Corroboration and grounds to arrest based upon an informant’s information

A recent case, R. v. Day 2014 NLCA 14, out of the Newfoundland and Labrador Supreme Court – Court of Appeal, has prompted me to post a summary of some judicial decisions that may be of interest to the officers that handle informants (human sources) and then use that information to formulate reasonable grounds to arrest the suspect.  I won’t get into the facts of the case; instead I will discuss the points and issues that were brought up in the appeal that are of importance to us in the field.

No discussion on informants can begin without first mentioning the value of informants to the enforcement of criminal law in this country that has long been recognized and respected (R. v. Scott, [1990] 3 S.C.R. 979, pp. 993-994; and R. v. Leipert, [1997] 1 S.C.R. 281, para. 9). However, informant information can be variable in its reliability, and care must be taken by the police not to act on it without thought or indifference. This was recognized by the Supreme Court in R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421; and R. v. Greffe, [1990] 1 S.C.R. 755. In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval Lamer C.J.’s adoption of Martin J.A.’s statement in R. v. Debot (1986), 30 C.C.C. (3rd) 207 (Ont. C.A.), a case involving the lawfulness of a warrantless arrest, as the test for assessing confidential informer’s information:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search. … Highly relevant … are whether the informer’s ‘tip’ contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

Justice Sopinka went on to say, at page 1456, that:

“[h]earsay statements from an informant can provide reasonable and probable grounds to justify a search” but warned that evidence of a tip from an informer by itself is insufficient to establish reasonable and probable grounds.”

He concluded at page 1457 that:

“[t]he reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances'”, and said “[t]here is no formulaic test as to what this entails. Rather, a court must look to a variety of factors including: 1) the degree of detail of the ‘tip’, 2) the informer’s source of knowledge, and 3) indicia of the tipster’s reliability”.

Debot directs that police must attempt to confirm details in an informant’s tip. However, in doing so, the court said it is not necessary to confirm each and every detail, although the level of verification required may be higher in cases where the informant’s own credibility cannot be assessed (page 1172). Both Garofoli (paragraph 67) and Debot (pages 1168 to 1171) stressed that the credibility of the informant and the source of his or her information are very important.

The next thing to be examined in the context of arresting the suspect based upon the information received by an informant is the case which each and every officer should have imprinted in their memory: R. v. Storrey, [1990] 1 S.C.R. 241. In Storrey, at para. 17 the Supreme Court of Canada interpreted what is now paragraph 495(1)(a) and held that the reasonable grounds for arresting a person without a warrant encompasses both 1) a subjective belief on the part of the police that the person has committed or is about to commit an indictable offence, and 2) that the subjective belief must be “justifiable from an objective point of view.” The Storrey test, as it has become known, was summarized by Welsh J.A. of the NFCA at paragraph 19 of R. v. Warford, 2001 NFCA 64, 207 Nfld. & P.E.I.R. 263:

The proper test is twofold: (1) did the police officer, from a subjective perspective, have reasonable and probable grounds for arresting [the accused], and (2) could a reasonable person in the position of the officer conclude there were reasonable and probable grounds for the arrest?

The present case, Day, cited several cases that I will summarize as follows:

  • Provincial Court Judge Fradsham made a good logical point in R. v. Hilts, [1997] A.J. No. 516, (1997) 203 A.R. 161 at paragraph 30:

“The “anticipated pattern” in this case was the accused driving to High River in a particular motor vehicle. The fact pattern occurred. However, can one say that those two facts give any credence to the allegation of criminal activity by Mr. Hilts? In my view, if the police place reliance on an informer’s “tip” because some facts in that “tip” have been verified by them, then that “verified” information must be material to the criminal activity alleged by the informant. Otherwise, the exercise of verification is really an exercise in bootstrapping. Unverified allegations of crime are not bolstered because they are made with verified allegations of unrelated, innocent facts.”

  • A similar view was set out by Allen J. in R. v. Mori, [2012] O.J. No. 2837, 2012 ONSC 3433 at paragraph 56:

“They confirmed Mr. Cutajar’s identity, his residential address, and his telephone number. Although accurate, that information does not assist with predicting a criminal offence.”

  • And finally, the dissenting reason given by Justice Malcolm Rowe in this case:

The Crown has conceded that what the police had was insufficient to properly obtain a search warrant for Mr. Day’s residence. They now assert it was sufficient to arrest him. Must not the grounds for laying hands on a citizen, hand cuffing, searching and confining him be greater than for entering his house? Must they not at least be equal? I would say “yes”.

There you have it.  Some things to consider if you are basing your RGs (or RPGs for the older officers out there) to arrest based upon source information.

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