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Fleeing police part of constellation of grounds


December 7, 2015
By Mike Novakowski

Running from the police can be one piece of the totality of circumstances in justifying an arrest, New Brunswick’s highest court has ruled.

In R. v. Bourque, 2015 NBCA 68 a complainant reported that her adult drug addicted son, who lived with her, stole about $50 from her purse that morning and she wanted him evicted. Two police officers met with the son and confronted him with the theft complaint and drug addiction allegation.

He admitted to the theft and acknowledged that he had “a drug problem.” He told police that he buys his drugs from someone named “Pete” in the “Elmwood Drive area.” The son eventually consented to leave his mother’s residence and one of the officers drove him to a friend’s home.

The mother subsequently called police and told the second officer that (1) her son is a regular drug user; (2) she believed him to be a drug addict; (3) she was convinced he stole the money from her wallet in order to get drugs; (4) she checked her cell phone and understood from the text messages received and sent by her son that an imminent drug sale/purchase transaction was scheduled in the vicinity of the McDonald’s restaurant on Morton Avenue; and (5) the individual supplying drugs to her son was described as a short, slim or skinny, bald man.

As a result of this information, the officer formed the belief that an indictable offence (drug trafficking) was about to be committed in the vicinity of the restaurant. He immediately went to the area and saw Bourque, who was the only person on the scene who matched the complainant’s description.

The officer parked his marked police vehicle a few feet from Bourque and began to get out. Bourque looked at him, turned around and walked towards the McDonald’s drive-through area. The officer ordered, “Stop, you’re under arrest,” but Bourque ran away. The officer caught him, threw him to the ground and placed him under arrest.

Bourque was searched and police found several items of evidence including a marijuana joint in a cigarette package, a cell phone, hydromorphone pills, a knife, banknotes hidden in his socks and bundles of banknotes (totalling several thousand dollars) hidden under his clothing and taped to his waist. Bourque was charged with possessing hydromorphone for the purpose of trafficking.

A New Brunswick Provincial Court judge found Bourque’s arrest to be unlawful under s. 495(1)(a) of the Criminal Code because it was not based upon reasonable grounds.

“I am not persuaded that the peace officer had reasonable and probable grounds to believe that this specific individual was about to commit an offence,” said the judge. “In my view, the circumstances of his arrest were not sufficient to conclude the arrest was lawful.”

Since the arrest was unlawful, Bourque’s s. 9 Charter rights were breached and the search that followed was unreasonable under s. 8. The evidence was excluded under s. 24(2) and Bourque was acquitted.

The Crown appealed the acquittal to the New Brunswick Court of Appeal because, in its view, the trial judge erred in finding that Bourque’s Charter rights were infringed and that the evidence ought to be excluded.

Chief Justice Drapeau, speaking for the court, agreed with the Crown that the trial judge erred in determining whether reasonable grounds for the arrest existed.

In most instances, the prosecution’s case on the issue of arrest lawfulness is based upon a constellation of circumstances which, individually, may be of little or no probative value, but whose cumulative effect demonstrates the existence of the reasonable grounds required under s. 495(1)(a) of the Criminal Code.

In this case, however, the judge assessed the probative value of each individual and isolated circumstance relied upon by the prosecution in support of its contention that the arrest was based on reasonable grounds. This approach has been unanimously rejected by appellate courts, all of which favour an assessment of the probative value of the cumulative effect of the relevant circumstances. Had he applied this analytical framework, the judge might have found the grounds required to clothe the [accused’s] arrest with the mantle of lawfulness did exist.

In this regard, it is important to remember that where there is no submission by the individual targeted, i.e. the person informed by a peace officer he or she is under arrest, the “arrest” occurs only once a peace officer seizes the person or touches him or her with a view to detention. It follows that the bundle of justificatory grounds for the [accused’s] warrantless arrest include his attempt to escape from [the officer] [references omitted, para. 11].

Bourque’s acquittal on the trafficking charge was set aside and a new trial was ordered.