By Mike Novakowski
British Columbia’s Court of Appeal has once again ruled that the standard for making an arrest need not meet the threshold of a balance of probabilities, the standard used in a civil case.
In R. v. Glendinning, 2019 BCCA 365, a plainclothes drug officer was surveilling a downtown area known for its high levels of street-level drug use. It was on the edge of a “red zone” — an area in which drug trafficking was common. The officer noticed a female, who he recognized as a drug user, walking along the street. The officer had surveilled the woman before and saw her purchase drugs two years earlier in the same area.
The woman walked to a nearby dog park and looked at vehicles as they approached. About five minutes later, a black Dodge pickup truck (occupied by a driver and a passenger) stopped near the woman. She ran up to the passenger side, remained there for about 10 seconds and then walked away. The truck then left. The officer believed the occupants of the truck had just sold the woman drugs. The officer noted the truck’s licence plate number, alerted other officers about his observations and requested assistance.
Another drug section officer saw the truck again about 27 minutes later and followed it. There were two occupants. The truck came to a stop in front of a man in his twenties who was waiting on a street corner. There was no bus or taxi stop nearby. The young man got into the rear passenger side of the truck. The truck moved slowly around a cul-de-sac and stopped. The young man got out of the truck and walked away from it.
Police decided they had enough grounds to arrest both of the truck’s occupants for drug trafficking. They boxed in the truck and the driver of the truck (Glendinning) was recognized as the same individual who had been driving at the time of the meeting with female drug user. He appeared panicky and was fidgeting with his arms. Both occupants were arrested. Glendinning was searched and found in possession of crack cocaine and a heroin/fentanyl combination. Glendinning, along with his passenger, was charged with possessing controlled substances for the purpose of trafficking.
A B.C. Supreme Court judge concluded that the police had the requisite reasonable grounds to arrest Glendinning, both subjectively and objectively.
“The Crown is not required to establish that it was more likely than not that an indictable offence was about to or had occurred,” the judge said. “Rather, the Crown must establish a reasonable belief or probability on the totality of the circumstances.”
The two independent interactions the police had observed, when viewed in their totality along with the officers’ experience, were sufficient to provide reasonable grounds of dial-a-dope drug transactions.
“Both sets of interactions within approximately 30 minutes of each other had many consistencies with the officers’ knowledge and descriptions of dial-a-dope transactions, including the presence of a waiting purchaser on the side of the road, the short interaction time, the open door, and the occasional entry into the vehicle by the purchaser for a short duration, a vehicle ride that does not change the location of the purchaser substantially, and the parting of the purchaser and the seller in different directions,” the judge continued. “With respect to the first interaction, its location was also consistent with known dial-a-dope drug transactions generally, and for that drug purchaser in particular.”
And even though innocent explanations might have been available for the two transactions, none was satisfactory from a common-sense perspective.
Furthermore, it was not necessary for the officers to rule out such possible innocent explanations. There was no s. 9 Charter breach (arbitrary detention) nor was the search that followed as an incident to arrest unreasonable (s. 8). The evidence was admissible and Glendenning was convicted of two counts of possessing controlled substances for the purpose of trafficking. He was sentenced to two years plus a day in prison.
Glendinning appealed to B.C.’s top court, arguing the police did not have the necessary reasonable grounds for an arrest under s. 495(1) of the Criminal Code. In his view, the trial judge applied the wrong test in finding the arrest lawful. Thus, he submitted that his rights not to be arbitrarily detained or imprisoned and to be secure against unreasonable search or seizure were violated.
Reasonable grounds for arrest
Justice Newbury, speaking for the Court of Appeal, upheld the trial judge’s ruling. In finding that the police met the reasonable grounds standard, she noted a number of considerations useful in determining whether the threshold for arrest had been met, including the following:
- The phrase “reasonable grounds” is the equivalent of “reasonable and probable grounds;”
- The reasonable grounds standard is lower than the civil standard of proof on a “balance of probabilities;”
- The Crown need not demonstrate the belief of the police (that an indictable offence had occurred) was correct on a balance of probabilities. An arresting officer need only have subjectively believed an offence had occurred and that belief must have been objectively reasonable from the viewpoint (or through the “lens”) of a person with the officer’s experience and training;
- The officer must have grounds that tend to support their subjective belief and those grounds must be objectively defensible, such that the line between “mere suspicion” and “reasonable belief” is crossed. The officer must be able to explain what objective factors, when considered through the “lens” of their experience and training, led to the belief.
In this case, the trial judge did not err in describing the “reasonable grounds” standard and applying it. Even though Glendinning pointed out (1) the absence of factors common in dial-a-dope operations, (2) the absence of any observed hand-to-hand exchanges of drugs and (3) the two-year span from when the officer last interacted with the known female drug user, Newbury recognized that “the police officer had to make his decision based on what he did observe, not on what he did not see.”
“In my view the conduct observed by the officers was highly suspicious and it was not unreasonable for the police officers here to form the opinion that a drug transaction had occurred and that the driver of the truck was trafficking in drugs on the day in question’” Newbury said. “While it is true that police must not take a cynical or highly suspicious approach to what they see, neither should they be naïve or overly cautious in enforcing the laws of the land. Their belief must be reached based on the totality of the circumstances, again including their particular expertise and experience in drug investigations.”
Glendinning’s appeal was dismissed and his conviction stood.
Mike Novakowski is Blue Line’s case law columnist.