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Grounds for arrest not to be assessed in isolation

August 21, 2023  By Mike Novakowski

Photo: Fotokitas / Adobe Stock

When assessing whether a police officer has met the reasonable grounds threshold for a lawful arrest, it is important for a trial judge to consider the contextual background of the officer’s investigation and not look at each individual fact in a piecemeal fashion. In R. v. Simmons, 2023 PECA 4 a police officer launched an investigation into suspected drug trafficking by a man named Ryan Gallant. The officer relied upon information from four confidential informers (including two handled by the officer), surveillance and database checks.

The following month a tracking warrant was obtained which enabled the police to electronically track Gallant’s mobile phone. Confidential information indicated Gallant would travel from P.E.I. to New Brunswick to obtain methamphetamine for resale. On two separate days, Gallant’s phone was tracked as it travelled from Summerside, P.E.I., to Moncton, N.B., and back. On one day, the phone remained in the Moncton area for about an hour and a half before returning to P.E.I. while it stayed in New Brunswick on the other day for only about 45 minutes. This tracking information, along with video surveillance along the route, indicated that separately owned vehicles driven by two other individuals accompanied Gallant’s mobile phone to New Brunswick. Source information received at this time corroborated the officer’s belief that Gallant was travelling to New Brunswick to obtain drugs for sale. COVID-19 restrictions on interprovincial travel at the time also supported the officer’s belief that these two short trips to Moncton were consistent with drug trafficking activity.

The officer then received source information that Gallant would soon be travelling to New Brunswick to reload with methamphetamine. At about the same time the mobile phone was tracked leaving P.E.I. and travelling on the Confederation Bridge to New Brunswick, a Jeep owned and registered to the accused Thane Simmons was captured on video surveillance crossing the Confederation Bridge. The officer was aware Simmons had been involved in drug trafficking in the past and had a prior record for drug offences. Based on all of the information, the officer believed Gallant’s mobile phone was in Simmons’ Jeep and the vehicle would follow the established pattern of making a relatively quick trip to Moncton, reload with methamphetamine and then return to P.E.I. After Simmons’ Jeep returned from New Brunswick via the Confederation Bridge and passed through a COVID checkpoint, Simmons (driver) and Gallant (passenger) were arrested and the vehicle was searched incidental to arrest. Drugs, including substantial quantities of methamphetamine and cocaine, were found.

At trial in P.E.I. Provincial Court, Simmons argued his Charter rights under s. 8 – search and seizure – and s. 9 – arbitrary detention – had been breached. The trial judge disagreed, however. He found the arresting officer had the necessary subjective and objective grounds to arrest both men. As a result, there were no Charter breaches and Simmons was found guilty on all charges, including possessing methamphetamine and cocaine for the purpose of trafficking.

“It is not appropriate to ‘silo’ information into individual pieces.” – Chief Justice Gormley

Simmons then appealed his convictions to a three-judge panel of the P.E.I. Court of Appeal arguing, in part, that the police lacked the requisite reasonable grounds to arrest him.

Was the arrest lawful?

A warrantless arrest under s. 495(1) of the Criminal Code requires both subjective and objective grounds. The arresting officer must subjectively believe they have the grounds for arrest, and those grounds must be justifiable from an objective viewpoint. And when a trial judge assesses the presence of objective reasonable grounds, they must do so based on the information known to the police officer at the time of the arrest. “Contemporaneity is required,” said Chief Justice Gormley. “It is important to refrain from drifting forward in time to consider any evidence that arises after the arrest. The trial judge must be careful to only consider the evidence the officers had at the time of the arrest.”

Even though most of the evidence known to the officer in this case, including the confidential source information, related to Gallant as the primary target in the investigation, the Appeal Court found the objective reasonableness of the officer’s decision to arrest Simmons had not been undermined by the fact his involvement only came to light shortly before the vehicle was stopped and the arrests made. Gormley stated:

It is not appropriate to “silo” information into individual pieces. The appropriate approach is to review the facts known to the officer at the time of arrest to determine if the factual context as a whole seen through the eyes of a reasonable person with the same knowledge and experience as the officer provide the requisite objective grounds to effect the arrest.

Even though Mr. Simmons appeared in the investigation relatively late, this is not a situation of a random traffic stop that progresses to a search of a vehicle. Neither is it a case of a police officer, with no contextual background, targeting unknown individuals involved in suspicious activity. This case is indicative of an incremental investigation of a specific targeted person who leads the police to a related person. Mr. Simmons was accompanied by Mr. Gallant along with Mr. Gallant’s mobile phone which was being actively being monitored by the police when they both travelled to New Brunswick for a relatively short visit which was consistent with an established pattern of behaviour by Mr. Gallant. This information is supported by recent confidential human source information. It is also at a time when travel restrictions had been imposed on individuals crossing provincial boundaries. Considered as a whole, the facts known by [the officer] supported the arrest of both Mr. Gallant and Mr. Simmons.

The trial judge made no error in concluding that Simmon’s arrest was lawful and his appeal was dismissed.

Mike Novakowski is Blue Line’s case law columnist.

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