Officer's experience relevant in determining reasonable grounds

Mike Novakowski
January 04, 2013
By Mike Novakowski
There was no need for a five member panel of the BC Court of Appeal to review whether an officer's personal experience can support the objective grounds for an arrest; the law is already clear. In R. v. Wilson, 2012 BCCA 517 a police officer, whose patrol duties involved drug investigations and speaking frequently with addicts, was told by a barber of increased drug activity near his shop in Vancouver's Downtown Eastside.

There was no need for a five member panel of the BC Court of Appeal to review whether an officer's personal experience can support the objective grounds for an arrest; the law is already clear.

In R. v. Wilson, 2012 BCCA 517 a police officer, whose patrol duties involved drug investigations and speaking frequently with addicts, was told by a barber of increased drug activity near his shop in Vancouver's Downtown Eastside. Two unnamed drug addicts also told him drugs were being sold near a slushie machine in a convenience store near the barbershop.

At about 9:15 pm, the officer and his partner looked through the store window and saw Wilson standing by the machine holding open a black, flat, leather pouch. They saw a woman hold out cash to Wilson, who put his hand in the pouch. An older, dishevelled man, who appeared like a drug addict, stood to Wilson's left.

Believing he was observing a drug transaction, the officer entered, announced police and arrested Wilson for possessing narcotics for the purpose of trafficking (PPT). A search incidental to arrest turned up 10 flaps of heroin and five rocks of crack cocaine in the pouch. Wilson also had a drug scale and $74.75 in cash. He was charged with PPT heroin and cocaine.

In BC Provincial Court Wilson sought to have the evidence excluded, submitting police lacked reasonable grounds to arrest and search him, therefore violating his ss. 8 and 9 Charter rights.

The trial judge found the arrest lawful under s. 495 of the Criminal Code (CC) and the search incidental to that arrest. The arresting officer subjectively had grounds to believe he had seen a drug transaction taking place and the totality of the circumstances objectively established reasonable grounds.

Police received tips, saw a woman holding out money to Wilson and then saw him reach into a black leather pouch. The people were not near the cash register and a person with the appearance of a drug addict was standing nearby. The officer had also previously seen drug sellers in the Downtown Eastside carry drugs in leather pouches. The judge stated:

The fact that the information they had prior to making their observations about a specific convenience store and a specific place in that convenience store, that being the slushie machine, is relevant. The fact that the officers have seen on previous occasions drug sellers or drug possessors carrying their drugs in leather pouches, like change purses, the officer said that he had seen that on at least 20 previous occasions. The fact that he saw a person facing (the accused) and reaching out with her hand with money in it and him reaching into his pouch; those are relevant factors.

The fact that they were all distanced by some 18 feet from where the cash register and so on was is also consistent with them not being in there for the purpose of buying something from the store. Then the second male... was standing right there and exhibiting symptoms and an appearance familiar to the officer of a drug-addicted person in that area. All, in my view, taken in totality, provide an objective basis, a reasonable basis for the officer's belief that he was witnessing a drug transaction.

Thus, a reasonable person standing in the shoes of the officer would have concluded reasonable grounds existed. Wilson was convicted.

Wilson challenged the ruling to the BC Court of Appeal, arguing the judge erred in relying on the arresting officer's personal experience in determining if the necessary objective grounds for arrest existed and whether they were objectively reasonable.

Personal experience

Under s. 495(1) CC a peace officer is authorized to arrest a person without a warrant if they believe, on reasonable grounds, that he/she has committed or is about to commit an indictable offence. Wilson submitted that an officer's experience should only be relevant in establishing whether there were subjective grounds for an arrest, not whether such grounds were objectively justified.

Wilson further suggested that when experience is considered as part of the objective component, it increases the opportunities for racial-profiling and renders the warrantless arrest power unconstitutional. In his view, the "reasonable person" test for the objective component should be a "reasonable police officer" placed in the factual circumstances of the arresting officer, void of considering an officer's personal experience. The court rejected these arguments.

The Supreme Court of Canada and other appellate courts have repeatedly held that there is a two-part test for considering whether an officer has reasonable grounds to justify a warrantless arrest. First, they must subjectively have reasonable grounds for the arrest. Second, those grounds must also be justifiable from an objective point of view.

The objective component requires a consideration of whether a reasonable person standing in the shoes of the police officer would also conclude that there were reasonable grounds for the arrest. An arresting officer's personal experience has consistently been held to be a relevant consideration as to whether their subjective belief to arrest is objectively justified.

"In my view... the (Supreme Court of Canada) articulated the reasonable person test as 'a reasonable person standing in the shoes of the police officer' and 'a reasonable person placed in the position of the officer'," said Justice MacKenzie.

"The use of the definite, rather than the indefinite article, signals the arresting officer's personal experience and training are relevant to whether there were objective grounds to arrest under s. 495 of the Criminal Code."

Objective grounds

The appropriate standard for reasonable grounds is one of "reasonable probability" or "reasonable belief," rather than proof beyond a reasonable doubt or a prima facie case. Wilson submitted that, even considering the officer's experience, there were not sufficient objective grounds to arrest him but this argument was also dismissed.

The tips received by the officer and his observations at the convenience store supported a finding that there were objectively reasonable grounds for the arrest. The information described drug transactions there. Although the tips were from unproven sources, their lack of reliability was offset by the specificity of the information and the conformity of the officer's observations.

The trial judge correctly found the officer had the subjective grounds to arrest, which were objectively reasonable. The arrest and the incidental search were lawful and the drugs admissible.

Wilson's request for a five judge panel to hear his appeal was denied and his appeal dismissed.

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