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Criminal - Warrantless Arrest

. R. v. Desilva

In R. v. Desilva (Ont CA, 2022) the Court of Appeal considered principles applicable to warrantless arrest:
i. Applicable Legal Principles on Arrest Without a Warrant

[56] Section 495 of the Criminal Code requires an arresting officer to have a subjective belief that there are reasonable and probable grounds to arrest. That belief must also be objectively reasonable. It is clear, however, that police are not required to establish a prima facie case for conviction before making an arrest: R v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 251.

[57] There is no difference between “reasonable grounds” and “reasonable and probable grounds”: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 5. The “reasonable grounds to believe” standard requires something more than a reasonable suspicion, but less than either “proof of beyond reasonable doubt” or the lesser standard in civil matters of “proof on the balance of probabilities”: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 S.C.R. 100, at p. 145; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at paras. 31, 33; and R. v. Ha, 2018 ABCA 233, 363 C.C.C. (3d) 523, at para. 70; see also, R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 114. The Supreme Court has also described the standard as one of “reasonable probability” or “reasonable belief”: Debot, at p. 1166.

[58] The key determination that a court must make is whether a reasonable person, with the same knowledge, training and experience as the arresting officer, would believe that reasonable grounds existed to make the arrest. In so doing, the court must look at the cumulative effect of the totality of the circumstances, bearing in mind any exigent circumstances: Storrey, at pp. 250-51; R. v. Beaver, 2022 SCC 54, at para. 72; R. v. Tim, 2022 SCC 12, at para. 24; Canary, at paras. 21-22 and 30; and R v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265, at para. 19.

[59] While the reasonable grounds requirement does not rise as high as a balance of probabilities or a prima facie case, mere hunches or intuition based on an officer’s experience are not sufficient: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 64, as cited in Beaver, at para. 72. As this court has held, the standard is satisfied at the point where credibly-based probability replaces suspicion: R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25. The determination of whether objective grounds exist should be guided by common sense, flexibility, and practical everyday experience: MacKenzie, at para. 73; Canary, at para. 22.

[60] This assessment is made “at the time of the arrest”, bearing in mind that an arrest may be a dynamic process, not necessarily a discrete point, and information may be continuously gathered and processed up to the time that the detainee is arrested: Tim, at para. 24; Ha, at paras. 70, 75. The Charter protects citizens from police conduct, not imagination, and consequently, breaches are determined not based on what officers intend to do, but what they actually do: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 48.

[61] The determination of whether there are reasonable grounds to believe an accused person has unlawfully ceased to be in the presence and direct company of his surety must be based on the totality of the circumstances, having regard to the purpose of a surety arrangement.

[62] An accused person on bail is “in the constructive custody of his/her sureties” and therefore, “the law contemplates some measure of physical control by the accused’s sureties (emphasis added)”: Gary T. Trotter, The Law of Bail in Canada, 3rd. ed. (Toronto: Thomson Reuters, 2017), at § 7:6. Sureties are legally required and authorized to exercise some measure of supervision over accused persons on bail to ensure that they abide by their conditions of release: The Law of Bail in Canada, at §§ 7:4-7:6. The requisite degree of control and supervision varies with the context. Where, as in the case at bar, an accused is on house arrest and required to reside in the surety’s residence or be accompanied by her at all times (except in medical emergencies), the expectation of control and supervision is more exacting: R. v. Smith, 2013 ONSC 1341, at para. 16.
. R. v. Beaver

In R. v. Beaver (SCC, 2022) the Supreme Court of Canada sets out basics of warrantless arrest:
(1) Legal Principles Governing a Warrantless Arrest

[71] The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.

[72] The essential legal principles governing a warrantless arrest are settled:
1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).

2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).

3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).

4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).

5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).

6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39 (CanLII); R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).

7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).

8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).
[73] The existence of reasonable and probable grounds for a warrantless arrest is based on the trial judge’s factual findings reviewable only for palpable and overriding error. Whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness (Shepherd, at para. 20; Tim, at para. 25).

(2) Contemporaneous Police Notes Are Desirable but Not Mandatory in a Warrantless Arrest

[74] The appellants do not question the legal principles above. Instead, they contend that a warrantless arrest is unlawful where the police fail to take detailed contemporaneous notes of their grounds for arrest and the material relied on in forming those grounds. They claim that the lack of contemporaneous notes frustrates a court’s ability to review the existence of subjective grounds for arrest, the information known to the officer at the time of arrest, and whether this information justifies the subjective grounds from an objective viewpoint.

[75] I agree that contemporaneous notes are generally desirable when determining whether the police had reasonable and probable grounds for a warrantless arrest, but I disagree that such notes should be mandatory in all cases. This Court has insisted on detailed notes to justify the police conducting warrantless cell phone searches (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 82), and has encouraged them in several contexts, including for strip searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101), for warranted searches of a computer (R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 70), and after searching a home incident to arrest (R. v. Stairs, 2022 SCC 11, at para. 81). However, our law has never insisted on contemporaneous notes for all warrantless arrests, nor would I impose such a requirement. Insisting on contemporaneous notes in all cases could undermine the ability of the police to respond appropriately to the dynamic situations they face each day.

[76] The lack of contemporaneous notes does not necessarily frustrate judicial review of warrantless arrests. Courts routinely evaluate the existence of reasonable and probable grounds based on the arresting officer’s testimony and other evidence (see, e.g., R. v. Nguyen, 2017 BCPC 131; R. v. Kroeker, 2019 BCPC 127; R. v. Rauch, 2022 BCPC 117; R. v. Daley, 2015 ONSC 7367).

[77] I therefore conclude that contemporaneous notes are not legally required for a warrantless arrest in all cases. Nor, as I will explain, does the absence of such notes frustrate judicial review here.


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