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Warrant plus facts justifies warrant-less arrest

Extra-jurisidctional warrant and briefing details provided reasonable grounds for a warrantless arrest under the Criminal Code.

In R. v. Charles, 2012 SKCA 34 an Ontario Justice of the Peace issued a warrant commanding Ontario peace officers to arrest the accused on two counts of attempted murder and one count of conspiracy to commit murder, and take him before an Ontario judge. Charles was in Saskatchewan so two OPP officers went there and asked police to assist in executing the warrant.

They showed police the warrant, said it was “Canada-wide” (even though it hadn’t been endorsed by a Saskatchewan justice) and briefed them for an hour about the circumstances of the charges. Saskatchewan police subsequently spotted Charles in the driver’s seat of a parked vehicle. As they approached, he leaned over to the passenger side and looked back at them.

They arrested him and searched the vehicle, finding a loaded semi-automatic handgun with a defaced serial number under the passenger floor mat. They charged Charles with being an occupant of a vehicle in which he knew there was an unlicensed firearm, possession of a prohibited weapon and possession of a firearm knowing that the serial number had been removed.

At trial in Saskatchewan Provincial Court the officers testified they intended to arrest Charles on the basis of the warrant, but also argued that it, plus the briefing they received outlining its circumstances, provided them with reasonable and probable grounds for the arrest. The trial judge found the arrest unlawful because the warrant the officers used had not been issued by a superior court, nor was it endorsed in Saskatchewan; therefore it could only be executed in Ontario.

In the judge’s view, the arrest was made on the strength of the warrant, not on the basis of reasonable and probable grounds. Since the arrest was unlawful, the judge concluded Charles’ s. 8 (unreasonable search and seizure) and 9 (arbitrary detention) rights were breached. The evidence of the gun was excluded and he was acquitted of all charges.

The Crown appealed to the province’s top court arguing the arrest was actually warrantless, effected under s. 495(1) of the Criminal Code, with police relying on the fact of the warrant and briefing information to provide reasonable and probable grounds Charles had committed the offences detailed in it.

The Crown submitted that the phrase “Canada-wide warrant” (which is not found in the Criminal Code) wasn’t used to indicate that the warrant could be executed anywhere in Canada, but rather that the issuing province was willing to pay the transportation expenses to have Charles brought back to their juridiction. Charles would then be taken before a judge in the arresting jurisdiction to await formal endorsement of the warrant, permitting his return to the issuing jurisdiction.

Justice Smith, delivering the court’s decision, found it was unnecessary to decide whether the existence of a warrant for an indictable offence was sufficient to extra-jurisdictionally constitute reasonable and probable grounds for an arrest. Police had considerable information about the circumstances of the offences which went well beyond the mere existence of the extra-jurisdictional warrant. They were briefed by the OPP and knew all the facts relied upon by Ontario police to obtain the warrant.

“These facts, especially when coupled with the existence of the arrest warrant based on these facts, clearly provided objectively reasonable and probable grounds for the arresting officers to believe that the respondent had committed indictable offences,” said Smith.

“Moreover, both arresting officers, in their testimony, made it clear that they held a subjective belief that they had reasonable and probable grounds for the arrest.” Thus, even though the warrant wasn’t endorsed in Saskatchewan and the arresting officers were mistaken about the Ontario warrant being effective there, the warrantless arrest was valid under s. 495(1).

Once an arrest is made under that section on reasonable grounds, the Criminal Code has a procedure (s. 503(3)) for executing the warrant after the person named on it is arrested, provided it is presented for endorsement at that stage.

The trial judge erred by assuming that knowledge of the circumstances relating to the charges in Ontario could not meet the objective test for reasonable and probable grounds because this information was secondhand, or hearsay.

“The police are entitled to rely on hearsay information to provide reasonable and probable grounds for arrest, so long as that information is reasonably reliable,” said Smith. “Information provided to the Saskatchewan officers by the Ontario police was clearly from a reliable source. In addition, the existence of the warrant for arrest based on that information enhanced its credibility.”

Further, the trial judge mistakenly concluded Saskatchewan police did not subjectively believe they had reasonable and probable grounds for Charles’ arrest within the meaning of s. 495(1) because they said they would not have arrested him without the warrant. Both officers actually testified they believed they had reasonable grounds the accused had committed the offences detailed.

The arrest was valid under s. 495(1); both officers subjectively believed they had reasonable grounds Charles had committed the indictable offences detailed based on the Ontario officers’ briefing, supplemented by the warrant, and their belief was objectively reasonable. There was no s. 9 Charter breach.

Since the arrest was lawful, searching the vehicle was reasonable as an incident to arrest and no s. 8 breach arose. The Crown’s appeal was allowed, the evidence was admissible, Charles’ acquittals were set aside and a new trial was ordered.