R v Chapman, 2020 SKCA 11
1. A note on the burden of proof
[48] I begin this portion of the analysis by observing that, in the Voir Dire Decision, the trial judge misstated the burden of proof applicable to Mr. Chapman’s Charter claims. In that regard, the trial judge said:
[48] Mr. Chapman bears the burden of proving, on a balance of probabilities, that his Charter rights were violated (R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265).
[49] In most instances, that would be a correct statement of the law. In this case, it was not. Let me explain.
[50] Ordinarily it would be Mr. Chapman’s burden, as a person alleging a Charter violation, to prove that his arrest was unlawful. In this case, however, his Charter claim included an allegation that the search of his vehicle, which was conducted without a warrant, violated s. 8. Warrantless searches reverse the burden; they are presumptively unreasonable and can only be justified if they are authorized by a reasonable law and carried out in a reasonable manner. The Crown bears the burden of establishing the reasonableness of a warrantless search on a balance of probabilities.
[51] The Crown asserted that the search of Mr. Chapman’s vehicle was authorized by law because it was conducted incident to his arrest. In a case such as this, where the arrest upon which the Crown relies to justify a search conducted incident to it is subject to a s. 9 challenge, the Crown carries the burden on both of the overlapping s. 8 and s. 9 claims and must prove that the arrest was lawful. This is necessary in order to avoid inconsistent outcomes on the same issue because of conflicting burdens: R v Gerson-Foster, 2019 ONCA 405 at para 75 [Gerson-Foster]; see also R v Besharah, 2010 SKCA 2 at paras 32–35, [2010] 7 WWR 673; R v Lee, 2017 ONCA 654, 351 CCC (3d) 187.
[52] Accordingly, the Crown bore the burden of proving, on a balance of probabilities, both the lawfulness of Mr. Chapman’s arrest and the reasonableness of the search of his vehicle. The trial judge’s statement to the contrary was an error.
2. The lawfulness of the arrest: governing principles
[53] Section 495(1)(a) of the Criminal Code gives a police officer the power to arrest, without a warrant, a person “who has committed an indicatable offence or who, on reasonable grounds, [the officer] believes has committed or is about to commit an indictable offence”. A warrantless arrest made without the requisite “reasonable grounds to believe” is unlawful and violates s. 9 of the Charter. In this case, the question of whether the trial judge was correct to conclude that Mr. Chapman was not arbitrarily detained turns on the lawfulness of his arrest or, more precisely, whether, at the time of the arrest, Cst. Hancock had reasonable grounds to believe that Mr. Chapman had committed the indictable offence of possessing a controlled substance.
[54] While the existence of reasonable grounds for an arrest is grounded in factual findings, the issue of whether the facts as found by the trial judge amount, at law, to reasonable grounds is a question of law. The trial judge’s factual findings are entitled to deference, but the ultimate ruling on the reasonable grounds question is subject to review on a correctness standard. This requires the appellate court to engage in a de novo analysis and, where necessary, allows it to substitute its own view of the correct answer for a trial judge’s legal conclusion: R v MacKenzie, 2013 SCC 50 at para 54, [2013] 3 SCR 250 [MacKenzie]; Shepherd at para 20.
[55] When the lawfulness of a warrantless arrest under s. 495(1)(a) is challenged, the determination of whether the arresting officer had the requisite “reasonable grounds to believe” involves an assessment of whether that officer subjectively believed the individual arrested had committed or was about to commit an indictable offence, and whether the observations and circumstances articulated by the arresting officer(s) are objectively capable of supporting that belief. The question is whether an objective observer, standing in the shoes of the police officer with an awareness of the same circumstances, would conclude it was reasonable to believe the individual had committed or was about to commit an indictable offence: R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 at 250–251.
[56] As was noted in Shinkewski, the “reasonable grounds to believe” standard has been the subject of considerable judicial interpretation. It continues to be so, but Shinkewski is a good place to begin. Justice Caldwell conducted a thorough review of the governing jurisprudence, and summarized the principles that guide the determination of whether reasonable grounds for an arrest exist as follows (at para 13):
…
(a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective point of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeed reasonable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241;
(b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.));
(c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but may disregard information which the officer has reason to believe may be unreliable: R. v. Storrey;
(d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage, 2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and
(e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and, context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19.
[57] The reasonable grounds to believe standard is not overly onerous: R v Nahnybida, 2018 SKCA 72 at para 70, 365 CCC (3d) 209. This point was recently made in R v Todd, 2019 SKCA 36, [2019] 9 WWR 207 [Todd], where Schwann J.A. wrote:
[29] … [C]ourts have consistently cautioned trial judges not to conflate reasonable grounds for arrest with the trial burden. While reasonable grounds for arrest contemplates something more than mere suspicion, the Crown does not need to meet the stringent “proof beyond reasonable doubt” standard, the lesser prima facie case standard or even the more relaxed civil “balance of probabilities” standard. As this Court stated in R v Gunn, 2012 SKCA 80, 399 Sask R 170, albeit in relation to a breath demand, the “reasonable grounds to believe” standard is one of lesser probability, that is, the reviewing court must ask itself whether the inference drawn by the arresting officer was a reasonable one to have made at the time of arrest based on the circumstances known to the officer at that time. Determining whether reasonable grounds exist requires an assessment of the totality of the circumstances (see also: R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at 1168).
[58] Whether there were reasonable grounds to believe that an offence had been committed must be determined solely on the facts known to the arresting officer and available at the time the requisite belief was formed: R v Slippery, 2014 SKCA 23, 433 Sask R 183; R v Notaro, 2018 ONCA 449, 27 MVR (7th) 1. Where officers are acting as a team, it is not necessary that the arresting officer personally knows each and every fact necessary to establish reasonable grounds; the collective knowledge of the entire group is relevant: R v Labelle, 2016 ONCA 110. The “knowledge”, of course, must consist of objective facts supported by evidence: R v Quilop, 2017 ABCA 70, 353 CCC (3d) 525.
[59] A belief does not need to be correct in order to be reasonable; reasonable grounds can be based on an officer’s belief that certain facts exist, even if that belief turns out to be mistaken: Shinkewski; Gerson-Foster; Kossick; R v Churko, 2014 SKCA 41 at para 5, 433 Sask R 317; R v Valentine, 2014 ONCA 147, 316 OAC 302; R v Robinson, 2016 ONCA 402, 336 CCC (3d) 22. Furthermore, the inference drawn by the officer need not be the only inference that may be drawn from the available information, or even the most compelling one, as long as it is a reasonable inference to have drawn. The presence of other plausible, innocent explanations for police-observed behaviour does not automatically negate reasonable grounds to believe: R v Gunn, 2012 SKCA 80, [2013] 1 WWR 495; R v Ha, 2018 ABCA 233, at para 34, 363 CCC (3d) 523 [Ha].
[60] In Ha, Schutz J.A., writing for the majority, commented on the nature of the reasonable grounds to believe standard:
[30] These cases are heavily fact-driven. When comparing facts on a case-by-case basis, inevitably there will be quantitative and qualitative differences in the evidence. Nonetheless, there is only one applicable standard to be applied by a judge undertaking such an evidentiary review.
…
[36] In my view, the standard of credibly-based probability neither requires an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt nor even a prima facie case. It is self-evident that only information that a police officer has good reason to believe is unreliable can be disregarded, and equivocal or exculpatory information cannot be ignored.
[37] The material inquiry is not whether particular conduct is ‘innocent’ or ‘guilty’; the test is “whether a reasonable person in the position of the officer would conclude that there were reasonable and probable grounds”: R v Rajaratnam, 2006 ABCA 333 at para 22, 397 AR 126, citing Storrey.
[38] Therefore, unnecessary appellate attempts to re-articulate the standard laid down by the Supreme Court of Canada by using different words, or by reflecting on hypotheticals, or through the engagement of generalizations or “rules of thumb”, ought to be assiduously avoided because these sorts of pronouncements risk obscuring the law, not clarifying it.
[61] While the Court in Ha noted that the mere existence of a potentially innocent explanation for the constellation of factors observed by the arresting officer is not enough to negate reasonable grounds, Slatter J.A., writing a minority opinion but concurring in the result, also cautioned that courts must be careful when considering a set of observations that, individually, are all innocuous. In that regard, he wrote:
[84] In R. v Urban, 2017 ABCA 436, 358 CCC (3d) 55 five observations were said to support reasonable grounds to believe an offence had been committed. The Court reasoned:
43 The dictum in Chehil, at para 31, that innocuous factors that “go both ways” cannot support reasonable suspicion on their own but may when combined with other factors, should not be understood as endorsing a kind of alchemy whereby a group of severally innocuous factors somehow become grounds for reasonable suspicion when considered together. Individually innocuous factors do not support a reasonable suspicion when they are combined with other innocuous factors, unless one factor provides support to another or the innocuous factors, together, are mutually reinforcing: MacKenzie at paras 82 – 83. With that said, most of the factors relied on by Cst. Shule in this case were either neutral or “went both ways”.
Factors that are exclusively innocuous generally cannot be combined together to provide reasonable grounds to believe an offence has occurred. However, factors that can support both an innocuous and a suspicious conclusion can be “mutually reinforcing” or can be combined together to provide reasonable grounds, because the mere fact that an observation might have an innocent explanation does not prevent a police officer from having reasonable grounds to believe that it was sinister in nature. As noted in R. v Chehil, 2013 SCC 49at para. 31, [2013] 3 SCR 220, factors that “go both ways” can support reasonable grounds to believe an offence has been committed when combined together.
[62] While all of this makes clear that “reasonable grounds to believe” is not a particularly onerous standard, it is equally clear that it is a higher standard than “reasonable grounds to suspect” (emphasis added): MacKenzie at paras 84–85; R v Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456; R v Savage, 2011 SKCA 65 at para 18, 371 Sask R 283; R v Yates, 2014 SKCA 52, [2014] 8 WWR 489. It is important that a trial judge not conflate the two: R v Chehil, 2013 SCC 49, at paras 26–28, [2013] 3 SCR 220 [Chehil].
[63] In MacKenzie, Moldaver J. described the difference between reasonable suspicion and reasonable grounds to believe in this way:
[74] Parenthetically, I note that there are several ways of describing what amounts to the same thing. Reasonable suspicion means “reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” (Kang-Brown, at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). … As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27).
[64] In practice, the line that separates reasonable suspicion from reasonable belief is not always easy to draw. In R v Molnar, 2018 MBCA 61 at paras 25–35, 363 CCC (3d) 350 [Molnar], the Court said the difference between reasonable suspicion and reasonable grounds to believe is a difference in the degree of certainty necessary to meet each standard. As noted in MacKenzie, reasonable suspicion is generally framed in terms of possibility, while reasonable grounds to believe is generally framed in terms of probability.
[65] The jurisprudence is consistent that “probability”, in this sense, does not mean “balance of probabilities”, or even “more likely than not”. In R v Glendinning, 2019 BCCA 365, the Court said:
[7] Although the word “probable” or “probably” appears in some of the foregoing authorities, I do not read them as contravening the notion that the s. 495(1) standard is lower than the “balance of probabilities” standard in civil law. Counsel for the appellant referred us to what he said was a dictionary definition of “probable”, which encompasses many degrees of probability or even possibility:
Likely, most likely, odds-on, expected, to be expected, anticipated, predictable, foreseeable, ten to one, presumed, potential, credible, quite possible, possible, feasible. [Emphasis added.]
Consistent with the latter few synonyms, one often hears expressions such as “There is a 30% probability of rain.” The 1987 edition of the Compact Edition of the Concise Oxford Dictionary provides definitions that include “capable of being proved, demonstrable”; “having an appearance of truth,” and “that may in view of present evidence be reasonably expected.”
[66] There is no checklist or mathematical formula with a certain number of indicia that must be met before reasonable grounds to believe will be established: R v Bush, 2010 ONCA 554, 259 CCC (3d) 127. There is no single identifiable factor that marks the point at which reasonable suspicion crosses the threshold to become reasonable belief. In Molnar, citing R v McGuffie, 2016 ONCA 365, 336 CCC (3d) 486 [McGuffie], the Manitoba Court of Appeal applied the metric that a “strong connection” between the accused and the offence under investigation was necessary to establish the objective element necessary for reasonable grounds to believe.
[67] Distinguishing between reasonable suspicion and reasonable grounds to believe is a qualitative, not quantitative, exercise. While the gap between them is not necessarily wide, the two standards must remain distinguishable. Professor Terry Skolnik, in “The Suspicious Distinction Between Reasonable Suspicion and Reasonable Grounds to Believe” (2016) Ottawa Law Rev 223, 2016 CanLIIDocs 120, noted the importance of maintaining a distinction between the reasonable suspicion and reasonable grounds to believe standards, given the intrusive nature of police powers that may be exercised when the higher standard is met. In that regard, he wrote (at 247–248):
Powers requiring that the standard of reasonable grounds to believe be met are generally exercised because the objectively discernible facts available at the time suggest not only that there is a “probability of crime,” but rather, that the accused is probably guilty of the crime in question.
When police officers arrest a person they find committing criminal offences, or where objectively discernible facts demonstrate that a person probably committed an offence, the arrests are justified because the facts in question are sufficiently inculpatory to demonstrate that the accused is probably guilty. Furthermore, such a standard recognizes that officers must often make decisions in “volatile and rapidly changing” situations, when objectively inculpatory information is usually limited. The objectively discernible facts and subjective conclusions of the officer need not meet the standard required to establish a prima facie case against the accused, nor demonstrate the accused’s guilt beyond a reasonable doubt. Requiring such a standard not only ensures that police officers do not arrest people or conduct invasive searches, with all of the ensuing consequences, unless a high standard is met, but also recognizes the existence of objectively discernible inculpatory facts suggesting the guilt of the accused rather than his or her mere involvement in crime.
(Footnotes omitted)
[68] In R v Lotfy, 2017 BCCA 418, 357 CCC (3d) 516 [Lotfy], Frankel J.A. drew on what the Supreme Court of Canada said regarding the reasonable suspicion standard in MacKenzie and offered this summary of the standard to be applied to the consideration of whether reasonable grounds for an arrest existed:
[65] If [what Justice Moldaver said in MacKenzie were] modified to take into account the fact that the reasonable belief standard is more demanding than the reasonable suspicion standard, then those paragraphs would read:
[72] Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable [grounds to believe] will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at [a reasonable probability, not proof beyond a reasonable doubt, a prima facie case, or proof on a balance of probabilities]. Are the facts objectively indicative of the [reasonable probability] of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
[73] Assessing whether a particular constellation of facts gives rise to a reasonable [belief] should not – indeed must not – devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. [Emphasis in original.]
[69] Finally, while the jurisprudence is clear that the knowledge, training and experience of the police officer(s) involved is a relevant consideration in the determination of whether the reasonable grounds to believe standard has been met, deference is not always owed to a police officer’s view of the circumstances. Police testimony should not be seen as a “trump card” simply because officers have specialized training and relevant experience, nor should a police officer’s assessment of whether seemingly innocuous observations are indicative of criminal activity, based on that training and experience, be accepted uncritically: MacKenzie at para 64; Chehil at para 47. In Detention and Arrest, 2d ed (Toronto: Irwin Law, 2017) at 96 and 99, Professors Steve Coughlan and Glen Luther comment on some of the reasons behind the need for caution in this respect:
… [T]here can be no question, in some contexts, officer experience is relevant to the objective test.
The difficulty is that, carried too far, incorporating the experience of the particular officer into the objective test amounts to effectively eliminating the objective test, leaving only the subjective test in place. If all an officer’s claimed experience is to be relevant, then the objective test becomes very close to “would a person who believes what this officer believes believe what this officer believes”, which will always trivially be proven.
…
Further, there is a quite significant reason to be careful about claims of experience, and it is one that has not received attention in courts to date: a person can honestly and sincerely make the claim “this is my experience,” and yet be mistaken. Because of confirmation bias, people tend to notice instances that support their preconceived ideas and ignore those that do not; to see equivocal evidence as confirming the hypothesis to which they already adhere; and to test a hypothesis only by seeking further confirming instances, not by looking for disconfirming instances. As a result, if a person expects to see a pattern, they might see that pattern whether it exists or not.
(Emphasis in original, footnotes omitted)
[70] It is important to remember that reasonable grounds to believe is not intended to be a standard that hampers effective police work, or one that requires police officers to have an airtight case before taking action. The other side of that coin, however, is that given the intrusive nature of many police powers that can be exercised on the basis of reasonable grounds to believe, courts must be careful not to permit the standard to be watered down or interpreted in a way that effectively negates the difference between reasonable belief and reasonable suspicion.
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