first offence in a trial de novo. He was also acquitted of the second offence in the Quebec Court of Appeal. The Crown was granted leave to appeal the second acquittal. The ques­tion at issue is whether the charge of resisting a peace officer in the execution of his duty must fail because of the acquittal on the offence of causing a disturbance. Respondent claims that his arrest was not lawful because the right to arrest him for a summary convic­tion offence had to be based on s. 450(1)(b) of the Criminal Code.

Held (Laskin C.J. and Spence and Dickson JJ. dis­senting): The appeal should be allowed.

Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: The validity of an arrest under s. 450(1)(b) of the Criminal Code must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made. The power of arrest

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which that paragraph gives has to be exercised prompt­ly, yet it is impossible to say that an offence has been committed until the party arrested has been found guilty by the courts. The wording of this paragraph means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.

The arrest of Biron was lawful, and, consequently, his resistance to Dorion constituted an offence.

During the raid, it was Dorion's duty to take custody of persons who might be arrested by police officers in the building. In taking Biron into custody, he was carrying out the duty which had been given to him as a police officer by s. 54 of the Police Act, S.Q. 1968, c. 17. Furthermore, s. 31(2) of the Criminal Code provides that Dorion was justified in receiving Biron into custody since, as a part of the police force conducting the raid, he reasonably believed that Gauthier, who turned Biron over to him, had witnessed a breach of the peace,

Per de Grandpré J.: An arrest is a specific act, clearly limited as to time, which cannot be broken down into several stages. Once the arrest is made, the concept of arrest ceases to apply, and a new concept, that of custody, becomes applicable.

Per Laskin C.J. and Spence and Dickson JJ., dissent­ing: At the time and place of the arrest, no offence under s. 171(1)(b) of the Criminal Code had been committed and the arrest therefor was, qua the accused, unlawful. The protection of the constable by s. 25 did not make the arrest lawful qua the accused. Furthermore, our law has not deprived the citizen of his right to resist unlawful arrest. His resistance may be at his own risk if the arrest proves to be lawful. Section 31 is not an arrest power, but a protection for the person or persons making an arrest, just as is s. 25. It is limited to protection in respect of an arrest for breach of the peace. By no stretch of the imagination can s. 31 be turned into a general power of arrest or justification in respect of any criminal offence on the theory that all offences under the Criminal Code constitute breaches of the peace. Finally, it is simply a "bootstrap" argument to contend that resistance to Dorion became unlawful because he, Dorion, was justified in taking custody of the accused following his arrest.

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[Attorney General for Saskatchewan v. Pritchard, (1961), 34 W.W.R. 458; Wiltshire v. Barrett, [1965] 2 All E.R. 271, referred to.]

APPEAL from a judgment of the Court of Queen's Bench, Province of Quebec, allowing an appeal from a conviction. Appeal allowed, Laskin C.J. and Spence and Dickson JJ. dissenting.

J. Allard and G. Denis for the appellant.

S. Ménard and Christine Truesdell for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—It is of cen­tral importance in this Crown appeal to appreciate how this case got to this Court and what were the issues that brought it here. The accused, having been convicted on a charge of resisting a peace officer, one Dorion, in the execution of his duty at a certain place on a certain date, successfully appealed his conviction and was acquitted by the Quebec Court of Appeal, Deschênes J.A. (as he then was) dissenting. If the dissent was on a question of law, the Crown had an appeal as of right under s. 621(1)(a) of the Criminal Code. The Crown, however, sought leave to appeal, indicating it wished to raise for the first time the applicability of s. 31(2) of the Criminal Code. Leave was granted without limitation, but on con­dition of the Crown paying the costs of the appeal in any event. Even the unrestricted leave could not of course enlarge the scope of the appeal beyond questions of law, as s. 621(1)(b) makes abundantly clear.

The issues in this appeal have a background that must be explained. The accused was charged with two offences following a raid by the police on certain restaurant premises in which he was arrested. The arrest was made by Constable Maisonneuve, and another constable, one Gauthier, led

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the accused to a police car for interrogation. Then he was taken to a police wagon by Constable Dorion, who had a grip on the accused, and by another constable. The accused offered resistance, causing Dorion to fall, but the accused also fell, sustaining severe facial injuries. The two charges laid against the accused were (1) causing a dis­turbance in or near a public place by shouting in the restaurant, contrary to what is now s. 171(1) (a)(i) of the Criminal Code; and (2) resist­ing a peace officer, Dorion, in the execution of his duty, the resistance being offered in front of the restaurant, contrary to what is now s. 118(a) of the Criminal Code.

The two charges (that of causing a disturbance by shouting being a summary conviction offence only) came before the same judge who convicted on both. The charge of causing a disturbance under s.171(1)(a)(i) was appealed by way of trial de novo and the accused was acquitted. There the matter stood and still stands on that charge. The charge of resisting the peace officer Dorion was appealed to the Quebec Court of Appeal and an acquittal resulted as already indicated.

I would have been content simply to adopt the reasons of Beetz J.A. and of Kaufman J.A. in the Quebec Court of Appeal and to dismiss the Crown's appeal without more, were it not for its submissions under s. 31(2) and its invocation of what I regard as a completely unsupportable find­ing by Deschênes J.A. that there was a lawful arrest on a form of an offence on which the accused was not tried nor with which he was even charged. I shall come to this last mentioned matter later in these reasons after I have dealt with the submissions under s. 31(2).

Whether the accused was guilty of an offence under s. 118(a) depends in this case on whether he was under lawful arrest. I do not question, despite the contentions of counsel for the respondent

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accused, that the accused offered resistance to Dorion; it was not, however, suggested that it was of such a character as to amount in itself to the use of excessive force. There was, however, but one arrest, that effected by Maisonneuve in the restau­rant; there was no suggestion of any release and re-arrest. The issue turns therefore on its lawful­ness. We are not concerned in this case with a constable's own responsibility or liability for effecting an allegedly unlawful arrest. It is to that that provisions such as s. 25 of the Criminal Code are addressed, I would find it astonishing that a provision concerned with a constable's criminal or other responsibility, and which immunizes him in specified circumstances in respect of an arrest that he has made, should become the vehicle for provid­ing a basis upon which an accused may himself be convicted of resisting the arrest. To do that is to turn a protective provision, a shield, for the constable into a sword against an accused by treating the protection as an expansion of the powers of arrest given by what is now s. 450 of the Criminal Code.

The particular provision of s. 450 which is of relevance here is subs. 1(b), authorizing a peace officer to arrest without a warrant "a person whom he finds committing a criminal offence". Maisonneuve arrested the accused without a warrant and the charge laid in respect of that arrest was causing a disturbance by shouting under the now s. 171(1)(a). It turns out that no such offence was committed at the time and place, and the arrest therefor was, qua the accused, unlawful. So far as the constable was concerned, his unlawful conduct was protected under s. 25. I repeat that the protection of the constable did not make the arrest lawful qua the accused. There are some cases which seem so to say. R. v. Shore[1] and R. v. Dand[2], both judgments of the British Columbia Court of Appeal, are in that class.

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The Shore case can stand on the finding that the police officer who made the arrest was empowered so to do under the provincial liquor statute, which authorized an arrest without warrant of a person found intoxicated in a public place. The reference in that case to s. 25 of the Criminal Code, in the bare narrative of its terms, seems to have been gratuitous but, if not, and if in context it was relied upon to support the power of arrest I would regard the Shore case to be wrongly decided. The Dand case indicates that this last mentioned view of the Shore case is the one that the British Columbia Court of Appeal took, and hence I hold the Dand case should similarly be overruled.

It seems to me that the British Columbia Court of Appeal later dissociated itself from the Shore and Dand cases by its decisions in R. v. Klat[3] and R. v. Cottam[4]; but, having regard to my opinion that those first mentioned cases were wrongly decided on the point under discussion, I need not embark upon any close examination of the Klat and Cottam cases to see whether relevant distinc­tions are open. In the Klat case, reliance was placed upon the judgment of the Saskatchewan Court of Appeal in Attorney General for Sas­katchewan v. Pritchard[5], and I am of the opinion that Culliton C.J.S. stated the law correctly, as it applies here, in the last paragraph of his reasons as follows (at p. 154):

While a peace officer has no right to arrest without a warrant a person he finds committing an offence unless an offence was in fact committed, nevertheless even if the officer was in error in so arresting, if he acted on reasonable and probable grounds he is given protection under s. 25 of the Code.

In short, the position of a person accused of an offence founded upon an allegedly lawful arrest which turns out to have been unlawful is one thing; the position of the arresting officer as a possible accused in a criminal prosecution or as a defendant in a civil suit arising out of the arrest is an

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entirely different thing: see Frey v. Fedoruk[6].

The reasoning and judgment of the English Court of Appeal in Wiltshire v. Barrett[7], have no application to this case. It was a civil action for damages against a constable for assault and wrongful arrest, not a criminal prosecution, as here, against an accused person for resisting a peace officer in the execution of his duty. The Wiltshire case involved a provision of the English Road Traffic Act, 1960 which prohibited a person, on pain of fine or imprisonment, from driving or attempting to drive a motor vehicle on a road or other public place when he was unfit to drive through drink or drugs. This prohibition, in s. 6(1), was fortified by s. 6(4) which empowered a police constable to arrest without warrant a person com­mitting the aforesaid offence. There was no such provision in the Road Traffic Act as s. 25 of the Criminal Code, which provides justification for a police constable when acting on reasonable and probable grounds. Hence, when the issue arose in Wiltshire as to protection of the constable from civil suit if he overstepped the literal command of s. 6(4), the Court there looked to statutory purpose and context and interpreted "committing" in s. 6(4) to mean "apparently committing", so as to make it immaterial whether the arrested person be found not guilty of the offence for which he was arrested without warrant. As Lord Denning put it (at p. 275 of the report) it is enough if the arrested person reasonably appeared to the constable to be committing an offence under the Act.

The position taken in Wiltshire, in the context of principle which I support, is well put by Salmon L.J. (at p. 281 of [1965] 2 All E.R.) as follows:

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The first point raised by counsel for the plaintiff is one of importance and some difficulty. He contends that, in order for the arrest to be lawful, the person arrested must in fact be guilty of the offence; no matter how drunk he may appear to have been when arrested, he has an irrefutable claim for damages for false impris­onment if he is subsequently acquitted of being unfit to drive through drink. This argument is found on the language of s. 6(4) of the Road Traffic Act, 1960. It is in this subsection that the power to arrest must be found, for the offence in question is a misdemeanour and not a felony and, accordingly, there is no common law power of arrest without warrant. The subsection reads: "A police constable may arrest without warrant a person committing an offence under this section." Clearly on a literal construction of these words there is much force in the contention of counsel for the plaintiff. He relies on the well established principle that any statute which impinges on the liberty of the subject should be strictly construed against the Crown; see Bowditch v. Balchin, (1850), 5 Exch. 378. I agree that it is of great impor­tance that nothing should be done which could in any way weaken that general principle. Moreover, if the legislature intends to give a police constable power to arrest without warrant on reasonable suspicion, it should do so in plain and unambiguous language which anyone can understand; see Ledwith v. Roberts, [1936] 3 All E.R. at p. 593. It is our duty to apply those principles and to give the language of this subsection its natural meaning if possible, but none the less in the end to give it its appropriate construction according to its context and the subject-matter with which it deals: ... I entirely agree with my lords that these considerations lead irre­sistibly to our construing the word "committing" as "apparently committing". This must have been the intention of Parliament. I reach this conclusion for the same reasons as my lords, which are the same as those which commended themselves to this court construing similar language in a similar Act in Trebeck v. Crou­dace, [1918] 1 K.B. 158. The very nature of the offence requires this construction.

This passage indicates how far removed the Wiltshire case is from the present one, how differ­ent is a civil suit against a constable charged with enforcing road traffic legislation, from a criminal prosecution against an accused person for resisting

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an unlawful arrest in respect of which the constable is given express protection from criminal and civil liability if he acted on reasonable and probable grounds: see also R. v. Dean[8].

There is a further point that merits emphasis. If the word "apparently" is to be read into s. 450(1) (b), logical consistency, if not also ordinary canons of construction, demand that the word be read into s. 449(1)(a) which empowers any person to arrest without warrant a person whom he "finds committing" an indictable offence. Moreover, it is plain to me, on grounds of context in aid of construction, that when s. 449(1)(a) is read with s. 449(1)(b), the former could not possibly embrace arrest without warrant on apparency or on reasonable and probable grounds. Further, reasonable and probable grounds for an arrest without warrant govern s. 450(1)(a) and s. 450(1)(c) but the words are excluded from s. 450(1)(b), and I see no textual or policy justification for reading them or the equivalent term "apparently" into s. 450(1)(b).

Of course, as Kaufman J.A. points out in his reasons, a constable's lot is a heavy and even unenviable one when he has to make an on-the-spot decision as to an arrest. But he may be overzealous as well as mistaken, and it may be too that when a charge or charges come to be laid the Crown attorney or other advising counsel may mistake the grounds and thus lay a charge which does not support the arrest. We cannot go on a guessing expedition out of regret for an innocent mistake or a wrong-headed assessment. Far more important, however, is the social and legal, and indeed political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person

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be detained or his freedom of movement arrested.

The position as it relates to resistance to unlaw­ful arrest was established at common law as early as 1709 in R. v. Tooley[9], and has been reaffirmed time and again: see, for example, R. v. Curvan[10]; R. v. Wilson[11], at p. 745, referring also to the qualification of the use of excessive force in resist­ing. It has been part of our criminal law from the beginning and is reflected in the provisions of the Criminal Code, which has sought to balance the competing interests in freedom and order by giving the peace officer protection in specified circum­stances where he has exceeded his authority to make an arrest. Our law has not, as I understand it, deprived the citizen of his right to resist unlaw­ful arrest. His resistance may be at his own risk if the arrest proves to be lawful, but so too must the police officer accept the risk of having effected a lawful arrest. Of course, even if the resisted arrest is unlawful, the person resisting may still become culpable if he uses excessive force.

Where does s. 31(2) of the Criminal Code stand in this assessment? It reads as follows:

Every peace officer is justified in receiving into cus­tody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable and probable grounds he believes has, witnessed the breach of the peace.

Section 31 is not an arrest power, but a protection for the person or persons making an arrest, just as is s. 25. Moreover, it is limited to protection in respect of an arrest for breach of the peace, and in that respect has a connection with s. 30, which does speak expressly of detention of a person com­mitting a breach of the peace. By no stretch of the imagination can either s. 30 or s. 31 be turned into a general power of either arrest or justification in respect of any criminal offence on the theory that all offences under the Criminal Code constitute [sic]

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breaches of the peace. This would eliminate at one swoop, and by a side wind at that, any protection that an accused would have against any conse­quential charges if he was illegally arrested under ss. 449 and 450, the provisions of the Criminal Code which define powers of arrest. The caution uttered by Cartwright J., as he then was, speaking for this Court in Frey v. Fedoruk, supra, at pp. 526 and 530, should be recalled and heeded. He said this:

If it should be admitted as a principle that conduct may be treated as criminal because, although not otherwise criminal, it was a natural tendency to provoke violence by way of retribution, it seems to me that great uncertainty would result. I do not think it safe by the application of such a supposed principle to declare an act or acts criminal which have not, up to the present, been held to be criminal in any reported case.

This would be my view if the matter were not covered by authority, but it also appears to me to be supported by authority. 1n my view it has been rightly held that acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tend­ency, and that the only way in which such conduct can be dealt with and restrained, apart from civil proceedings for damages, is by taking the appropriate steps to have the persons committing such acts bound over to keep the peace and be of good behaviour.

I am of opinion that the proposition implicit in the paragraph quoted above [from the judgment of O'Hallo­ran J.A. in the court appealed from] ought not to be accepted. I think that if adopted, it would introduce great uncertainty into the administration of the Crimi­nal Law, leaving it to the judicial officer trying any particular charge to decide that the acts proved con­stituted a crime or otherwise, not by reference to any defined standard to be found in the code or in reported decisions, but according to his individual view as to whether such acts were a disturbance of the tranquillity of people tending to provoke physical reprisal.

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But there is more to be said on s. 31(2) to show its inapplicability here. It is patent on its face that any resort to it can only be to give Dorion protec­tion for receiving the accused into his custody, albeit the latter was unlawfully arrested by Maisonneuve. Even so, this may be taking the matter too far because it is arguable, in the context of ss. 30 and 31, that s. 31(2) is limited to a peace officer taking in charge a person detained by an ordinary citizen. Be that as it may, it is simply a "bootstrap" argument to contend that resistance to Dorion became unlawful because he, Dorion, was justified in taking custody of the accused following his arrest by Maisonneuve.

I come then to the issue raised by the dissenting reasons of Deschênes J.A. He opened his reasons by remarking on the narrow frame of the charge laid against the accused under the now s. 171(1) (a)(i), and he endorsed the acquittal of the accused upon the trial de novo. That done, he proceeded to hold that the acquittal of the accused did not necessarily free him of liability for resist­ing arrest, and on this principle (which is contrary to the view expressed in the Pritchard case) he went on to find that the accused was guilty of an offence under s. 171(1) (a) (i) by swearing or using obscene language. I quote his words, peremptory in their statement and in their conclusiveness:

It seems to me unquestionable that appellant had committed the offence under Section 160 of the Crimi­nal Code, by shouting or at least "by swearing" and "using insulting or obscene language". That he was not charged with it does not eliminate the blunt fact that he was committing it in the very sight of the constables and against them.

I do not think that an appellate court or appellate judge should essay, on an appeal in respect of a charge of resisting an officer in the execution of his duty, based as it was on an arrest for a specific form of an offence, to ignore that form altogether and proceed without more to find the accused guilty of another form of the offence with which he was not charged and to which he was not

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obliged to offer any defence, and, moreover, which was not before the appellate court in any shape that would warrant cognizance thereof. Indeed, to come to the conclusion that the accused was so guilty, Deschênes LA. had to make findings of fact (without the usual trial in which facts are first found) and it seems to me that in expressing a dissent which is based on fresh findings of fact Deschênes IA. cannot be said to have dissented on a question of law under s. 621(1)(a). Equally, I do not see how his view can be regarded as raising a question of law under s. 621(1)(b).

I need not decide in this case the invariable correctness of the proposition in the Pritchard case that, as illustrated in the present case, the acquit­tal on the charge under s. 171(1) (a) (i) (especially when the matter was not carried forward to a further appeal) "established once and for all that the respondent was not found committing a crimi­nal offence". That can be left for further consider­ation. The proposition is indubitably correct here.

I would dismiss the appeal.

The judgment of Martland, Judson, Ritchie and Pigeon JJ. was delivered by

MARTLAND J.—This is an appeal, by leave of this Court, from the judgment of the Court of Appeal of the Province of Quebec, which, by a majority of two to one, allowed the appeal of the respondent, hereinafter referred to as "Biron", from his conviction on a charge of resisting a peace officer, contrary to what is now s. 118(a) (then s. 110(a)) of the Criminal Code, R.S.C. 1970, c. C-34, which provides;

118. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

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is guilty of

(d) an indictable offence and is liable to imprisonment for two years, or

(e) an offence punishable on summary conviction.

The charge related to resistance to an officer of the Montreal police force, Constable Dorion.

The facts which gave rise to this charge were as follows:

The Montreal police made an authorized raid on a Montreal bar on October 24, 1970. The raid was in search of illegal firearms and liquor. Biron was at the bar while the raid was taking place. He had been drinking. He refused to co-operate with the police, verbally abusing them and refusing to give his name.

Biron was arrested inside the restaurant by Constable Maisonneuve. He was led outside by Constable Gauthier for questioning. He was handed over by Constable Gauthier to Constables Dorion and Marquis, who took him to a police car. Subse­quently, Constable Dorion tried to take him to the police wagon. Biron protested his arrest at this point and a scuffle with Constable Dorion occurred.

Biron was charged with creating a disturbance in a public place by shouting, contrary to s. 171(a)(î) of the Code (then s. 160(a)(i)). He was also charged with resisting a peace officer, as previously mentioned.

Section 171(a)(î) provides as follows:

171. Every one who

(a) not being in a dwelling-house causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

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is guilty of an offence punishable on summary conviction.

Biron was convicted of both offences before a judge of the Municipal Court. A trial de novo was held in respect of the s. 171(a)(i) offence. He was acquitted of "creating a disturbance by shouting" on the ground that there was no evidence he had been shouting as was alleged in the information.

Biron appealed the s. 118(a) conviction to the Quebec Court of Appeal. By a two to one majori­ty, the appeal was allowed and Biron was acquitted.

Beetz J.A. (as he then was) and Kaufman J.A. allowed the appeal on the ground that the arrest had not been a lawful one. They held that where a police officer arrests without a warrant on a sum­mary offence he must actually find the accused "committing a criminal offence". Where this is not so, the arrest is illegal and the person is entitled to resist the arrest reasonably.

Beetz J.A. found that the arrest was not a lawful one by reviewing the evidence and determining that Biron had not created a disturbance within the meaning of s. 171(a)(i).

Kaufman J.A. found that the fact that Biron had been acquitted of the substantive offence with which he was charged was in itself determinative that he had not been committing the offence.

Deschênes J.A, (as he then was) dissented. He would have found the arrest lawful and Biron guilty of resisting a lawful arrest. His approach was similar to that of Beetz J.A., but he reached a different determination on the facts, finding that Biron was in fact committing the offence of creat­ing a disturbance under s. 171(a)(i) at the time he was arrested, even though the disturbance was not by shouting.

On the appeal to this Court, the Crown relied upon the provisions of s. 31(2) of the Code, the effect of which had not been argued in the Court of Appeal. Section 31 provides as follows:

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31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists him is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable and probable grounds, he believes is about to join in or renew the breach of the peace.

(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable and probable grounds he believes has, witnessed the breach of the peace.

The question in issue is as to whether the charge against Biron of resisting Dorion in the execution of his duty must fail because of his successful appeal from his conviction under s. 171(a)(i) for causing a disturbance.

It is contended on behalf of Biron that he could not be so convicted because he was not under lawful arrest, and so was entitled to resist Dorion's efforts to take him to the patrol wagon. It is argued that he had not been lawfully arrested because Maisonneuve's right to arrest him for a summary conviction offence had to be based on s. 450(1) (b) of the Code, which provides that:

450. (1) A peace officer may arrest without warrant

(b) a person whom he finds committing a criminal offence,

It is submitted by the respondent that Maisonneuve did not find him committing a criminal offence because he was acquitted on the charge laid against him. Reliance is placed on the judg­ment of the Court of Appeal for Saskatchewan in Attorney General for Saskatchewan v. Pritchard[12].

Paragraph (a) of s. 450(1) permits a peace officer to arrest without a warrant:

(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he

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believes has committed or is about to commit an indictable offence,

This paragraph, limited in its application to indictable offences, deals with the situation in which an offence has already been committed or is expected to be committed. The peace officer is not present at its commission. He may have to rely upon information received from others. The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds.

Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being com­mitted. His power to arrest is based upon his own observation. Because it is based on his own discov­ery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.

If the reasoning in the Pritchard case is sound, the validity of an arrest under s. 450(1)(b) can only be determined after the trial of the person arrested and after the determination of any subse­quent appeals. My view is that the validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made.

This was the view of the Court of Appeal in England in Wiltshire v. Barrett[13], when interpret­ing a provision of the Road Traffic Act, 1960 (Can.), c. 16. Section 6(1) of that Act made it an offence for a person who, when driving or attempt­ing to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs,

Subsection (4) of s. 6 provided:

A police constable may arrest without warrant a person committing an offence under this section.

The case was a civil action for assault and wrongful arrest. The plaintiffs car had been overtaken

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and stopped by the police. A constable sought to arrest the plaintiff, who resisted by remaining in his car. He was removed after a struggle and taken to the police station. He was examined by the police doctor, who concluded that he was not unfit to drive. He was then released. No further action was taken against him. Subse­quently he sued the police constable who had arrested him.

Lord Denning said, at p. 273:

Counsel for the plaintiff submitted that this section only empowered a constable to arrest a person who was actually committing an offence under the section; and, accordingly, that the constable was only justified if he could prove that the person was in fact guilty; whereas counsel for the defendant submitted that a constable was entitled to arrest any person who was apparently committing an offence; and, accordingly, the constable was justified so long as it appeared to him that the man was unfit through drink, even though the man should afterwards be found to be not guilty. This question has to be answered by examining the contents of this par­ticular statute; see Barnard v. Gorman, [1941] 3 All E.R. 45 at pp. 50, 51; [1941] A.C. 378 at p. 387. On examining this statute, I find it very similar to the statute considered by this court in Trebeck v. Croudace, [1916-17] All E.R. Rep. 441; [1918] 1 K.B. 158. Just as Lord Wright thought, [1941] 3 All E.R. at p. 55; [1941] A.C. at p. 394, that, in that context, "drunk" meant "apparently drunk", so I think that, in this context, "committing an offence" means "apparently committing an offence". My reasons are these: this statute is con­cerned with the safety of all of Her Majesty's subjects who use the roads in this country. It is of the first importance that any person, who is unfit to drive through drink, should not be allowed to drive on the road; and that the police should have power to stop him from driving any further. The most effective way to do it is by arresting him then and there. The police have to act at once, on the facts as they appear on the spot; and they should be justified by the facts as they appear to them at the time and not on any ex post facto analysis of the situation. Their conduct should not be condemned as unlawful simply because a jury afterwards acquit the driver…

[Page 74]

Our attention was drawn to the wording of s. 217(1) of the Act of 1960, which says that

"A person who takes and drives away a motor vehicle without having either the consent of the owner thereof or other lawful authority ..."

shall be liable to fine or imprisonment; and to s. 217(4), which says that

"A police constable may arrest without warrant a person reasonably suspected by him of having com­mitted or of attempting to commit an offence under this section."

It was said that this section expressly empowered arrest on reasonable suspicion. If Parliament intended a like power under s. 6, surely they would have expressed it in like language. But I think that different considerations apply. Section 217 deals with offences where the power of arrest may be exercised some time after the offence has been committed. It may be based, not on the constable's own observation, but on information received from others; whereas s. 6 deals with offences where the power of arrest is to be exercised at the very time when a person is committing the offence, or very soon after-wards. So much so that the constable acts on his own observation. Naturally enough there is a difference in language.

My conclusion is that, on the true construction of s. 6(4), a constable is justified in arresting the driver of a motor car if the driver was apparently committing an offence under the section.

In my opinion this reasoning can properly be applied to the interpretation of s. 450(1)(b). It is true that the Wiltshire case was a civil action for damages, but it necessitated the judicial interpre­tation of a statutory provision which is substantial­ly the same. There being no English equivalent of s. 25 of the Criminal Code to provide the constable with protection from suit, he could only escape from civil liability for damages if he could estab­lish that he was entitled to make the arrest. His power to arrest without warrant arose in respect of "a person committing an offence under this sec­tion". The Court held that he was justified in making the arrest if the person arrested was appar­ently committing the offence.

[Page 75]

In the Wiltshire case the statutory provision involved the power to arrest without a warrant a person unfit to drive because of drink or drugs and the Court referred to the public importance of an arrest being promptly made in such circumstances. Paragraph (b) of s. 450(1) deals with the power to arrest without a warrant a person found committing any criminal offence. It is certainly of public importance that the peace officer should be able to exercise this power promptly.

If the words "committing a criminal offence" are to be construed in the manner indicated in the Pritchard case, para. (b) becomes impossible to apply. The power of arrest which that paragraph gives has to be exercised promptly, yet, strictly speaking, it is impossible to say that an offence is committed until the party arrested has been found guilty by the courts. If this is the way in which this provision is to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is "committing a criminal offence". In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.

In the present case Constable Maisonneuve observed an apparent offence being committed by Biron. That he was justified in so thinking is shown by the fact that, at trial, Biron was convicted of the offence of causing a disturbance, and that his appeal from conviction resulted from the fact that the information charged only causing a disturbance "by shouting", which "shouting" the judge on appeal found was not established by the evidence.

In my opinion the arrest of Biron by Maisonneuve was lawful, and, consequently, the resistance offered by Biron to Dorion constituted an offence.

[Page 76]

Even if the arrest by Maisonneuve was not lawful, it is my view that Biron was guilty of the offence charged. It was Maisonneuve who made the arrest, not Dorion. Following the arrest, Biron was placed in the custody of Gauthier, who then placed him in the custody of Dorion. The resistance with which Biron was charged was resistance to Dorion and the question in issue is as to whether Dorion was resisted in the execution of his duty.

His duty is defined in s. 54 of the Police Act, S.Q. 1968, c. F7:

54. It shall be the duty of every municipal police force and each member thereof to maintain peace, order and public safety in its territory and in any other territory under its jurisdiction, to prevent crime and infringements of its by-laws and to seek out the offenders.

On the night in question Dorion was one of a group of police who conducted a raid upon a bar in Montreal. It was a part of his duty, in connection with that raid, to take custody of persons who might be arrested by police officers in the building, and that is what happened in the case of Biron. In taking him into custody he was carrying out the duty which had been given to him as a police officer.

Section 31(2) of the Code provides that Dorion was justified in receiving Biron into custody, The arrest made by Maisonneuve was because he con­sidered Biron to be committing a disturbance, in a public place, which would be a breach of the peace. It is evident that Dorion, who was a part of the police force conducting the raid, reasonably believed that Gauthier, who turned Biron over to him, had witnessed a breach of the peace.

I interpret the word "justified" in s. 31(2) as meaning that Dorion had lawful sanction to receive Biron into his custody. He received him into his custody in the course of performance of his duties as a peace officer at the scene of the raid. Biron offered resistance to him in the execution of that duty. In my opinion that is sufficient to make

[Page 77]

Biron guilty of the offence with which he was charged under s. 118(a).

I would allow the appeal and restore the conviction.

DE GRANDPRÉ J.—I have had the advantage of reading the reasons of Martland J., and I am in agreement with him.

I might add a few words concerning the distinc­tion which I feel must be emphasized between arrest and custody of an individual. In my opinion, an arrest is a specific act, clearly limited as to time, which cannot be broken down into several stages. Once the arrest is made, the concept of arrest ceases to apply, and a new concept, that of custody, becomes applicable. To my mind, this very clear distinction is the result of the two paragraphs of s. 31 of the Criminal Code, even though the latter is found under the heading "Pro­tection of Persons Administering and Enforcing the Law". If the fact that a peace officer took an individual into custody in the circumstances men­tioned in the section constituted only one phase of an arrest, there is no question, to my mind, that the section would have been worded quite differently.

Section 133 of the Criminal Code (formerly s. 125) is not without relevance, and it must be read in light of the decision of this Court in R. v. James Whitfield[14].

Accordingly I would allow the appeal.

Appeal allowed, LASKIN and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant. Jules Allard, Montreal.

Solicitor for the respondent: Serge Menard, Montreal.