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Criminal - Warrantless Arrest (3). R. v. Fyke
In R. v. Fyke (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here from an acquittal for "assault causing bodily harm" against a police officer.
Here the court considers the law of warrantless arrest by a police officer:B. The legal framework
[17] Section 495(1)(a) of the Criminal Code authorizes police officers to make a warrantless arrest of a person who they believe on reasonable grounds has committed an indictable offence. As Cory J. explained in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51:[A]n 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. When one police officer directs another officer to make a warrantless arrest and/or conduct a warrantless search incidental to an arrest, the key question is whether the officer who ordered the arrest or search had the necessary reasonable grounds: see e.g., R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1166-67.
[18] Questions about the lawfulness of warrantless arrests arise most often in cases where the person who was arrested seeks a Charter remedy, arguing that their arrest was unlawful, and that it was thus arbitrary and violated the arrestee’s s. 9 Charter rights: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 54-56. It is ordinarily the arrestee’s burden to establish the unlawfulness of an arrest on a balance of probabilities, but the burden sometimes shifts to the Crown to establish on a balance of probabilities that an arrest was lawful: see R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at para. 75.
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