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CASE LAW: Warrantless arrest not presumptively arbitrary

July 1, 2015  By Mike Novakowski

1454 words – MR

Warrantless arrest not presumptively arbitrary

Just because an arrest is made without a warrant does not mean it is necessarily arbitrary.

In <R. v. Hardy, 2015 MBCA 51,> the accused was arrested for failing to provide a roadside breath sample after repeated attempts to blow into an approved screening device (ASD). He had been driving a vehicle in the dark with the headlights off, did not stop at a stop sign, had glossy eyes and admitted to drinking two beers. There were also unopened cans of beer in his vehicle.


A demand to provide a breathalyzer sample was made at the police station. He refused and was held in custody overnight under <s. 497(1.1)> of the Criminal Code and released the following morning after a 12 hour detention. He was charged with refusing to provide a breath sample by means of an ASD.

In Manitoba Provincial Court Hardy argued that the decision to detain him overnight was as punishment for his refusal to provide a sample and not based on his level of intoxication. He submitted that police failed to comply with <s. 497> and therefore his detention was arbitrary under <s. 9> of the Charter. He wanted a judicial stay of proceedings under <s. 24(1)> of the Charter or, at least, the exclusion of his refusal as evidence under <s. 24(2)>.

The judge convicted him. She found that the decision to lodge Hardy in custody was justified under <s. 97> and that he had failed to establish on a balance of probabilities that his <s. 9> rights had been breached.

“Section 497(1.1) is not exhaustive and police clearly are to consider the totality of the circumstances related to an accused in assessing whether a public safety justification exists for detaining the accused,”she said.

“Here… they were dealing with a highly emotional, uncooperative person they believed to be intoxicated and acting in a manner inconsistent with his own best interests.”

Hardy appealed the trial judge’s dismissal of his Charter application to the Manitoba Court of Queen’s Bench. The appeal judge agreed with the trial judge and adopted her reasoning in determining that Hardy was properly detained for reasons of public interest pursuant to <s. 497(1.1)(a)>.

Hardy appealed the Charter ruling to Manitoba’s top court, arguing, among other grounds, that a <s. 9> breach resulted from his warrantless arrest and detention under <s. 497> and the onus was on the Crown to show his detention was not arbitrary. Further, he suggested the judge erred in finding his continued detention justified. He asserted that once detained, he should have been monitored to determine whether the initial conditions for detention continued to exist.

{Arbitrary detention}

An unlawful detention is arbitrary and therefore amounts to a <s. 9> violation. Said another way, a lawful detention is not arbitrary unless the law authorizing it is arbitrary. In <R. v. Grant, 2009 SCC 32>, the Supreme Court of Canada found this approach mirrored the <s. 8> jurisprudence in that a search must be authorized by law, the law must be reasonable and the search must be carried out in a reasonable manner.

Hardy went even further, analogizing that once it was shown that an accused was arrested and detained without warrant, the subsequent detention must be presumed arbitrary and the onus shifts to the Crown to establish that the detention was justified in the public interest. This is similar to the case law that once an accused has demonstrated that a search or seizure was warrantless it is presumed to be unreasonable and the onus shifts to the Crown to show it was reasonable.

The Crown contended that an accused bears the legal burden to establish, on a balance of probabilities, that there were no reasonable grounds for the detention.

The Manitoba Court of Appeal confirmed that the legal burden of proving an arbitrary detention, as in this case, lies with an accused.

“The accused has not convinced me that the circumstances of this case create a presumption of arbitrariness, thereby shifting the legal burden to the Crown such as in <s. 8> Charter warrantless searches or Charter waiver cases,” said Justice Cameron, speaking for the unanimous court.

“Unlike those exceptions, in this case the alleged breach is post-arrest, it does not involve circumstances where a breach may bear directly on the guilt or innocence of an accused, and it does not involve evidence statutorily required for proof of an offence.”

However, the court noted, the Crown may be required to explain, by adducing evidence, the reasons for detention.

<The evidential burden arises because it is the police officers who have the exclusive knowledge of the reasons for the detention.

In the context of s. 497(1.1), the Crown’s evidential burden is to adduce evidence as to the peace officer’s belief, on reasonable grounds, that detention is necessary on any of the grounds enunciated in the section. After considering all of the facts and circumstances, including the objective reasonableness of the police officer’s subjective belief and any alternative or improper motive on the part of the police, the court then decides whether a breach has been proven.

This is in contrast to placing a legal burden on the Crown which would dictate that, in the absence of any evidence having been called by the accused except for the fact that he was arrested without warrant, the Crown would bear the legal burden of proving compliance with s. 9 in every case where an accused has been detained> [paras. 42-43].

Here, Cameron found that because Hardy had shown that he was arrested without warrant and detained for 12 hours, the evidential burden did shift to the police/Crown to justify his detention pursuant to <s. 497(1.1)>.

Under <s. 497(1.1)> a number of factors must be considered in the decision to detain, including the public interest, establishing identity, securing and preserving evidence, preventing the offence from continuing or another offence from being committed, ensuring the safety and security of a victim and administrative concerns such as ensuring court attendance.

“The decision to detain is highly contextual,” said Cameron. “There are numerous factors that courts have considered in deciding whether to detain an arrestee.”

In this case, the judge did not err in determining that the detention was lawful under <s. 497(1.1)>. She found “the accused was in an ‘emotional and agitated state,’ ‘belligerent and uncooperative with police,’ that there was ‘evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated’, and the accused was ‘acting in a manner inconsistent with his own best interests’.”

Furthermore, she rejected Hardy’s evidence that the police threatened him with jail overnight if he did not comply with the breathalyzer demand. Ultimately, “the circumstances under which detention may be justified are varied, contextual and require individual assessment in each case.”

{Continued detention}

Hardy argued that, even if his detention was initially justified, police had an ongoing obligation to continually assess the situation to determine whether the conditions for his detention continued to exist or whether circumstances had changed, requiring he be released “as soon as practicable.”

The Crown, on the other hand, submitted that once the decision to detain had been made, the detained person must be brought before a justice within 24 hours under <s. 503>.

Cameron noted that there was no requirement for an ongoing and continuous reassessment process.

“To start, there is nothing in s. 497 that requires that an accused be monitored during the 24 hours that he or she is detained prior to taking him or her before a justice…

<Furthermore, if a person is deemed acceptable for release prior to the expiry of 24 hours, this does not now mean that s. 497(1) comes into play mandating release “as soon as practicable.” On the other hand, it does not mean that once it is determined that an accused person should be detained pursuant to s. 497(1.1), the detention must necessarily last until the accused is brought before a magistrate pursuant to s. 503. As previously mentioned, the police must make an individual assessment based on all of the circumstances in each case> [para. 63].

Release will depend on all of the circumstances and an accused may call evidence that the length of their holding or continued detention was arbitrary. However, simply showing they were held overnight may not be enough. Evidence such as the nature and frequency of contact an accused had with police may be required in the analysis.

The trial judge did not err in holding that the police decision to detain Hardy overnight was unreasonable. Hardy’s appeal was dismissed.

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