The test for arrest is not whether the Crown can prove the crime but whether the officer had reasonable grounds for belief.
In R. v. Ash, 2010 BCCA 470, police stopped the accused for failing to wear a seat belt, an offence under BC’s Motor Vehicle Act. The officer noticed a jar in plain view on the front seat console which contained a liquid he believed to be hash oil but continued dealing with the seat-belt infraction.
The container was gone when he returned to the vehicle. He asked Ash to get out and arrested him for possessing a controlled substance. A search of the vehicle incidental to the arrest uncovered drugs, a knife, bear spray, a baton and a significant amount of money. Ash was charged with drug and weapons offences.
At trial in British Columbia Supreme Court Ash challenged the admissibility of the items found in his car on the basis that there were no reasonable grounds for the arrest and the search violated his rights under s.8 of the Charter.
The trial judge concluded that the arrest was lawful, admitted the evidence and convicted Ash of several offences.
Ash appealed to BC’s highest court, submitting that the arrest wasn’t reasonable. In Ash’s view, the officer did not have a subjective belief that he was in possession of the hash oil. The trial judge failed to apply the proper test for assessing the grounds for arrest by conflating the subjective belief of the police officer in the existence of reasonable grounds to arrest with the required objective standard.
Justice Chiasson, speaking for the unanimous court, first noted that s.495(1)(a) of the Criminal Code “authorizes a peace officer to arrest without a warrant when on reasonable grounds he or she believes an indictable offence has been committed or is about to be committed.” This provision requires the arresting officer to subjectively have reasonable grounds upon which to base the arrest. Those grounds must also be justifiable from an objective point of view – a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. Police are not, however, required to demonstrate anything more than reasonable grounds – a prima facie case for conviction is not needed before making the arrest.
In this case, it was apparent to the officer that Ash was the owner and driver of the vehicle and the hash oil container was in the front seat console beside him. The officer testified that he found Ash in possession of the hash oil. It was clear that he reasonably believed Ash was in possession of the drug.
“The issue is not whether the Crown would be able to prove possession,” said Chiasson, “but whether the officer had reasonable and probable grounds for believing he did so.”
The court also held that the officer’s subjective belief was objectively reasonable. It rejected Ash’s assertion that the reasonableness of the officer’s belief was to be assessed from the point of view of a neutral arbiter free of the predilections and biases of police, rather than a reasonable police officer in his shoes, with his experience. The proper approach in determining reasonable grounds, however, does include the experience and training of the police officer.
Ash’s appeal was dismissed.