“Transferred Reasonable Grounds”

From time to time, the issue arises where one officer, oftentimes a superior officer, directs another officer to arrest someone, to search a car, and so on.  This has become commonly known as “transferred reasonable grounds” in police culture.  The other officer may, at times, be uncertain of this direction.  After all, doesn’t the officer making the arrest have to be the same one that forms the reasonable grounds to do so in the first place?

This issue, inter alia, was discussed in an older case, R. v. Debot 1986 ONCA 994 (R. v. Debot (1989) 2 S.C.R. 1140):

“Frequently, in modern times, the particular police officer making an arrest or conducting a search is not the only officer concerned in the investigation out of which the search or arrest arose. It seems to me to be unrealistic and incompatible with effective law enforcement and crime prevention, when a police officer is requested by a superior or fellow officer to arrest or search a person suspected of the commission of a crime and to be fleeing from the scene, to require that police officer to obtain from his or her superior or fellow officer sufficient information about the underlying facts to enable him or her to form an independent judgment that there are reasonable grounds upon which to arrest or search the suspect.”

The police officer who has reasonable grounds for believing a suspect is arrestable is the one who decides that the suspect should be arrested. That officer may or may not make the actual arrest. If another officer makes the arrest, he or she is entitled to assume that the officer who ordered the arrest had reasonable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. The original officer who formed the reasonable grounds to believe must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view, such that a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the officer need not demonstrate anything more than reasonable grounds.

This is often the case in dynamic situations, where time, environment, and situations do not allow for a discussion on the reasonable grounds for the arrest (e.g. domestic incident, moving vehicle).  If time and other factors are not an issue, a discussion of the reasonable grounds may be more favourable to a potential defence argument on the lawfulness of the arrest.

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