Even though an officer's subjective belief turns out to be correct, it does not follow that they acted on objectively reasonable grounds.
In R. v. Brown, 2012 ONCA 225, a police officer and his partner in a cruiser saw the accused near an intersection – a 6' 7" male wearing a distinctive green baseball cap – fully extend his right arm with a closed fist towards another person. The second person did not reciprocate in any way but turned around abruptly and quickly walked away.
Brown crossed the street, keeping his closed right hand by his side. Based on the way he held his hand, the officer's experience seeing hand-to-hand transactions and the area being known for crime, the officer believed Brown was concealing drugs in his hand. Brown was grabbed while on the sidewalk, arrested and searched. Cocaine, marijuana and a considerable amount of cash was found.
At trial in the Ontario Court of Justice Brown argued that his arrest and subsequent search violated his s. 9 Charter rights and the drugs should be excluded as evidence under s. 24(2). The judge disagreed. The officer testified he believed he had reasonable and probable grounds to arrest Brown based on the observations made from the police car.
Even though the arresting officer's partner, sitting beside him, did not see any of this "suspicious" behaviour, the judge nonetheless concluded there were "reasonable and probable grounds for (the officer) to investigate and detain (the accused) and to commence searching him in the manner that he did and then, given what he was finding (drugs), to arrest him."
In her view, police had "reasonable and probable grounds to pursue their investigation and eventually arrest (the accused)". Brown was convicted of possessing cocaine, possessing cocaine for the purpose of trafficking and possessing marijuana.
Brown successfully appealed to the Ontario Court of Appeal, alleging the arresting officer had no reasonable and probable grounds for the arrest. The court determined that the issue wasn't whether there were grounds to detain and eventually search Brown (an approach the trial judge took), but whether the officer had grounds to arrest him when he left his cruiser and physically confronted Brown on the street.
The court accepted that the officer honestly believed Brown possessed drugs and had attempted a hand-to-hand transaction. Further, it accepted that the officer's prior experience with drug dealing was properly taken into account in assessing grounds. However, the officer's subjective belief was still not objectively reasonable:
In our view however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter, demand that the belief be "reasonable," meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances.
The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers.
The (accused's) interaction with the person facing him on the city sidewalk does not, in our view, provide any objective basis upon which to believe that the two persons were engaged in a drug transaction. Nor does the fact that the two persons then walked away from each other make that interaction any more suspicious. (The officer's) evidence that the second person may have walked away from the (accused) because he or she caught sight of the police cruiser is speculation
The court noted other factors in concluding the totality of the circumstances did not provide an objectively reasonable basis for the arresting officer's belief:
The arresting officer's partner, who was in a better position as passenger to see Brown's conduct, did not notice anything, suspicious or not. Even if he had witnessed the movements described, the partner testified he would not have arrested Brown based on them. Instead, he would have spoken to Brown or briefly detained him for investigative purposes.
The arresting officer did not explain why the way Brown held his right hand was of some particular significance in the drug world. Without such an explanation, these actions "(did) not elevate the circumstances to reasonable and probable grounds to arrest."
The evidence supporting the officer's contention that this took place in a high crime area was thin. The officers were assigned to patrol this area as part of an anti-violence intervention strategy. Criminal activity, including drug activity, had apparently increased, however "the area targeted by the police activity was broad and the concerns were not particularized to drug activity or the specific location where these events occurred," the court noted. "There was no evidence that the corner where the arrest occurred was considered to be a high drug activity area."
Although the arresting officer honestly believed he had reasonable and probable grounds to arrest Brown, that belief wasn't objectively reasonable. The arrest was therefore unlawful and breached Brown's s.9 Charter right not to be arbitrarily detained.
In balancing the factors under the s. 24(2) framework, the court excluded the evidence.
Seriousness (of police conduct)
Although the officer honestly believed he had grounds to arrest, his actions nonetheless demonstrated "a significant disregard for the (accused's) right to be free from arbitrary detention." In holding that the officer's conduct pointed toward exclusion, the court stated:
(The arresting officer) did not turn his mind to the possibility of exercising police powers short of actual arrest. He would not agree that any further investigation was appropriate. On any reasonable view and, we add, the view of his partner, further investigation was entirely appropriate before resorting to the coercive actions of an arrest.
(The arresting officer) explained his perspective in these terms:
We're able to effect an arrest and release unconditionally if need be. Worst case scenario, if there is nothing further to investigate the individual can be released unconditionally. As in with this case, where there is further investigation warranted, it works out to a win-win situation.
It is apparent that (the arresting officer) sees arrest as the best tool when investigating crime. He arrested in this case, as he apparently routinely does, without considering other options because, in his mind, if it turns out there are no grounds for the arrest, the individual will be released. To (him), there is no harm in an arrest if it is brief. The officer does not appear to understand that arrest is a serious intrusion on the personal autonomy of the person arrested.
(The arresting officer's) failure to consider less intrusive means of investigating and his somewhat cavalier attitude towards the exercise of his powers of arrest make this s. 9 violation a serious one
Impact (of breach on accused's Charter protected interests)
This too supported exclusion. "The police interference caused by his arrest was neither fleeting nor technical," said the court. "The officers each grabbed the (accused's) hand or arm and made an arrest on a busy public sidewalk. The police action was highly intrusive of the (accused's) liberty and privacy interests."
The impact of the breach was still significant even if police could have briefly detained Brown for investigative purposes, despite there being insufficient grounds to arrest.
While we doubt that the grounds existed even for an investigation detention, we are prepared to assume that the officer had those grounds for the purposes of a s. 24(2) analysis. The existence of a basis to detain does lessen the negative impact of the improper arrest on the (accused's) rights, however it does not change the fact that he was physically restrained on a public thoroughfare by two police officers who had no grounds to do so. The interference remains significant even if some lesser interference was appropriate (para. 28).
Society's interest (in an adjudication on the merits of the case)
The evidence of the seized drugs was entirely reliable and essential to the Crown's case, which favoured its admission, but the police conduct was serious and there was a significant impact on Brown's liberty. Admitting the evidence would bring the administration of justice into disrepute.
Brown's appeal was allowed, the evidence excluded, his convictions quashed and an acquittal entered.