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Criminal - Warrantless Arrest (2). R. v. Izzeddin
In R. v. Izzeddin (Ont CA, 2024) the Ontario Court of Appeal considered the law of warrantless arrest:[12] Applying R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, the trial judge was satisfied that P.C. Montgomery subjectively believed that he had grounds to arrest the appellant for possession of stolen property. He accepted the reasonableness of the officer’s belief that more than one person was involved in the offences broadcast over the police radio. In reaching this conclusion, the trial judge relied on R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), in which this court noted, at p. 750:The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. ....
[15] With the assistance of duty counsel, the appellant submits that the trial judge erred in dismissing his claims under ss. 8 and 9 of the Charter. He submits that P.C. Montgomery lacked reasonable grounds to detain or arrest the appellant for the offence of possession of the stolen vehicle because: (1) he merely assumed that more than one person was involved in committing the robbery and theft; and (2) there was no reasonable basis to believe that the appellant was in constructive possession of the stolen car. In making this latter submission, he relies on R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, for the proposition that being a passenger in a car alone does not establish constructive possession. We do not accept these submissions.
[16] On the record before him, it was open to the trial judge to conclude that P.C. Montgomery believed that the two events that were broadcast over the police radio were related, and that they involved more than one perpetrator. Moreover, the Crown was not required to establish a prima facie case for possession to justify the detention and subsequent search of the appellant; all that was required was reasonable grounds to believe. We would not disturb the trial judge’s conclusion on this issue.
[17] Even if the conduct of the police fell short of the mark based on the possession issue, the circumstances amply justified the detention of the appellant for investigative purposes. It was not contested that P.C. Montgomery located the vehicle that had been stolen hours earlier. When he approached the vehicle at the gas station, the driver of the vehicle matched the description of the person broadcast over the police radio. In these circumstances, the police were under a duty to investigate the role, if any, of the other occupants in the vehicle, all of whom were masked.[1] As the trial judge found, the subsequent search of the appellant was undertaken for public safety purposes. This search was justifiable as a search incident to arrest and as a search incident to an investigative detention. Therefore, even if there were a Charter breach in relation to the formal arrest, it would have been a minor one that would have had no appreciable impact on the s. 24(2) analysis. . R. v. Cameron
In R. v. Cameron (Ont CA, 2024) the Ontario Court of Appeal considered the law of warrantless arrest, an issue that arises in Charter s.9 ['Detention or imprisonment']:[39] In deciding whether a warrantless arrest contravenes s. 9 of the Charter, the court is to consider 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; R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 52.
[40] In this case, the issue is whether the grounds for arresting the appellant were justified from an objective point of view. In considering the objective component of reasonable and probable grounds, as recently held by this court in R. v. Harvey, 2024 ONCA 47, at para. 25, the inquiry “proceeds from a holistic consideration of all of the facts” and “[i]t is not a matter of parsing each factual occurrence seriatim to determine whether or precisely when reasonable and probable grounds arose”. As held in Fyfe, at para. 62, this inquiry is based on the “totality of the circumstances” or the “cumulative effect of the totality of the circumstances”.
[41] In addition, in the context of reasonable and probable grounds for an arrest, a suspect’s criminal history or past record of violence can be relevant and form part of the cumulative circumstances supporting an arrest: Storrey, at p. 250.
[42] The trial judge’s approach to the circumstances of the appellant’s arrest in this case is consistent with the law. Contrary to the appellant’s position, he was not only arrested because he was known to the police and because of his proximity to the scene of the robbery. There were many other factors that justified the arrest, including that he was seen making a U-turn near the driveway of the residence where the robbery occurred, that the police had seen no other vehicles on the road on their way to the scene and that they were told there were four armed suspects who had just left the house. With respect to the appellant, the police were not only aware of his previous record, which included violent offences, but that he was approximately 80 kilometers away from his known address. Accordingly, in my view, the trial judge made no error in finding that these cumulative circumstances objectively justified the appellant’s arrest. . R. v. Williams
In R. v. Williams (Ont CA, 2023) the Court of Appeal considered warrantless arrest/detention powers:[40] Police have the power to perform a warrantless search and seizure incidental to a lawful arrest in order to prevent any possible escape, protect themselves against any weapons that may be in the possession of arrested individual, and preserve evidence of the offence for which the person is arrested: James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 12th ed. (Toronto: LexisNexis, 2021), at p. 1230. In order for a search incident to arrest to be non-infringing from a Charter perspective, the arrest must be Charter compliant in the sense of having been lawful: R. v. Gerson-Foster, 2019 ONCA 405, at para. 101. The appellant argues that the arrest was unlawful, and therefore so was the search.
[41] Whether a detention – in this case an arrest – is arbitrary turns on whether it is lawful: Grant, at para. 54. An arrest is lawful, under s. 495(1) of the Code, where the arresting officer has reasonable grounds to believe that the person has committed an indictable offence. The arresting officer must subjectively have reasonable grounds on which to base the arrest and those grounds must be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.
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[43] Before reasonable grounds exist, “the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at para. 21, leave to appeal refused [1997] S.C.C.A. No. 571. There is, however, a limit to the extent of pre-arrest inquiry that police must conduct. “… [T]he obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 34.
[44] Whether a particular inquiry is one that an arresting officer must make is a context specific question. Relevant factors include the ease by which information could be obtained, whether something said by the suspect or on the suspect’s behalf gives rise to the need for further enquiry, and the urgency of the situation.
[45] In Gerson-Foster, at para. 88, Paciocco J.A. cited with approval a proposition drawn from the Court of Appeal for Saskatchewan’s decision in R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, at para. 26: “reliance by an arresting officer on erroneous information will not be objectively reasonable if, in the circumstances, ‘the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects’”.
[46] Paciocco J.A. went on, at paras. 89-90, to describe two situations where an inquiry was considered one that the circumstances reasonably permitted although it included looking beyond the information the arresting officer in fact had. First, he noted that:In Kossick, the arresting officer relied on information from another officer indicating there was an arrest warrant in place. The arresting officer proceeded with the arrest in non-urgent circumstances and without personally checking the electronic databases, including CPIC, which he had open in front of him and that would have revealed the arrest warrant had already been executed. In Kossick, the finding that the police could reasonably have made inquiries was not triggered by any reason to doubt that an arrest warrant was in place, but by the ease with which the status of the warrant could have been checked before depriving Mr. Kossick of his liberty. Second, he noted that the need for further inquiry could be triggered by something that the police are told: “In this case, the need for reasonable inquiry was triggered when Mr. Gerson-Foster informed Cst. Kim and other officers involved in his continued detention that the arrest warrant had already been dealt with in court”.
[47] On the other hand, clear evidence of a facial breach of the law will provide reasonable and probable grounds for arrest even where the possibility of a lawful excuse for the suspect’s behaviour exists, if investigating whether the lawful excuse applies would take time and effort and the circumstances are exigent. ....
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