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[83] In assessing whether the police breached s. 9 of the Charter in arresting a person, the following considerations apply:
(1) an arbitrary arrest includes an unlawful arrest: R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353, at paras. 55, 57
(2) an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1)
(3) although it has been observed that “the onus is on the Crown to show that the objective facts” rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49 (CanLII), [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215 (CanLII), at para. 14
(4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50 (CanLII), [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1
(5) in other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 S.C.R. 100, at para. 117
(6) the fact “that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable”: R. v. Biccum, 2012 ABCA 80 (CanLII), at para. 21; see also R. v. Luong, 2010 BCCA 158 (CanLII), at para. 19; Chehil, at para. 47
(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588 (CanLII), 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32 (CanLII), [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660 (CanLII), at para. 116
(8) that said, reasonable grounds is about “probabilities” (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47
(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers “always be correct, but that they always be reasonable” United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012)
(10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280 (CanLII), at para. 31; R. v. Loewen (2010), 2010 ABCA 255 (CanLII), 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21 (CanLII), [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)
(11) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 – the officer is not required “to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations”: Chehil, at paras. 34, 67
(12) an officer’s training and experience may provide “an objective experiential…basis” for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73
(13) a court reviewing the existence of reasonable grounds concerns itself “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13 (CanLII), at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original)
(14) provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.
[84] Not infrequently, the police act upon hearsay information received from a confidential informant. Within limits, they are entitled to do so:
(1) general principles can be derived from these authorities:
Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.
(Debot (OCA), at pp. 218-9)
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In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
...
In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater.
(Debot (SCC), at pp. 215, 218)
…
I conclude that the following propositions can be regarded as having been accepted by this court in Debot and Greffe [(1990), 1990 CanLII 143 (SCC), 55 C.C.C. (3d) 161 (S.C.C.)].
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
(a) the degree of detail of the "tip";
(b) the informer's source of knowledge;
(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.
(R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.), at p. 191)
(2) in considering whether informant information is compelling, a number of factors are considered including the degree of specificity or detail in the tipster’s account, the currency of the information, whether the informant has first-hand or direct knowledge of the relevant facts, etc:
First, as to the detail or particularity of the informer's information, the fewer the details the greater the risk of innocent coincidence or a false tip: Regina v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.) at 490; Regina v. Sutherland (2001), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont. C.A.) at 239; Regina v. Haskell, 2004 ABQB 474 (CanLII), [2004] A.J. No. 804 (Q.B.) at para. 90. A lack of detail plunges the tip into the range of rumour, gossip and speculation: Regina v. Zammit (1993), 1993 CanLII 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont. C.A.) at pp. 120-1; Regina v. Woodworth and Woodworth, [2006] N.S.J. No. 26 (S.C.) at para. 57, 63. Greater precision enhances reliability: Regina v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) at 170; Lewis, at p. 489; Regina v. Shoghi-Baloo, [1999] O.J. No. 325 (C.A.) at para. 3 (leave to appeal refused [1997] S.C.C.A. No. 297). A tip can be compelling even if it contains some inaccuracies: Regina v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.) at p. 123.
…
Second, dealing with the informer's source or means of knowledge, the reliability of an informer's information is diminished by an absence of any sense as to how the tipster acquired his or her information: Zammit, supra at 120-1; Regina v. Traverse(2003), 2003 NLCA 18 (CanLII), 175 C.C.C. (3d) 537 (Nfld. & Lab. C.A.) at para. 2-6, 20; Regina v. Deol (2006), 2006 MBCA 39 (CanLII), 208 C.C.C. (3d) 167 (Man. C.A.) at para. 16; Woodworth, at para. 57, 63; Regina v. MacDonald, [2005] O.J. No. 551 (S.C.J.) at para. 18.
(R. v. Baldwin (2007), 2007 CanLII 41427 (ON SC), 52 C.R. (6th) 13 (Ont. S.C.J.), at paras. 49-50)
(3) in assessing the reliability of the tip, the credibility of the informant is important including consideration as to whether he or she is an untested source or has a track record of providing accurate information to the police in the past (R. v. Markiewicz, 2014 ONCA 455 (CanLII), at para. 2; R. v. Soto, 2011 ONCA 828 (CanLII), at paras. 8-9), the tipster’s own criminal antecedents, whether any benefit was sought or promised or actually given in exchange for the information, and, whether the informant is anonymous or identified to the police as in the latter case the source is exposed to the jeopardy of being charged with public mischief or obstruction of justice for deliberately misleading the police: R. v. Noorali, 2010 ONSC 2558 (CanLII), at para. 40 (affd 2012 ONCA 589 (CanLII)); Florida v. J.L., 529 U.S. 266, 274-5 (2000)
(4) while effective corroboration of a confidential informant’s information need not confirm all details of his or her account, and need not confirm the commission of the alleged crime itself (R. v. Caissey, 2007 ABCA 380 (CanLII), [2007] A.J. No. 1342 (C.A.), at para. 23 (affd 2008 SCC 65 (CanLII), 2008 S.C.J. No. 66, at para. 2)), there should be confirmation of something(s) material within the communicated information as opposed to routine or commonly available facts
(5) in order to protect a confidential informer’s identity, the police are not required to disclose the informer’s identity or information that might tend to disclose his or her identity: Leipert v. The Queen (1997), 1997 CanLII 367 (SCC), 112 C.C.C. (3d) 385 (S.C.C.), at p. 397; Farinacci et al. v. The Queen (1994), 1994 CanLII 123 (SCC), 88 C.C.C. (3d) 1 (S.C.C.), at pp. 53-9; Regina v. Scott (1991), 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300 (S.C.C.), at pp. 312-5; Regina v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.), at pp. 399-400
(6) accordingly, in criminal proceedings, the state may provide to the court and the accused only redacted information from a confidential informant in an effort to protect his or her identity – in these circumstances, while that may be the limit of what is available by way of disclosure, and recognizing that such measures as a judicial summary of the redacted material may be impossible without compromising the informant’s identity (R. v. Beckford, 2014 ONCA 66 (CanLII), at para. 4), there may nevertheless be options in some cases:
The police and the Crown were under a legal obligation to protect the identity of confidential informants: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 15. Defence counsel did not suggest at trial that he could bring his case within the innocence at stake exception to the confidential informant privilege, thereby entitling him to access to the informant's identity. This is the only recognized exception to that privilege: R. v. Leipert, at paras. 20-22. Nor did trial counsel challenge the legitimacy of the confidential-informant claim advanced by the Crown. Counsel did not contend that any of the editing was unnecessary or otherwise improper. He did not ask the trial judge to examine the unredacted information, review the editing process and perhaps order further disclosure or provide judicial summaries of the redacted contents: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1460-61.
Crown counsel at trial also did not ask the trial judge to consider the unredacted version of the information before determining the merits of the appellant's s. 8 claim. Crown counsel was content to have the validity of the warrant and, hence, the reasonableness of the search determined on the contents of the redacted information. As observed in Leipert, at para. 38:
The issue before the trial judge was whether there were reasonable grounds for the issuance of the warrant. If the Crown wished to limit its defence of the reasonableness of the warrant and subsequent search to particular grounds, it was entitled to do so. At the end of the day the task of the judge was to make a ruling on reasonableness on the basis of the information relied on by the Crown. [Emphasis added.]
In summary, the Crown was content to have the reasonableness of the search determined exclusively on the basis of the redacted information. The defence did not challenge the validity of the confidential informant claims, seek access to the identity of those informants nor challenge the editing done by the Crown to protect the identity of those informants. In my view, these positions taken on the voir dire have significance in the s. 24(2) analysis.
(R. v. Blake (2010), 2010 ONCA 1 (CanLII), 251 C.C.C. (3d) 4 (Ont. C.A.), at paras. 15-7)
(7) where the Crown proceeds in its argument on the basis of the redacted information alone to support the existence of reasonable grounds, it cannot purport to rely upon a submission that the police in fact had more grounds in the undisclosed material: Blake, at para. 29; R. v. Dhillon (2010), 2010 ONCA 582 (CanLII), 260 C.C.C. (3d) 53 (Ont. C.A.), at para. 63
(8) in any event, determining whether or not, on the totality of circumstances, the police had reasonable grounds based on a confidential informant’s tip is largely a fact-driven exercise with case-to-case comparisons of modest assistance at best – that said, the facts of the present case do not align with the authority relied upon by the defence (R. v. Daley, 2014 ONSC 1079 (CanLII) – no vehicle licence plate number provided (para. 18), no belief in informer’s past reliability (para. 25), no corroboration (para. 26)), falling more so into the range of circumstances identified in other cases: Noorali; R. v. Caravaggio, 2012 ONCA 248 (CanLII), at para. 4.
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