Reasonable and probable grounds to arrest

Can v. Calgary Police Service [2014] A.J. No. 1112 (C.A.) – an Alberta Court of Appeal has examined the threshold to be met for the “reasonable and probable grounds” standard, or to us officers after the 1985 era, the “reasonable grounds” standard. This will serve as a reminder to us experienced officers, while at the same time, hopefully I can assist the recruits in furthering their understanding of this concept.

The Supreme Court of Canada set out the governing test in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250-1:

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.

Section 495(1) of the Criminal Code stipulates that a peace officer may effect a warrantless arrest under a number of scenarios. One, set out in s. 495(1)(a), is that a “peace officer may arrest without warrant … a person who … on reasonable grounds … he believes has committed … an indictable
offence”.

But what degree of certainty is required before peace officer X can be held to believe that A has committed an indictable offence? If 100 percent certainty is not necessary, what lesser degree of certainty is required before one can conclude that X believes A has committed an indictable offence? Is it enough if X believes that it is more likely than not — fifty-one percent degree of certainty — that A has committed an offence? Is it enough if X is moderately certain — a degree of certainty approaching fifty percent — that A has committed an indictable offence? Is it enough if X suspects that A has committed an indictable offence?

Will the state allow a peace officer to arrest a person only if a fact pattern exists which allows a reasonable person to conclude that it is at least more likely than not that the person has committed a criminal offence? Professors Coughlan and Luther, in Detention and Arrest 76-78 (2010) are satisfied that this is the standard for a lawful warrantless arrest in Canada:

In the arrest context, the standard does not require so high a standard as prima facie case. However, it does require that the thing believed be more likely than not, that it be probable. … Many courts, the Supreme Court among them, have continued to use the phrase “reasonable and probable” when speaking of the required grounds for arrest. … It has occasionally been suggested that “reasonable grounds” in the arrest context can be satisfied by something less than probability, but this interpretation arises from failure to pay attention to context. The source of the confusion is a statement by the Supreme Court in Mugesera v. Canada … in which the Court said that reasonable grounds to believe required less than the civil standard of proof on the balance of probabilities. To apply this in the arrest context is to ignore that it is a statement about the standard in the Immigration Act for refusing entry to suspected war criminals, not a standard in the Criminal Code … There is no basis for thinking that it overrides [the Supreme Court’s] statements in Storrey, Debot, Barren v. Canada, or other cases which maintain the probability requirement.

A fifty-one percent degree of certainty is the starting point of the high degree of certainty sector of the spectrum. …

This point on the scale measuring likelihood of criminality — a high degree of certainty — would accord considerable weight to the liberty value. At the same time, settling on this measure as opposed to a less onerous standard, impairs to some extent the community’s ability to vigorously pursue law enforcement objectives. Most jurists would be reluctant to adopt such a demanding standard for a lawful warrantless arrest.

The Supreme Court of Canada has never stated with precision the degree of certainty that justifies an arrest under s. 450(1)(a) of the Criminal Code (revised to s. 495(1)(a) CC). Generally, speaking, it has been content to tell us what it is not.

A review of the Supreme Court of Canada’s opinions on warrantless arrest demonstrates that there are only two possible answers to how certain must the arrestor and the objective evaluator be before an arrest under s. 495(1)(a) of the Criminal Code is lawful. It is either a moderate or a high degree of certainty. There is no reason to argue that the extremely low, low or very high degrees of certainty have any judicial support.

First, the arrestor must believe, at the time the arrest was made, that there is (a) a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence. This is a subjective assessment and a question of fact. …

The second condition exists if a reasonable person, with the arrestor’s training and experience and aware of the facts known to the arrestor, would conclude that (a) there is a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence.

The existence of the second condition is a question of law and an objective evaluation. …

And as the Honourable Thomas W. Wakeling stated in this decision:

But I am troubled by the fact that the Supreme Court of Canada has not clearly articulated the standard it favors for a warrantless arrest. …”

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