The suspicious distinction between reasonable suspicion and reasonable grounds to believe.

AuthorSkolnik, Terry

CANADIAN CRIMINAL LAW DISTINGUISHES between the thresholds of "reasonable suspicion" and "reasonable grounds to believe" required in order for police officers to lawfully arrest persons, conduct certain forms of searches, and to obtain warrants. Officers wishing to lawfully exercise these powers must satisfy the requisite legal standard, or risk violating individuals' constitutional rights with the ensuing possibility of exclusion of evidence. Unfortunately, recent attempts to clarify differences between the two thresholds is complex to articulate, confusing, and impracticable.

This article examines the fundamental difficulties related to the current theoretical and practical distinctions between both standards. These issues are important for legal practitioners and judges interpreting whether the standards have been reached and whether constitutional rights have been violated, and, as a theoretical and pragmatic basis upon which to interpret the scope of new police powers.

It is argued that the current confusion between both standards arises from the faulty usage of notions of "possibility" and "probability." Furthermore, in identifying new police powers, courts have sometimes imposed legal standards which cannot safely or reasonably be met. Ultimately, I will attempt to provide a more coherent theoretical basis for distinguishing between both standards based on comprehensible pragmatic considerations. As a result, I hope to not only articulate a more simple and meaningful distinction between both standards based on certain overarching considerations, but which will also assist in identifying which standard ought to apply in identifying new police powers.

LE DROIT CRIMINEL CANADIEN etablit la distinction entre les criteres que sont les > et les > afin que les agents de police puissent legitimement exercer leurs pouvoirs de proceder a des perquisitions et des arrestations ou d'obtenir des mandats. Les agents desireux d'exercer ces pouvoirs en toute legalite doivent satisfaire a la norme legale exigee, sans quoi ils risquent de porter atteinte aux droits constitutionnels des personnes concernees et risquent par la meme occasion de voir rejeter les elements qu'ils comptaient presenter en preuve. Helas, les recentes tentatives visant a clarifier les differences entre ces deux criteres sont difficiles a formuler, elles portent a confusion et sont a peu pres irrealisables.

Dans cet article, l'auteur examine les difficultes fondamentales inherentes aux distinctions actuelles theoriques et pratiques entre les deux normes. Ces questions sont importantes tant pour les avocats de la pratique que pour les juges charges d'interpreter dans quelle mesure ces criteres ont ete respectes et si des droits constitutionnels ont ete violes, et enfin sur quelles assises theoriques et pragmatiques il faut interpreter la portee des nouveaux pouvoirs conferes aux policiers.

Je soutiens que la confusion qui entoure les deux normes decoulerait de l'emploi errone des notions de > et de >. Qui plus est, en identifiant les nouveaux pouvoirs policiers, les tribunaux ont impose, a quelques reprises, des normes juridiques qui ne pourraient etre respectees de maniere raisonnable ou securitaire. En dernier lieu, je tenterais de presenter un fondement theorique plus coherent afin de distinguer entre les deux normes a partir de considerations pragmatiques comprehensibles. Par consequent, j'espere formuler une distinction non seulement plus simple et plus significative entre les deux criteres fondes sur certaines considerations preponderantes, mais une distinction qui permet en outre d'identifier la norme applicable lorsqu'il s'agit de determiner les nouveaux pouvoirs conferes aux policiers.

CONTENTS I. Introduction II. Development of the Standards of Reasonable Suspicion and Reasonable Grounds to Believe A. Initial Development of Reasonable Suspicion and Reasonable Grounds to Believe in England and Canada B. The Importance of Distinguishing between Reasonable Suspicion and Reasonable Grounds to Believe in Canadian Law III. The defining Characteristics of Both Standards A. R v Kang-Brown B. R v Chehil C. R v MacDonald IV. Current Problems with the Standards of Reasonable Suspicion and Reasonable Grounds to Believe A. The Distinction between Possibility and Probability May not Be Useful B. It is Futile to Require a Standard that cannot be Reasonably Met without Unreasonable Consequences V. Proposal for Reforming What Distinguishes Reasonable Suspicion From Reasonable Grounds to Believe VI. Conclusion I. INTRODUCTION

If there is one legal distinction which is wrought with confusion and difficult to articulate, it is the distinction between the "reasonable suspicion" and "reasonable grounds to believe" standards in Canadian criminal law. In a series of recent decisions, the Supreme Court of Canada (SCC) has made a welcome attempt to clarify the differences between the two thresholds, which must be distinguished for several crucial reasons.

Firstly, criminal law legislation and common law police powers both distinguish between reasonable suspicion and reasonable grounds to believe as the legal thresholds required to lawfully undertake certain actions that would normally infringe on individuals' constitutional rights, such as detaining, (1) arresting, (2) or searching individuals (3) or places. (4) The two standards are also used as the requisite thresholds to obtain warrants. (5) As a result, failing to meet the required threshold can render a search abusive, (6) an arrest unlawful and arbitrary, (7) and warrantless entry into a dwelling house illegal. (8) Furthermore, it can lead to the exclusion of incriminating evidence with ensuing acquittals, (9) in addition to justifying the merit of civil actions brought against police officers for constitutional rights violations. (10)

Secondly, in cases where the SCC recognizes the existence of a common law police power, it must also determine which legal threshold should apply accordingly. (11) Because the Court has confirmed the existence of a number of common law police powers over the past 20 years, (12) adequately distinguishing between the standards will become increasingly important. (13) In an era rife with new challenges that both governments and law enforcement agencies are facing, the judiciary will likely continue having to do this. (14)

Unfortunately, it remains difficult to distinguish between the standards adequately and articulate their differences meaningfully. The current distinctions are theoretically and practically confusing, and furthermore, are likely difficult to understand for those applying them on a regular basis. In this article, it will be argued that the current distinction between reasonable suspicion and reasonable grounds to believe is in need of crucial revision for three important reasons.

Firstly, the current framework, which serves to distinguish between the two standards, relies on a false dichotomy between possibility and probability, and tends to treat each concept as if they were mutually exclusive. Notably, it has been explained that the possibility that a state of affairs might occur characterizes the legal threshold of reasonable suspicion, whereas the probability that a state of affairs will occur characterizes the standard of reasonable grounds to believe. (15) Yet, it will be demonstrated that these distinctions between "possibility" and "probability" are largely futile, notably because any ex post facto judicial assessment of whether or not the requisite standard was met would focus principally on the issue of probability given the extent of information available to officers in the circumstances. (16) As a result, the notion of possibility is inevitably collapsed into that of probability, rendering considerations of whether it was possible that something might occur a generally fruitless inquiry.

Secondly, certain overarching considerations that not only meaningfully distinguish between the two standards, but also assist in determining which standard should apply to an emerging police power, have, in some respects, been ignored or obscured. As a result, courts have concluded that certain common law police powers exist, but require a standard that ignores these considerations and cannot reasonably be met in the circumstances.

Lastly, although the SCC has noted that the standards of reasonable suspicion and reasonable grounds to believe are supposed to be rooted in common sense, they may nonetheless be difficult to apply for police officers, lawyers, and judges. As a result, clarification that seeks to simplify matters should be welcome. (17)

The structure of this article is as follows. In the first part, the historical development of the thresholds of reasonable suspicion and reasonable grounds to believe in the United Kingdom and Canada are discussed, in order to demonstrate why it is increasingly important to distinguish between the standards adequately. In the second part, the ways in which courts have interpreted both standards, in addition to the recent developments in Canadian case law, are canvassed. Third, I explain the current problems with the distinctions between reasonable suspicion and reasonable grounds to believe. To conclude, I present a simpler and more meaningful approach to distinguishing between the standards of reasonable suspicion and reasonable grounds to believe. Furthermore, I provide certain overarching considerations that guide the respective standards, and may also prove helpful for determining which standard ought to be used for emerging police powers. As will be seen, these overarching considerations adequately draw a simple line between the two standards, are not complicated to articulate, and can easily be applied by police officers and interpreted by lawyers and judges.


  1. Initial Development of Reasonable Suspicion and...

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