C. Grounds to Arrest and Detain
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 74-100 |
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There are two relevant standards to be considered in discussing the basis upon which individuals can be arrested or detained: reasonable grounds to believe, and reasonable grounds to suspect. The two standards share some common features, which is unsurprising since in each case "reasonableness" is in issue. The central difference between the two is the degree of certainty required, which is, of course, the difference between believing a thing and merely suspecting that thing. "Reasonable grounds to believe" is often referred to simply as "reasonable belief,"251while "reasonable grounds to suspect" is often referred to simply as "reasonable suspicion."252
These standards are used beyond the contexts of arrest and detention. Before issuing a search warrant, for example, a justice must be satisfied there are reasonable grounds to believe that an offence has been committed. Number-recorder warrants and warrants to plant
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tracking devices, on the other hand, can be issued based on reasonable grounds to suspect: this difference is justified on the basis that the latter warrants are less intrusive on privacy, and therefore can be more easily justified.253Similarly, a police officer may make a demand for breath samples for an approved screening device to determine whether a person has any alcohol in their system based on reasonable suspicion. However, a breathalyzer demand, to determine the actual concentration of alcohol in the person’s system, requires that the officer have a reasonable belief. Once again, the lower standard is justified in less intrusive circumstances: that is, failing the former test does not by itself provide evidence that the accused is guilty of an offence, whereas failing the breathalyzer does prove such guilt.
One would expect this same pattern to be maintained in the use of the standards in the arrest and detention context, and for the most part this is correct. Generally speaking, arrests are more intrusive than investigative detentions, and arrests depend upon reasonable grounds while investigative detentions only require reasonable suspicion.254
However, the division is not a perfect one. There is, for example, a specific arrest power relating to apprehended terrorist activity which depends in part only on reasonable suspicion.255More important (as will be discussed below in Chapter 3), courts are not always careful to ensure that the investigative detention power remains unintrusive, given the low standard upon which it is based.
Although the two standards share many common features, it is worth discussing them separately. In addition, see Appendices I and II, summarizing the kinds of facts that have been taken to establish either reasonable belief or reasonable suspicion in various cases.
Discussion of this subject in the caselaw can frequently end up reduced to the relatively mechanical question of whether particular facts do or do not justify reasonable belief. It is worth starting a discussion, there-
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fore, by observing the importance of the role that this requirement plays, as a protection of individual liberty interests against the state. As the Supreme Court has observed:
Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence.256There are some general observations that can be made about the "reasonable belief" standard.
First, note that the Court has said that "reasonable and probable grounds" can mean different things in different contexts.257Even in the arrest context, the standard applies both to arrests with a warrant and to those without, but it does not necessarily operate in exactly the same way in each case.
The Court has said that
In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.258
In the arrest context, the standard does not require so high a standard as a prima facie case.259However, it does require that the thing believed be more likely than not, that it be probable. At one point, the arrest section in the Code was specifically phrased to say that an officer must have
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reasonable "and probable" grounds, though that wording has since been simplified to "reasonable grounds." It has been settled that this change in wording was not meant to cause a change in meaning. Many courts, the Supreme Court among them, have continued to use the phrase "reasonable and probable" when speaking of the required grounds for arrest.260
The Supreme Court has noted in the search context that the removal of the word "probable" does not actually change the standard, because reasonableness by itself incorporates a probability requirement.261It has also held, again in the search context, that synonyms for "reasonable grounds to believe" include "reasonable probability" and "credibly-based probability."262Various other courts have applied these findings to conclude that the removal of the words "and probable" from the arrest provisions is of no consequence, and therefore that the "more likely than not" standard must still be met.263In Janvier, for example, the Saskatchewan Court of Appeal noted that the change was made as the Criminal Code was amended with the Revised Statutes, and observed:
"[A]nd probable" was dropped in the revision, but s. 4 of the Revised Statutes of Canada, 1985 makes it clear that no change in the law was effected:
The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts and portions of Acts repealed by section 3 and for which the Revised Statutes are substituted.264
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It has occasionally been suggested that "reasonable grounds" in the arrest context can be satisfied based on something less than probability,265but this interpretation arises from a failure to pay attention to context. The source of the confusion is a statement by the Supreme Court in Mugesera v. Canada (Minister of Citizenship & Immigration)266in which the Court said that reasonable grounds to believe required less than the civil standard of proof on the balance of probabilities. To apply this in the arrest context is to ignore that it is a statement about the standard in the Immigration Act for refusing entry to suspected war criminals, not a standard in the Criminal Code. Specifically, it is a statutory standard based on a treaty in which "the international community was willing to lower the usual standard of proof in order to ensure that war criminals were denied safe havens".267There is no basis for thinking that it overrides the statements in Storrey, Debot,268Baron v. Canada,269or other cases, which maintain the probability requirement.
Further, note that, in some sense, making any comparison between "balance of probabilities" for arrest and "proof beyond a reasonable doubt" for conviction is a little misleading. The information that can enter into forming a basis for reasonable and probable grounds need not be evidence that would be admissible in court as proof that the accused was guilty. Hearsay evidence can be used as a basis for forming reasonable grounds, for example.270Similarly, an accused’s past history of involvement in violent crimes can help inform a peace officer’s reasonable belief that the accused has committed an offence,271though for a trier of fact to rely on that same information to make the same inference at trial would be propensity reasoning, which is improper. An accused’s reputation can also contribute to forming reasonable grounds, though it could not alone be enough to create them.272Similarly, police are entitled to rely on eyewitness identifications without cautioning
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themselves against the frailty of such evidence in the way that a jury would be instructed.273It can also be observed that reasonable grounds are "transferable" between officers. This is more than saying that an officer can rely on hearsay: rather, the point is that more than one officer can act, provided that one officer has reasonable grounds. In Debot, for example, a search was conducted by one officer, after he was directed to conduct it by a prior officer. The issue, the Court held, was not whether the second officer could somehow rely on that direction as hearsay, creating reasonable grounds for him personally to search. Rather, the second officer was entitled to presume that the person who ordered the search had reasonable grounds to do so: the only legal issue was whether the first officer actually did have such grounds.274This approach is consistent with that taken to the "finds committing" arrest power (discussed in Chapter 4), where an officer who receives an accused from another officer is entitled to assume that the first officer genuinely did witness the accused commit an offence.
Note as well that the reasonable grounds must relate directly to the offence for which an arrest is to be made. In Janvier, for example, the Saskatchewan Court of Appeal considered whether the smell of burned marijuana in a truck gave...
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