Simon's Megalomaniacal Legal Resources

Criminal - Warrantless Arrest

. R. v. Fyfe

In R. v. Fyfe (Ont CA, 2023) the Court of Appeal considers RPG for a warrantless arrest, here focussing on the 'objective reasonableness' of the arrest:

[43] The issue was whether there were reasonable and probable grounds for the officers to believe that the appellant possessed illegal drugs for the purpose of trafficking, not, as the appellant’s counsel asserted in the Charter application, whether he was observed actively trafficking or for that matter whether he was trafficking from his apartment at 11 Terrance. The fact that the officers did not observe evidence of trafficking did not mean that the surveillance had no confirmatory value. As this court observed in R. v. Bajich, 2019 ONCA 586, at para. 16, “the police need not corroborate every detail, nor do they need to confirm a tip to the extent of having observed the commission of the offence”. See also R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 22-23.

....

(ii) The appellant’s proposed restriction of the assessment of the objective reasonableness of the grounds for arrest is inconsistent with prevailing law

[48] I turn to address the merits of the appellant’s contention that, as a matter of law, a trial judge’s assessment of the objective reasonableness of the grounds for arrest must be based on the subjective grounds articulated by the arresting officer.

[49] The appellant asserts that the evaluation of the objective reasonableness of the grounds for arrest must be based on those grounds that were specifically articulated by the arresting officer, and that any factor or circumstance the officer fails to mention, or says that they did not take into consideration, cannot be considered in determining the objective reasonableness of the grounds. The appellant acknowledges that there is no case authority that expressly endorses such a limitation,but says this meaning can be inferred from the formulation of the test set out in certain cases. For example, in R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 24, Jamal J. states: “The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint” (emphasis added). The appellant says that “those grounds” must refer to the actual grounds articulated by the arresting officer. Since, as the appellant contends, the officers did not rely on the October 15 surveillance, the trial judge erred in relying on this evidence to support the objective reasonableness of his arrest.

[50] As I will explain, the rule the appellant invites this court to endorse for reasonable and probable grounds to arrest is inconsistent with the authorities, risks conflating the first and second stages of the test, and would undermine the goal of the objective stage, which is to safeguard against arbitrary arrest.

[51] I begin with first principles. Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, authorizes the arrest without warrant of a person who has committed an indictable offence, or who on reasonable grounds the arresting officer believes has committed or is about to commit such an offence. “Reasonable grounds” in s. 495(1)(a) requires reasonable and probable grounds: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 5.

[52] In assessing whether there were reasonable and probable grounds for arrest, the court must determine whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest and then whether those grounds were justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.

[53] The focus for the subjective part of the test is on the bona fides of the arrest – whether the arresting officer “honestly believe[s] that the suspect committed the offence”: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72(2). Typically, this involves a determination of the arresting officer’s credibility. That said, the evidence of subjective grounds for an arrest does not necessarily come from a single officer. An arrest may involve multiple officers, and occur in a dynamic situation as new information rapidly comes to light. The evidence of various officers may, as in this case, be contradictory in certain respects. As such, evidence about the subjective grounds for arrest may come from one or more officers and other sources, including the surrounding circumstances: see e.g., R. v. R.M.J.T., 2014 MBCA 36, 303 Man. R. (2d) 292, at paras. 60-63; R. v. Dill, 2009 ABCA 332, 464 A.R. 92, at paras. 6-7; R. v. Messina, 2013 BCCA 499, 346 B.C.A.C. 179, at paras. 25-26.

[54] How an officer specifically articulates the grounds, that is the officer’s explanation of the grounds for the arrest, while relevant to their credibility, is not determinative. The question for determination at the first stage is whether the officer or officers at the time the arrest was made had an honest belief that the person committed (or was about to commit) an offence: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38. To paraphrase the Supreme Court in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 48, Charter breaches are determined not on the basis of what police officers intend to do or think they can do, but on what they actually do at the time the arrest takes place.

[55] At the second step – the evaluation of whether the arrest was justified, and whether there were objectively reasonable and probable grounds – it must be objectively established that the reasonable and probable grounds did in fact exist: that “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at p. 250.

[56] While there are reported cases from our court that speak of an assessment of “[t]he totality of the circumstances relied upon by the arresting officer” at the second, or objective, stage (see e.g., R. v. Lawes, 2007 ONCA 10, at para. 4 (emphasis added); see also R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 27, citing Lawes), other authorities cast the net more broadly to move away from the arresting officer’s subjective belief and reasons for the arrest, and to require the court to consider all of the circumstances reasonably known to the arresting officer.

[57] In Canary, Fairburn J.A. (as she then was) did not tether the review for objective reasonableness to the officer’s articulated grounds for arrest. Rather, she referred to the court’s consideration of “the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”. She stated at para. 22:

When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining 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. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

[58] In R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, at para. 14, this court stated that “there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief”, and explained that otherwise, “the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances”.

[59] The focus is not on the officer’s subjective perception, but on what a reasonable person standing in the shoes of the officer would have perceived. As this court stated simply in Bush, at para. 38, the officer’s belief must be supported by “objective facts”.

[60] To restrict the evaluation of the circumstances to an assessment of the reasonableness of only the officer’s articulated grounds and not all of the circumstances known to the officer would have the obtuse result of rewarding an officer’s tunnel vision. Officers are expected not to shut their eyes to relevant circumstances, ignore appropriate inquiries or fail to take into consideration exculpatory, neutral or equivocal information: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 33. They must take account of all available information and disregard only information reasonably believed to be unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, at p. 751, leave to appeal refused, [1997] S.C.C.A. No. 571.

[61] In challenging the objective reasonableness of an arrest, it is not unusual for an accused to point to some fact or circumstance that was known to the officer that would undermine the objective reasonableness of the arrest: see e.g., Canary, at paras. 28-29; R. v. Henareh, 2017 BCCA 7, at para. 52; R. v. Chang, 2019 ONCA 924, at paras. 4-6. Focusing on the officer’s articulated grounds and not considering the broader circumstances would undermine the objective part of the review of reasonable and probable grounds.

[62] Finally, the appellant’s contention that the objective component of reasonable and probable grounds must focus only on an officer’s articulated grounds is inconsistent with the exhortations in the authorities to consider “the totality of the circumstances” (Shepherd, at para. 21); “the cumulative effect of the totality of the circumstances, bearing in mind any exigent circumstances” (R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 58); “[t]he totality of the circumstances known to police” (R. v. Orr, 2021 BCCA 42, 399 C.C.C. (3d) 441, at para. 78); and “the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer” (Canary, at para. 30). Returning to Tim and the passage relied on by the appellant to suggest that it is the officer’s articulated grounds that must be objectively justifiable, that passage must be read in the context of what follows. Jamal J. states at para. 24:

The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The 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. [Emphasis added.]

[63] For these reasons, I would not give effect to the appellant’s argument that the trial judge erred in considering the October 15 surveillance. As a matter of evidence, each of the officers testified that they had in fact relied on the surveillance that day as part of the grounds for making the arrest. And, as a matter of law, the trial judge was entitled, and in fact required, to consider all of the circumstances known to the officers in determining whether there were objectively reasonable and probable grounds for the appellant’s arrest.

. R. v. Whitfield

In R. v. Whitfield (Ont CA, 2023) the Court of Appeal considered the validity of an arrest where the police had confused the identity of the defendant:

(1) The police mistake regarding the appellant’s identity did not, in itself, render the arrest unlawful

[21] The police were not required to be correct about the identity of the appellant before they formed grounds to arrest. Under s. 495 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, a warrantless arrest is lawful if the arresting officer believes, on reasonable grounds, that the suspect has committed an indictable offence. The standard of “reasonable grounds” focuses on the officer’s state of mind and the reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be “based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken”: R. v. St. Clair, 2021 ONCA 895, 408 C.C.C. (3d) 117, at para. 26, leave to appeal to S.C.C. refused, 40270 (November 24, 2022); see also R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40.

. R. v. Reid

In R. v. Reid (Ont CA, 2023) the Court of Appeal considered the test for warrantless arrest:

[12] We are not persuaded by this submission. In R. v. Storrey, [1990] 1 S.C.R. 240, at pp. 250-51, the Supreme Court of Canada enunciated a two-part test for determining whether the police had reasonable and probable grounds for making a warrantless arrest: (a) whether the arresting officer(s) subjectively believed the person arrested was committing, had committed, or was about to commit a criminal offence; and (b) whether the grounds were justifiable from an objective point of view, that is whether objectively a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the 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.