R v Brayton, 2021 ABCA 316
[41] Contrary to the appellant’s argument, the police officers did not arrest the appellant for an offence that did not exist. Rather, the appellant was arrested for possession of a prohibited weapon under the Criminal Code, and one of the issues for trial was whether the seized baton met either of the definitions of a prohibited weapon under the Regulations, as set out above.
[42] This is unlike Tim where the arresting officer believed a set of facts that turned out to be true (the officer correctly identified the substance) but was mistaken as to the law on those facts (the substance was not a controlled substance). Here, the officers believed a set of facts that turned out to be false (they thought what they saw was an expandable baton and after the arrest discovered it was a taser baton) but they were not mistaken as to the law on the facts they believed to be true. Some expandable batons are prohibited weapons; some tasers are also prohibited weapons.
[43] Second, the relevant time to assess the constitutionality of the arrest is at the time the arrest actually occurred, see R v Clayton, 2007 SCC 32 at para 48. “It is trite that the question of the existence of reasonable and probable grounds cannot be informed by what the police found subsequent to arrest, or on the basis of the whole of the evidence at the trial”: Ha at para 23; see also R v Biron, 1975 CanLII 13 (SCC), [1976] 2 SCR 56 at 75. Thus, a trier of fact must examine what was the subjective belief of the officer at the time and determine whether that belief was objectively reasonable at that point, not at some point after the fact.
[44] We are satisfied the trial judge made no error in law in her application of the legal standard and finding that the objective test for arrest was met in this case. Therefore, we find no merit in this ground of appeal.
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