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Mistake did not render arrest illegal


February 10, 2021
By Mike Novakowski

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Simply because an officer made an error by believing a drug was a controlled substance, when it wasn’t, did not render an arrest for possession objectively unreasonable and therefore unlawful.

In R. v. Tim, 2020 ABCA 469, the accused’s vehicle veered off the road and collided with a road sign. After Tim left the scene, a passerby called 911 and police, fire and EMS responded. A police officer located Tim’s vehicle about one kilometer away. It had become disabled and Tim was speaking with fire department personnel. When asked to provide proof of registration and insurance by the officer, Tim returned to his vehicle to retrieve it. The officer followed him.

When Tim opened the door to his vehicle, the officer saw him try to hide a small zip-lock bag containing a single pill by swiping it to the ground. The officer believed this pill was Gabapentin, a substance the officer erroneously believed was a substance controlled under the Controlled Drugs and Substances Act (CDSA) and arrested Tim for possessing it. He and his vehicle were then searched by police as an incident to the arrest.

Tim was patted down and escorted back to a police car. He limped and shook his leg as he walked and an officer noticed .22 calibre ammunition fall from inside his pant leg. The officer patted him down again and felt something metal in Tim’s groin area. A small double-barrelled pistol loaded with five live rounds was dislodged and fell from his pants. A search of the car revealed a folding serrated knife, a can of bear spray, fentanyl and alprazolam. A strip search was also conducted at the police station but no further drugs or firearms were located. Tim was charged with drug and firearm offences.

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In the Alberta Court of Queen’s Bench, Tim argued that his ss. 8 and 9 Charter rights had been violated and that the evidence resulting from the searches should be excluded under s. 24(2), but the judge found Tim’s arrest was lawful. Not only did the officer have the necessary subjective belief that an offence was being committed, but this belief was objectively reasonable. As for the searches, they were lawful as an incident to Tim’s arrest. Having had his Charter applications dismissed, Tim then pled guilty to carrying a concealed pistol, possessing a loaded pistol, possessing a pistol while prohibited, possessing Fentanyl and possessing non-prescribed drugs while bound by an undertaking not to do so. He was sentenced to 3.5 years in prison.

Tim then appealed his convictions to the Alberta Court of Appeal, arguing the trial judge erred in failing to find Charter breaches and in not excluding the evidence. He submitted that his arrest was not objectively reasonable because the officer erroneously believed Gabapentin was a controlled substance. In Tim’s view, his arrest was unlawful because it was based upon ignorance of the law—a “non-existent offence”. Thus, his s. 9 right to be free from arbitrary detention and his s. 8 right to be free from unreasonable search were violated. The Crown argued an arrest does not become unlawful just because an officer makes a mistake.

Was the arrest lawful?

Justices McDonald and Wakeling, forming the two-member majority of the Court of Appeal, found the police officer had a lawful basis to arrest Tim. Under s. 495(1)(b) of the Criminal Code a police officer observing an apparent offence being committed may arrest without a warrant. This requires an arresting officer’s subjective belief that and an offence was being committed to be objectively reasonable. However, “the police officer need not demonstrate anything more than reasonable and probable grounds,” said the majority. “‘Reasonable grounds’ is a standard not only less than that required for a criminal conviction, but also less than the civil standard of proof.” Furthermore, an officer’s training and experience is important in assessing whether an arrest is objectively reasonable.

In this case, the majority concluded the officer had the necessary subjective belief at the moment of arrest, which was also objectively reasonable in the circumstances:

The police officer had been with [the Police Service] for roughly three years at the time of the arrest. He responded to a roadside accident, in which it appeared, at first glance, that the driver of the vehicle may have attempted to flee the scene of an accident. Upon requesting registration and insurance information, the police officer followed the [accused] back to his vehicle. He testified on cross-examination that he did not get a “great vibe” from the [accused] or the circumstances, and felt he needed to “pay more attention” to the actions of the [accused]. As the [accused] reached for his paperwork, the police officer saw him attempt to secrete a baggie containing Gabapentin by swiping it to the ground. He testified on cross-examination that he saw the [accused’s] eyes “motioned to it as well” before he swiped it to the ground. The police officer recognized the pill to be Gabapentin, a drug that in his nearly three years as a police officer he had seen traded with other illicit drugs. 

Considering the entire constellation of events, including that the [accused] may have been fleeing the scene of an accident, that the police officer saw the [accused] notice the pill and tried to hide it, and that he had seen this drug traded amongst people on the streets and had arrested people with it in their possession along with other drugs, and that the police officer reasonably believed Gabapentin was covered by the CDSA, the police officer could conclude there were reasonable and probable grounds for the arrest. An officer, trained to detect criminal activity and patterns of behaviour which this officer had, would consider this constellation of facts in its entirety and conclude that he had reasonable and probable grounds to arrest the [accused]. [para. 27]

Non-Existent Offence

The majority also rejected Tim’s contention that the arrest was unlawful because of the officer’s belief in a non-existent offence. An officer can’t be held to a standard of perfection. In this case, the officer made a mistake but his actions needed to be assessed in light of what was reasonable in the circumstances.

[T]he police officer was not enforcing a non-existent law. He was enforcing the CDSA pertaining to the possession of a controlled substance. While it is true that he was mistaken in concluding that Gabapentin was a controlled substance listed on a schedule of the CDSA (which it was not), it cannot be said that he enforced a non-existent law. The police officer acted in good faith, he subjectively believed that the drug he saw was a controlled substance, and his belief was objectively reasonable in the circumstances. His error of law – not knowing that Gabapentin was not one of the hundreds of controlled dugs and substances on the CDSA – does not invalidate the [accused’s] arrest.

The true facts were not known to the police officer. He knew the drug in question was Gabapentin, and he had seen it trafficked in conjunction with illicit street drugs before. He did not know that it was not a controlled substance – this is an error of law. On reasonable and probable grounds, he believed in the existence of a state of facts and law which, if it did exist, would have the legal result that the person being arrested (the [accused]) committed a criminal offence, that being in possession of a controlled substance. [paras. 36-37]

Since Tim’s arrest was lawful, the searches that followed were lawful as an incident to arrest.  There were no breaches of Tim’s ss. 8 or 9 Charter rights and therefore no need to conduct a s. 24(2) admissibility analysis. Tim’s appeal was dismissed.

A Different View

Justice Veldhuis disagreed with the majority and concluded the officer’s subjectively held belief was not objectively reasonable. She found ss. 8 and 9 Charter breaches and would have excluded all of the evidence in acquitting Tim on all charges.