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Criminal - Warrantless Arrest (2). Shanthakumar Estate v. Canada Border Services Agency
In Shanthakumar Estate v. Canada Border Services Agency (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here involving "whether the appellant law enforcement agency should be held civilly liable [SS: in negligence] for arresting the respondents based on inaccurate information obtained from the Canadian Police Information Centre (“CPIC”)".
Here the court considers the 'standard of care' respecting warrantless arrest, in this negigligence context:(b) The Requirements to Make an Arrest Under Criminal Law
[39] In this case, the criminal standard to be incorporated into the framework is the power to make an arrest. This power is found in s. 495(1) of the Criminal Code, which provides:495(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [Emphasis added.] It is common ground that, when Officer Seabrook and D.C. Gittings arrested the respondents, they were exercising their authority under s. 495(1)(a).
[40] Section 495(1)(a) requires a subjective belief (i.e., “he believes”) that the person to be arrested has or is about to commit an indictable offence. This belief must be based on “reasonable grounds”. See the discussion in R. v. Asante, 2025 ONCA 387, at para. 30.
[41] In the leading case of Storrey, the Supreme Court of Canada considered whether the arrest and detention of the accused was arbitrary, within the meaning of s. 9 of the Charter. Writing for the Court, Cory J. explained how the two components of s. 495(1)(a) work together, at pp. 250-251:In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [Emphasis added.] [42] These principles were more recently reaffirmed and discussed in R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, and R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575. Both cases make clear that the objective component of the analysis “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”: Tim, at para. 24; see also Beaver, at para. 3.
[43] Moreover, the Court reiterated that “the police are not required to have a prima facie case for conviction before making the arrest”: Tim, at para. 24; Beaver, at paras 6, 79. Rather, Jamal J. confirmed the related and obverse proposition in Beaver, at para. 6, that the police are not required to undertake further investigation to seek out exculpatory facts or rule out innocent explanations.
[44] Taken together, these cases from the Supreme Court of Canada have underscored the principle that the police need not have a prima facie case for conviction before making an arrest. This principle has been incorporated into the jurisprudence of this court in cases involving negligence claims against the police: see e.g. 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 50; Payne v. Mak, 2018 ONCA 622, at para. 24; and Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, at para. 10.
[45] However, it does not follow from this line of authority that the police are necessarily excused from making further inquiries before proceeding with an arrest based on CPIC information. As noted above, the objective component of the reasonable and probable grounds analysis is a contextual endeavour, “as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer”: Tim, at para. 24. Sometimes, an arrest based on CPIC information will only be objectively reasonable if the police first verify that information. Taking this extra step does not impose a duty on the officer to believe they had a prima facie case; it merely conforms to the demands of s. 495(1).
[46] The following cases from this court confirm that the lawfulness of an arrest may be undermined by the failure of the police to verify CPIC information before making the arrest. To reiterate, it will all depend on the circumstances faced by the officer at the time. It will be untenable to require this of police officers in many situations, especially where officer and public safety concerns are in play. But, as discussed below, this is not one of those cases.
[47] In R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, the appellant was arrested on a surety warrant (Criminal Code, s. 766) that was no longer valid, even though it remained on the CPIC system. The appellant told a number of officers that he was properly on release with a new surety. They failed to look into the matter in a timely fashion. In the meantime, the appellant was strip-searched, which led to the discovery of cocaine. The trial judge rejected the appellant’s arguments that his rights under ss. 8 and 9 of the Charter had been infringed. She found that, because of an error on the part of another judge, the surety warrant was in fact still valid when he was arrested. Consequently, the arresting officers had reasonable and probable grounds to make the arrest and maintain custody of the appellant.
[48] This court allowed the appeal and held that the trial judge erred in finding that the surety warrant remained in force. Addressing the issue of inaccurate CPIC information, Paciocco J.A. wrote, at para. 79:To be clear, the “facts” relied upon by the officer need not be true. “Reasonable grounds can be based on [an officer’s] reasonable belief that certain facts exist even if it turns out that the belief is mistaken”: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 40. This includes an honest but reasonably mistaken subjective belief that an arrest warrant relied upon to make an arrest is valid: R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, at para. 26. [49] The court accepted the Crown’s submission that reliance on mistaken CPIC information may still provide reasonable and probable grounds for an arrest. However, that will not always be the case. While the initial arrest was not based on the erroneous CPIC information, Justice Paciocco held that the appellant’s continued detention, after the appellant told the officers that he had a new surety, was unlawful. He found that the failure of the police to follow up on the appellant’s complaints that the surety warrant was no longer in force made his continued detention illegal. Relying heavily on the decision of the Saskatchewan Court of Appeal in R. v. Kossick, 2018 SKCA 55, 365 C.C.C. (3d) 186, Paciocco J.A. explained, at paras. 88-89:In Kossick, at para. 26, Caldwell J.A. held that 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”. I agree, and in my view, this principle applies not simply to the initial arrest, but to the continued detention where reasonably, the officers ought to make further inquiry into the basis for the arrest that supports the continued detention.
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. [Emphasis added.] [50] Justice Paciocco held that the need for a reasonable inquiry was triggered by the information provided to the police by the appellant. However, he recognized the reality that the police are not required to believe any claim that is made by an accused person in similar circumstances. The police may disregard information believed to be unreliable: see also Asante, at para. 30. Nonetheless, in Gerson-Foster, there was no reason to disbelieve the appellant and, in fact, the arresting officer did not disbelieve him. The parallels with this case are clear, especially with respect to the views expressed by D.C. Gittings about the sincerity of the respondents’ claims that the charges against them had been stayed.
[51] Reliance on inaccurate CPIC information was discussed again in R. v. Williams, 2024 ONCA 69, 169 O.R. (3d) 481. The appellant was released on a bail order that included a condition that he was not permitted to be in contact with his girlfriend unless she gave her written, revocable consent. She did. She emailed it to the officer-in-charge of the case. He, in-turn, uploaded the information onto Versadex, the electronic records management system used by the Toronto Police Service. However, the consent was not uploaded to CPIC.
[52] The appellant and his girlfriend were subsequently investigated under the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”). Officers on the scene communicated with officers at a nearby police station. An officer at the station, and at least one of the officers at the scene, were aware of the consent exception to the no-contact condition. Nonetheless, the appellant was arrested for breaching his bail condition. In the process of making the arrest, officers observed the appellant in possession of marijuana while in the driver’s seat of the vehicle with the engine turned on. A search of the vehicle pursuant to the CCA led to the discovery of a firearm.
[53] The trial judge dismissed the appellant’s application to exclude evidence under s. 9 of the Charter. He found that, even though the police were operating with incomplete information, in light of the exigent circumstances, the police had reasonable grounds to arrest the appellant for breach of the undertaking and the subsequent search incident to arrest was therefore lawful.
[54] This court dismissed the appeal from conviction. Writing for the court, Zarnett J.A. concluded that the police did not have reasonable grounds to arrest the appellant for breaching his undertaking. He found that this was not a case in which the police were required to investigate further before arresting; in fact, the police were in possession of the information on Versadex, which one of the officers at the police station had consulted to verify the complainant’s identity before the police moved-in to arrest the appellant. However, notwithstanding these failings, the police had reasonable grounds to arrest and search the appellant as part of their CCA investigation. Consequently, there was no breach and the evidence was not excluded.
[55] In his reasons, Zarnett J.A. helpfully set out the principles that bear on the issue raised on this appeal. As he said, at para. 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. [56] In the course of his analysis, Zarnett J.A. referenced the reasons of Paciocco J.A. in Gerson-Foster, and his reliance on the Kossick decision from the Saskatchewan Court of Appeal. Consistent with this approach, Zarnett J.A. said the following, at para. 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. [57] Accordingly, cases from this court support the proposition that, in certain circumstances, the police are required to verify CPIC information. A fact-specific inquiry is required.
[58] The appellant submits that this was not the state of the law when the respondents were arrested on the bridge in 2012. It contends that it would be unfair to hold the police to a higher standard that was developed after-the-fact. In support of this submission, the appellant relies on earlier cases from this court that suggest that no such duty exists. For instance, in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, Doherty J.A. found that a six-day delay in removing a bail condition from CPIC did not make an arrest unreasonable. See also R. v. Wilson, [2006] O.J. No. 4461 (C.A.).
[59] I do not accept the appellant’s contention that law was different in 2012 or that the police were subject to a lower standard at that time. As noted above, the question of whether an officer has reasonable grounds under s. 495(1)(a) has long been a fact-specific inquiry, since at least 1990 when Storrey was decided. At no point prior to Gerson-Foster and Williams had this court expressed a categorical view that a police officer is never required to verify a CPIC entry before acting on it, in terms of making an arrest or maintaining custody of a detainee.
[60] This is clear from Harris and Wilson themselves. In both Harris, at para. 13, and Wilson, at para. 2, this court addressed the reasonableness of relying on unverified CPIC information in a single sentence and simply agreed with the trial judges. When one looks to the trial decisions, it quickly becomes evident that the trial judges engaged in fact-specific inquiries and that they were not acting on the understanding that a police officer is never required to verify information from CPIC before making an arrest: R. v. Harris, 2006 ONCJ 106 (“Harris (ONCJ)”); R. v. Wilson, [2003] O.J. No. 4465 (“Wilson (SCJ)”).
[61] In both trial decisions, the trial judges referred to R. v. J.F.R., [1991] Y.J. No. 235 (Terr. Ct.), which held that an arrest based on unverified CPIC information could be unlawful: Harris (ONCJ), at para. 76; Wilson (SCJ), at para. 36. However, instead of establishing a new hard-and-fast rule that the police are not required to verify CPIC information, they distinguished J.F.R. on the facts. In Wilson (SCJ), at para. 39, the trial judge explained that, unlike J.F.R., the accused never told the officers that the CPIC information might have been incorrect. The opposite occurred in this case. Similarly, in Harris (ONCJ), the trial judge said, at para. 78: “I find that this case is distinguishable from the one before me. The CPIC information in that case was out-of-date by a substantially longer period, seven weeks.” This is roughly the same length of time that elapsed in this case.
[62] The above review of the jurisprudence indicates that, at all material times, the appellant was subject to the following three criminal law standards. First, in order to make an arrest under s. 495(1)(a), the police must have reasonable and probable grounds to believe a person has or is about to commit an indictable offence. Second, the requirement of reasonable and probable grounds does not oblige the police to have a prima facie case for conviction before making an arrest. And, third, whether the police must verify CPIC information that they use to form the reasonable and probable grounds for an arrest will depend on the circumstances. . R. v. Asante
In R. v. Asante (Ont CA, 2025) the Ontario Court of Appeal allows a Crown appeal, here from three acquittals of "three counts of possession of a controlled substance for the purpose of trafficking" based on a warrantless arrest:[28] ... A trial judge’s conclusion as to whether “the police had reasonable grounds to arrest an accused is reviewable on a standard of correctness, while the factual findings underpinning any such ruling are entitled to deference”: R. v. Bajich, 2019 ONCA 586, at para. 10, citing R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 41. Absent a palpable and overriding error, an appeal court applying that standard must therefore take the facts as found below and assess whether the judge was correct based upon those facts in coming to the decision they did. If the trial judge was incorrect in concluding that the evidence that he accepted failed to establish reasonable and probable grounds, his decision must be set aside, whether discrete reasoning errors occurred. I am persuaded that the trial judge’s conclusion that the police lacked reasonable and probable grounds was incorrect and I would therefore allow the appeal. I will address only those reasoning errors alleged by the Crown that assist in explaining where I believe the trial judge went wrong, or that I consider warrant mention. I will begin with a review of the basic principles that apply.
THE APPLICABLE LAW
[29] Section 495(1) of the Criminal Code describes the power of peace officers to arrest without warrant. It provides in relevant part:495(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence…. [30] The following principles govern the assessment of whether reasonable grounds to arrest without warrant exist:. The term “reasonable grounds” in s. 495(1) means “reasonable and probable grounds”: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 5.
. “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”: Fyfe, at para. 52, citing R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251.
. The Subjective Component - “To fulfill the subjective requirement, the officer must hold an honest belief that the person [they arrested] committed an offence [or was about to commit an indictable offence]. The officer ‘must [also] subjectively believe that there are reasonable grounds to make the arrest’”: R. v. Canary, 2018 ONCA 304, 361 C.C.C (3d) 63, at para. 21, quoting R. v. Saciragic, 2017 ONCA 91, at para. 16, leave to appeal refused, [2017] S.C.C.A No. 106.
. The Objective Component - “To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest”: Canary, at para. 21 (emphasis added), citing Storrey, at pp. 250-251, and R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; see also R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 24, and R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72.
. “The objective inquiry asks whether ‘a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest’” (footnote omitted): Canary, at para. 21, quoting Storrey, at pp. 250-251.
. “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”: Canary, at para. 22, citing R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47.
. The objective reasonableness of the grounds for arrest is based on the circumstances known to the officer at the time of the arrest, and not just on “the specific grounds as articulated by the officer”: Fyfe, at para. 35; Tim, at para. 24; Beaver, at para. 72.
. In making this assessment, the reviewing judge should bear in mind that reasonable officers do not “shut their eyes to relevant circumstances, ignore appropriate inquiries or fail to take into consideration exculpatory, neutral or equivocal information”: Fyfe, at para. 60, citing Chehil, at para. 33. However, “[t]he issue is not whether the officer could have conducted a more thorough investigation. The issue is whether … [the officer] subjectively and objectively had reasonable and probable grounds”: Bush, at para. 70.
. The reviewing judge must also consider that reasonable officers will consider all information available to them, and are “entitled to disregard only information which [they have] good reason to believe is unreliable”: Chehil, at para. 33, quoting R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, leave to appeal refused, [1997] S.C.C.A. No. 571. Having said this, police officers are generally entitled to rely on the authenticity of information received from other officers: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1167-1168.
. Further Guidance - The reasonable and probable grounds standard “does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly-based probability replaces suspicion”: R. v. Dhillon, 2016 ONCA 308, 355 C.C.C. (3d) 144, at para. 25; Canary, at para. 23.
. The applicable standard therefore deals with probabilities, unlike the reasonable suspicion standard, which deals with possibilities: see Chehil, at paras. 27-28. The reasonable and probable grounds standard “requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity”: R. v. Savage, 2011 SKCA 65, 86 C.R. (6th) 67, at para. 18.
. “[W]hen considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation”: Bajich, at para. 16; see also Canary, at para. 30.
. “[T]he fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored”: R. v. Lao, 2013 ONCA 285, 305 O.A.C. 346, at para. 59; see also Bush, at paras. 57-58. This is because even equivocal facts consistent with criminal conduct may logically increase the probability that a crime has occurred or is occurring. A constellation of such facts, viewed together, can logically and reasonably support a probable conclusion. To take a trite example, there may be alternative possible explanations for each of several indicia of impairment observed, but the improbability that a non-impaired person would innocently display multiple indicia of impairment simultaneously may nonetheless yield reasonable and probable grounds. . 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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