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Misidentification did not render grounds for arrest unreasonable

October 11, 2023  By Mike Novakowski

Photo: SecondSide / Adobe Stock

The arrest of a man mistakenly believed to be someone else was not unlawful for that reason alone, since the police nevertheless had the necessary grounds for his arrest. In R. v. Whitfield, 2023 ONCA 479 the police identified a man – Kawayne Edwards – who they suspected of drug trafficking.

Edwards had become a target in a large-scale drug investigation and police identified two addresses associated with him, including an apartment and two rental vehicles. Using a live covert video feed, police formed the opinion that the apartment associated with Edwards was being used as a drug stash house. Video surveillance showed a man—believed to be Edwards—using a key to enter and leave the apartment on several occasions, including once where he entered empty handed but left with a shopping bag and a box. He was then seen to enter a car, stay inside it for only a minute and leave without the red box. This car belonged to another target of the investigation. Other people, who were carrying satchels, backpacks and duffel bags that were transferred to other individuals, were also seen entering the apartment at all hours of the day and night. As a consequence, the police obtained a warrant to search two locations, including the apartment, where it was believed drugs and drug paraphernalia would be found.

Prior to executing the warrant at the apartment, police viewed the covert surveillance feed they had installed and saw a male—matching the description of Edwards—using a key to enter and lock the apartment. The police had observed this man enter the apartment with a key on previous occasions and one of the rented vehicles associated with Edwards was parked in the building’s underground parking lot. On warrant execution day, the man left the apartment and entered the vehicle parked underground. He was then arrested as he tried to drive out of the parking lot. He was searched incident to arrest and police found 49.17 grams of fentanyl in his possession. When the man was identified, it turned out he was not Edwards as the police had believed, but Kadeem Whitfield. Edwards was arrested later in the day at the other location identified in the search warrant.

“The police were not required to be correct about the identity of the [accused] before they formed grounds to arrest.” – Court of Appeal


At his trial in the Ontario Court of Justice, Whitfield argued, in part, that police lacked the necessary grounds to arrest him because they incorrectly believed he was Edwards. In addition, he contended that simply entering and leaving a suspected stash house was not sufficient grounds for arrest. The trial judge, however, disagreed. In her view, the mistaken belief that the police were actually arresting another individual did not detract from the lawfulness of Whitfield’s arrest. The police reasonably believed the apartment was being used as a stash house and Whitfield had a key for it, indicating he exercised control over it. The fact Whitfield turned out not to be Edwards did not make the arrest unlawful. As a result, Whitfield was convicted of possessing fentanyl for the purpose of trafficking.

Whitfield appealed his conviction to Ontario’s top court, again renewing his suggestion that the mistaken belief as to his identity rendered his arrest and subsequent search unlawful. But the three-member unanimous appeal court rejected this argument.

“The police were not required to be correct about the identity of the [accused] before they formed grounds to arrest,” said the Court of Appeal. “Under s. 495 [C.C.C.], a warrantless arrest is lawful if the arresting officer believes, on reasonable grounds, that the suspect has committed an indictable offence. The standard of ‘reasonable grounds’ focuses on the officer’s state of mind and the reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be ‘based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken’.”

Here, when the police decided to arrest Whitfield, they reasonably believed he was in possession of drugs based on all the information they knew at that time. He was seen entering and leaving what was believed to be a drug stash house; he accessed it with a key and locked it; he was inside for about 25 minutes; and he then used a car in the underground garage that was linked to Edwards, a target in the investigation. There was no basis to interfere with the trial judge’s finding that the police officers’ mistaken belief was objectively reasonable. The fact the police believed they were arresting a different person whom they were investigating for drug trafficking did not, in itself, detract from the grounds for arrest. Whitfield’s appeal was dismissed.

Mike Novakowski is Blue Line’s case law columnist.

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