Arrest of accused held unlawful where crucial information that provided reasonable grounds was obtained from an earlier unconstitutional arrest

R. v. Brown 2014 BCSC 1872 – a British Columbia Supreme Court has examined s. 495 CC in the sense of information gathered as a result of one unlawful arrest being used to formulate grounds of a subsequent arrest (the ole adage of the “fruit of the poisonous tree” doctrine).

In short, after a suspicious meeting with the driver of the white Cadillac, who was unknown to the investigation until that time, and one of the two male parties who the Drug Unit had been surveilling and gathering supporting information on for some weeks, the driver of the white Cadillac was arrested. The lead investigator did not believe there were reasonable grounds for arresting the driver of the white Cadillac, but another officer arrested the driver of his own accord and for his own reasons (I will not discuss them here). Suffice to say, the court ruled that one suspicious meeting, without more, did not create a credibly-based probability that an individual was involved in an indictable offence. The fact that the white Cadillac was reported to have been associated with drug activities was not sufficient to further evidence to meet the reasonable grounds threshold. Form that unlawful arrest, cash and heroin were found in the car.

From surveillance and source information, the meeting between the driver of the white Cadillac and one of the two targets, and in part based on the cash and heroin found in the white Cadillac, the two other parties were also arrested that day. Those two parties were the actual targets of the investigation.

The Crown argued that the latter two arrestees did not have standing to challenge the presence of the cash and heroin found in the white Cadillac as a reasonable ground for the respective warrantless arrests of each of them. The Crown said that the respective Charter rights of both men were not engaged by the search of the white Cadillac. A Charter right is a personal right and “can only be made by the person whose Charter rights have been infringed”. In other words, in the case at bar, the search of the white Cadillac engaged only the first arrestee’s Charter rights.

The judge said in the case at bar, the officer relied on the heroin and cash found as part of the first male’s unlawful arrest as the determinative ground to justify the arrest without warrant of the other two males. Unlawfully obtained facts or evidence cannot be used as the determinative basis for establishing reasonable grounds for an arrest:

“If the Court were to rule that the cash and heroin could be considered as giving rise to “reasonable grounds”, then, as an investigative technique, the police would be tempted to conduct unlawful and warrantless arrests in the hope of finding evidence and then using such evidence as reasonable grounds under s. 495 of the Criminal Code to arrest an individual without warrant. The Court cannot signal such techniques as acceptable conduct.”

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Filed under Arbitrary Arrest or Detention

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