Sections 28 and 29 – Executing A Warrant: Episode 35 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode, I will discuss two sections of the Criminal Code pertaining to the execution of a warrant for arrest.  Section 28 is another section protecting those who enforce the law from criminal responsibility in certain circumstances. The circumstances in this instance is executing a warrant for an arrest of a person who is not the person named in the warrant.

The person so executing the warrant is only protected against this “mistake,” pursuant to s. 28(1), if he or she believed “in good faith and on reasonable grounds” that the person he has arrested is the person named in the warrant.  Similarly, under s. 28(2)(a) any person assisting in the execution of the warrant is also relieved from criminal responsibility if he or she believed that the person arrested is the person named in the warrant. Notice that this belief is not required to be “in good faith and on reasonable grounds.”

Finally, in section 28(2)(b), a prison official or “keeper of a prison” who is required to “receive and detain” a person pursuant to the authority of the arrest warrant, is relieved from criminal responsibility where the keeper believes the person so detained is the person named in the warrant. Again, there is no requirement that this belief be “in good faith and reasonable.” It should be noted that the term “prison” is defined under s. 2 of the Code and includes “a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody.” Therefore, this section would protect from criminal responsibility the police officer in charge of the police station lock-up.

There are of course possible civil implications for arresting the wrong person for which the section does not provide any immunity. Indeed, at common law the person executing a warrant against the wrong person could be liable for false imprisonment. However, evidence of good faith could mitigate the damages. In the 1968 case of Fletcher v. Collins et al. , the trial judge dismissed an action for assault, false arrest and false imprisonment against the police for arresting the Plaintiff, who had the same name as the person in the warrant but was not the person in question. In that case, the appearance of the Plaintiff fitted the general description given of the suspect. Furthermore, the Plaintiff’s belligerent attitude upon arrest reinforced the officer’s belief that he had arrested the correct person. The court found that not only were the officers acting in good faith but they were also acting as a reasonable person would in the circumstances.

Section 29 approaches the granting of immunity from criminal responsibility differently than other such sections. It is useful to set out the whole section as follows:

            29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

            (2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of

            (a) the process or warrant under which he makes the arrest; or

             (b) the reason for the arrest.

(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility.

Section 29(1) sets out a duty or responsibility of the person executing a warrant or process to have the document, if feasible to do so, and to present it upon request. There are different types of warrants referred to in the Code such as a search warrant under s. 487, a telewarrant under s. 487.1, a bench warrant under s. 597 of the Code and an arrest warrant under s. 83.29. The word “process” is not defined in the Code but there are references in the Code, which can help define this term. For instance, process is referred to in the headings of certain sections, such as s. 507, which relate to legal documents that are issued by a court of competent jurisdiction. Often these documents require the accused’s attendance in Court such as a summons, a warrant or a notice. Process may also relate to the seizure of property such as under s. 270 or to civil process under s. 176 or to the powers of the Court of Appeal under s. 683.

Often s. 29 is relied upon to require police officers executing a search warrant to have the warrant available for presentation in order to provide the person with information relating to the reason for the search and to provide information relating to the authority of the search, which would inform and assist in the person’s assessment of his or her legal position. However, this duty does not require the officers to automatically produce the warrant but to merely have it and produce when asked to do so.

Historically, as thoroughly discussed in the 2000 British Columbia Court of Appeal case of  Bohn, this section is a codification of the common law although the section prior to amendment in 1953 required a person executing a warrant or process to have the document and to produce it upon request, without the present condition that this be done only if “feasible.” In the 2010 Supreme Court of Canada Cornell case, the majority and dissent took very different views of s. 29. The majority decision written by Justice Cromwell, determined that in the context of a search of a premises, the objectives of the section would be fulfilled as long as a member of the search team possessed the search warrant. In that case, the lead investigator possessed the warrant but he did not take part in the initial search when the tactical team first entered the premises. In a strongly worded dissent written by Justice Fish, a failure in the duties under section 29 were described as a “violation of a venerable principle of historic and constitutional importance,” which was “not a technical or insignificant breach of the law.” Thus, for the dissent the fact that the first officers to enter the premises did not have the warrant in hand was a violation of s. 29.

Section 29(2) is a more specific duty requiring those who arrest a person, with or without a warrant, to give notice to the person of the warrant or the process under which the arrest is being made or to give notice of the “reason for the arrest.” The duty is only required “where it is feasible to do so.” Even if the duties under section 29 are not fulfilled, s. 29(3) protects the person from criminal responsibility.

In the 1973 Supreme Court of Canada Gamracy case, the Court determined that s. 29(2) applied to arrests without a warrant and s. 29(1) did not apply. Further, s. 29(2)(a) and 29(b) should be read disjunctively. Therefore an officer making an arrest without a copy of the warrant discharges his or her duty by advising the person of the existence of the warrant or process under which the arrest is being made. There is no subsequent duty for that officer to present the actual warrant or process.

The Charter has, to some extent, constitutionalized s. 29(2)(b) under s. 10(a) requiring a person on arrest or detention the right to be informed “promptly” of the reasons. Clearly, the Charter right is more stringent as s. 29(2) only alleviates the person from fulfilling this s. 29 duty if fulfillment is not  “feasible.” Thus an officer simply advising a person that there is a warrant in existence may not fulfill this Charter duty: see R. v. Wrightman, 2004 ONCJ 210 (CanLII).  Ultimately, whether or not a failure to comply with s. 29 amounts to a Charter breach will depend on the facts: see the ABQB 2014 case of R v Gerlitz where such a failure did not amount to a Charter violation.