Reasonable and Probable Grounds

• Author: Susanne Boucher & Kenneth Landa
• Pages: 143-160

143

1Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) [Hunter].

2Ibid. at 108, 114–15.

3 As opposed to other public safety interests, or national or border security interests:

see, e.g., R. v. Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.) at para. 32; R. v. Monney

(1999), 133 C.C.C. (3d) 129 (S.C.C.) [Monney] at 146–47.

The Supreme Court of Canada in Hunter v. Southam1set reasonable and

probable grounds as the minimum standard of belief required for a reason-

able power of search and seizure, for most cases.2There are, of course,

exceptions to this rule, but where the person’s expectation of privacy is undi-

minished, where the interests pursued are strictly “law enforcement vis-à-

vis an individual,”3and in the absence of exigent circumstances, the state

typically must have reasonable and probable grounds to believe that (1) an

offence has been committed, and (2) that evidence of that offence exists in

the place to be searched, in order for a search to be reasonable.

A. DEFINITION

The standard of reasonable and probable grounds is a fairly amorphous con-

cept, lacking a rigid mathematical formula for its determination. In Hunter

v. Southam, Dickson J. provided a useful working definition of the standard:

The State’s interest in detecting and preventing crime begins to prevail

over the individual’s interest in being left alone at the point where credibly-

chapter 5

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Reasonable and Probable Grounds

144 • Understanding Section 8: Search, Seizure, and the Canadian Constitution

based probability replaces suspicion. History has confirmed the appropriate-

ness of this requirement as the threshold for subordinating the expectation

of privacy to the ends of law enforcement.4

In R. v. Debot,5Wilson J. provided a further refinement of the standard

of proof required to meet the threshold of reasonable grounds for a search:

To establish reasonable grounds . . . the appropriate standard is one of “rea-

sonable probability” rather than “proof beyond a reasonable doubt” or

“prima facie case.” The phrase “reasonable belief” also approximates the

requisite standard.”6

As is evident from the excerpts above, the reasonable grounds standard

is one of probability rather than certainty. The threshold is not “proof

beyond a reasonable doubt” and is not even as high as “a prima facie case,”

which is a standard requiring proof of reliable evidence of guilt for all ele-

ments of the offence.7As the Supreme Court explained in R. v. Storrey:8

[T]he police need not establish more than reasonable and probable

grounds for an arrest. The vital importance of the requirement that the

police have reasonable and probable grounds for making an arrest and the

need to limit its scope was well expressed in Dumbell v. Roberts, [1944] 1 All

E.R. 326 (C.A.), wherein Scott L.J. stated at p. 329:

That [reasonable grounds] requirement is very limited. The police

are not called on before acting to have anything like a prima facie

case for conviction; but the duty of making such inquiry as the cir-

cumstances of the case ought to indicate to a sensible man is,

without difficulty, presently practicable, does rest on them; for to

shut your eyes to the obvious is not to act reasonably.

. . .

4Hunter, above note 1 at 114.

5R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.) [Debot]. See also R. v. Saunders

(2003), 181 C.C.C. (3d) 268 (Nfld. C.A.) [Saunders] and R. v. Law 2002 BCCA 594

at paras. 11–12.

6Ibid. at 213.

7 See R. v. Storrey, [1990] 1 S.C.R. 241 [Storrey] at 250–51; R. v. Stillman (1997), 113

C.C.C. (3d) 321 (S.C.C.) at 241 S.C.R. The “prima facie case” standard is one that

would provide sufficient reliable evidence of guilt for all elements of the offence if

unchallenged by the accused: see United States of America v. Sheppard (1976), 30

C.C.C. (2d) 424 (S.C.C.); Mezzo v. The Queen (1986), 27 C.C.C. (3d) 97 (S.C.C.);

Monteleone v. The Queen (1987), 35 C.C.C. (3d) 193 (S.C.C.).

8Storrey, ibid.