Unlawful arrest based on bare tip and neutral observations

R. v. Basanez and Quilop 2017 ABCA 70 – police received an anonymous tip the accused was involved in cocaine trafficking. No further details were provided regarding the accused or the informant’s past involvement with police, if any. There was no indication whether the informant’s information was first-hand or hearsay. Police placed the accused under surveillance and observed interaction with another individual suspected of drug trafficking based on a similarly undetailed, uncorroborated tip. The following day, police observed the accused have brief meetings with two individuals. After the first meeting, the individual exited the accused’s vehicle after two minutes carrying an object the size of a baseball. The second meeting involved the accused enter the apartment of another person whom the police suspected of drug trafficking, having been informed by another anonymous tipster a year prior that this other person was engaged in drug trafficking. However, once again there was no evidence with respect to the reliability of this information or the credibility of the informant. Furthermore, there was no evidence that this other person was ever charged with trafficking in drugs or that he had been convicted in the past of trafficking in drugs.  The accused exited the apartment carrying a small pouch. Police arrested the accused hours later, seizing 30 bags of cocaine and crack cocaine, cash and cell phones in a search incident to arrest of the accused’s vehicle. The trial judge determined police had reasonable grounds to believe the accused had committed an indictable offence. The arrest was ruled lawful and the accused was convicted. The accused appealed.

The appeal court discussed that there are two fundamental requirements for a lawful arrest. The first requirement is fairly straightforward. The peace officer who arrests a person or the peace officer who decides and directs than a person ought to be arrested must subjectively believe that the person to be arrested has committed or is about to commit an indictable offence. The second part of the test is not so straightforward. The grounds upon which the peace officer arrests the person must be objectively justifiable in the sense that a reasonable person in the position of the peace officer, with all of his or her training and experience, must also be able to come to the conclusion that there were reasonable grounds for the arrest or detention.

It was the lead police investigator who decided that the accused should be arrested, notwithstanding that it was the commanding officer (the officer in charge that day) who actually gave the instruction to make the arrest to the arresting officers. The court found that it is the peace officer who decides that an arrest be made who must have reasonable and probable grounds, even if that officer does not perform the actual arrest: R. v. Debot, [1989] 2 SCR 1140 at 1166-1167, [1989] SCJ No 118.  So, the trickier issue on this appeal was whether the lead investigator had reasonable and probable grounds to arrest the accused.

The only evidence which directly supported a credibly-based probability that the accused was committing the offence was the hearsay evidence of the anonymous informant that the accused was dealing in drugs. That evidence, together with the evidence of behaviour which may have indicated some form of in-person transactions, might have formed the basis of credibly-based probability. However, the surveillance information consisted of three observations over two days and only two of the observations were said by police to be consistent with illegal drug activity. The observations were of extremely short duration. They took place in a matter of minutes. Not much was observed. There was no evidence of the accused using a cellphone. There was no observation of a hand-to-hand exchange. There was no evidence that anything transpired in the residence or the vehicles the accused was observed to have entered and exited. Furthermore, there was nothing connecting the persons the accused met or the residence he visited to known drug dealers. And there was no evidence of evasive or counter-surveillance tactics by the accused, for example.

The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. The court disagreed. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer. So, although hand-to-hand exchanges which, in the officer’s experience, may be typical of drug transactions, there are also many innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information about the individuals or the building, for example, the fact of a hand-to-hand exchange does not elevate the circumstances to the objectively reasonable level necessary to justify detention, without more.

The ABCA, therefore, concluded that the trial judge erred in finding that the grounds for the accused’s arrest were objectively justifiable, and hence, the absence of reasonable and probable grounds for the arrest meant the accused’s arrest was arbitrary and therefore unlawful under section 9 of the Charter. There being no basis for the arrest, the search of the vehicle was not a search incidental to a lawful arrest and involved a breach of section 8 of the Charter.

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