L'arrestation sans mandat - revue des règles applicables

R v Simmons, 2023 PECA 4 

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[18]           The Supreme Court of Canada recently restated the required considerations when a peace officer is performing an arrest without warrant.  In Tim the court stated as follows:

 

[23]   Sections 495(1)(a) and (b) of the Criminal Code provide that a peace officer may arrest without warrant "a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence" or "a person whom he finds committing a criminal offence".

 

[24]   The applicable framework for a warrantless arrest was set out in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. A warrantless arrest requires both subjective and objective grounds. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The police are not required to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 28; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73).

             

[19]           In Tim the Supreme Court recognizes the centrality of R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.  Both decisions make it clear the two-stage subjective/objective test ensures and promotes “an additional safeguard against arbitrary arrest” (Storrey, para. 16).

 

[20]         Tim and Storrey make it clear the trial judge must address the presence of objective reasonable and probable grounds based on the information known to the police officer at the time of the arrest.  Contemporaneity is required.  It is important to refrain from drifting forward in time to consider any evidence that arises after the arrest.  The trial judge must be careful to only consider the evidence the officers had at the time of the arrest.

 

[21]            It is also important to consider the contextual background of the investigation and to refrain from looking at the grounds in isolation.  Such arguments are often made to the trial judge as noted by the court in R. v. Bush, 2010 ONCA 554, wherein the court stated as follows:

 

            [55]      In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Censoni, at para. 43; also Jacques, at para. 23. …

 

[22]            The trial judge in this case was aware of the risk of isolating each individual fact or dealing with the facts provided by the Officer in a piecemeal fashion.  The trial judge recognized the fragility of such an approach specifically in the decision (voir dire decision, p. 59, line 20 through 34).

 

[23]           The trial judge was alive to the appropriate approach to follow when considering objective reasonableness of the arresting officer’s subjective belief.  The decision referred to R. v. Canary, 2018 ONCA 1786, which specifically refers to the following passage:

 

[30]        This argument disregards the correct approach to considering the objective reasonableness of the arresting officer's subjective belief. Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.

             

 

[24]           The appellant asserted the vast majority of evidence available for review by the trial judge was evidence that related to Mr. Gallant.  The appellant argued that as Mr. Simmons showed up late in the investigation and was not referred to by the confidential human sources, this undermined the objective reasonableness of the Officer’s decision to arrest both Mr. Simmons and Mr. Gallant. 

 

[25]           I disagree.  The appellant’s position is another example of the “individual silos” argument discussed in Canary.  The Officer is not precluded from taking a contextual approach to the evidence.  As previously stated, the investigation had been proceeding incrementally.  It began with confidential source information.  It progressed to surveillance.  This was buttressed by a warrant for a tracking device on Mr. Gallant’s mobile phone.  The tracking provided a pattern of travel out of province which was supported with contemporaneous confidential human source information.  All of this background could be considered when the phone of Mr. Gallant left the province in the registered vehicle of Mr. Simmons on the date consistent with the confidential information that Mr. Gallant would be seeking to replenish his drug supply from a source in New Brunswick.  In addition, the Officer noted that during the COVID-19 pandemic interprovincial travel of short duration was difficult.  Checkpoints were set up to monitor persons coming into the province.  Self-isolation requirements were in place.  The Officer was aware of Mr. Simmons’ prior convictions for drug trafficking offences.  The Officer believed both Mr. Gallant’s phone and Mr. Gallant were in Mr. Simmons’ vehicle.  This was confirmed at the COVID checkpoint in P.E.I. when the vehicle returned from New Brunswick and prior to the arrest.

 

[26]         It is not appropriate to “silo” information into individual pieces.  The appropriate approach is to review the facts known to the officer at the time of arrest to determine if the factual context as a whole seen through the eyes of a reasonable person with the same knowledge and experience as the officer provide the requisite objective grounds to effect the arrest.