Lorsqu'un accusé conteste la légalité de son arrestation, il incombe à la Poursuite de démontrer que les policiers avaient des motifs raisonnables pour procéder à son arrestation

R. v. Besharah, 2010 SKCA 2

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[32]  This passage clearly implies that in the context of a challenge by an accused pursuant to s. 9 of the Charter, the burden is on the police to demonstrate that they had reasonable and probable grounds for the arrest.

 

[33]  The logic of this reasoning has been assumed or applied by some trial court judges in the context of the issue raised by this case. In R. v. Gill, 2008 SKQB 445, Dufour J. summarized his understanding of the principles to be applied as follows:

[25]      Generally, a warrantless search is prima facie unreasonable (Hunter v. Southam…) and the onus is on the Crown to establish that the search was reasonable. Here, however, the Crown is relying on the common law power of search incident to arrest. In R. v. Cloutier, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, the Supreme Court held that search incident to arrest is an exception to Hunter v. Southam, supra, and no independent reasonable and probable grounds are required to justify the search itself. As clarified in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, the Supreme Court held at para. 13:

…the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds….

And in R. v. Golden…, the Supreme Court stated at para. 98:

…a common law search does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself….

The scope of the power of search incident to arrest is not unlimited and will be addressed in some detail later in this decision. It is sufficient at this point in the analysis to note that the Crown still must establish, subjectively and objectively, that there were reasonable and probable grounds to arrest the accused. If it does not, the subsequent search of the accused’s vehicle will be unlawful. (At paras. 25-26, emphasis added.)

 

[34]  Similarly, in R. v. Deacon (2006), 2006 CanLII 63689 (ON SC), 146 C.R.R. (2d) 140 (Ont. Sup Ct. of Justice) the Crown had argued that since the search was incident to an arrest, the burden was on the accused to demonstrate the s. 8 violation. Murray J. found that this “surprising proposition” had no merit. He elaborated as follows:

[42]      Apart from circumstances where there is a preliminary onus on an accused to establish that state conduct interfered with objectively reasonable privacy interest, there can be no doubt that the burden is on the Crown to demonstrate that a warrantless search is reasonable for purposes of s. 8 of the Charter. Where the Crown seeks to justify a search on the basis that it is incident to arrest and take advantage of the exception to the general rule that warrantless searches are prima facie unreasonable, it must adduce evidence that brings the state actor within the exception. It must prove that the arrest was lawful and that means proving that the arrest complies with the requirements of the Charter and that there was no arbitrary arrest within the meaning of the Charter. It must also prove that the search was conducted in a manner that is consistent with the power of search incident to arrest…

[43]      In a case of a search incident to arrest involving alleged violations of both sections 8 and 9 of the Charter, because the burden of proof is on the Crown to prove a lawful arrest as a condition precedent to a lawful search incident to arrest, then, as a practical matter, if the Crown proves a lawful arrest it will have rebutted the allegation of a s. 9 violation. Although generally an accused has the burden to prove on the balance of probabilities a violation of his s. 9 rights, where there is a search incident to arrest and the Crown has the burden of proving the reasonableness of the search, the Crown must prove that the arrest was lawful and therefore that there is no s. 9 violation. Mr. Justice Hill came to a similar conclusion in R. v. McKennon, [2004] O.J. No. 5021 (S.C.J.) at para. 33.

 

[35]  In summary, it is my view that the logic of the approach taken in other cases by the Supreme Court of Canada in other circumstances applies with equal force to the circumstances of the case before us. Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police. Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination.  This logic applies where the police have justified a search of the accused as a search incident to arrest, whether or not the accused has also challenged the lawfulness of the arrest pursuant to s. 9 of the Charter. While it is true that search incident to a lawful arrest is an exception to the general rule that a warrantless search is prima facie unreasonable, it is for the Crown to establish that the pre-requisites for the exception have been satisfied.