• Lewis Waring

Reasonable and Probable Grounds to Arrest - Sierra Bednarz

In order to provide protection and enforce the law in Canada, police officers have the authority to question and arrest individuals, as well as conduct searches to find evidence. However, given the impacts these powers have on individual autonomy and privacy, there must be a rational basis upon which these powers are exercised. It would be unconscionable for police to arrest people or barge into their homes without justification. As such, the legal system must hold police officers to a high standard in order to denounce coercive or unwarranted exercises of power. Often, this involves a balancing of the individual’s rights against the crime control objectives of the state.


Section 495(1) of the Criminal Code (“the Code”) states that “a peace officer may arrest without a warrant, (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.” Provided that such an arrest is lawful, a warrantless search can be conducted by police as incident to an arrest. As such, it is important that a police officer’s authority to carry out an arrest is exercised appropriately to ensure that the privacy of Canadians is upheld. In order to determine whether an arrest is lawful, the court will assess the totality of circumstances leading up to the arrest. There is both a subjective and objective component to determining this totality of circumstances: the officer must have subjectively reasonable grounds to make an arrest and those grounds must be reasonable from the perspective of the reasonable person.


A case of bad luck


The Manitoba Court of Appeal (“the MBCA”) classifies the case of R v Coutu (“Coutu”) as a case of bad luck, one in which the accused was mistaken for a robbery suspect after being in the wrong place at the wrong time and wearing the wrong thing. This series of unintended and coincidental events ultimately resulted in Mr. Coutu being arrested, searched, and subsequently charged with several weapons offences. The legality of the arrest, as well as the associated search, were points of disagreement between the trial judge and the appellant judge.


After robbing a Winnipeg convenience store with a machete, the male suspect in Coutu fled on foot with a female accomplice. Police arrived on the scene, quickly obtained a description of the suspect from the surveillance video, and began their pursuit of the suspect with a canine unit. The police dog tracked a scent to a residence, leading police to cross paths with two individuals—one of which was the accused. Unfortunately for him, he strongly resembled the description of the robbery suspect. Mr. Coutu shared the suspect’s stature, and was wearing dark clothing, a black jacket, and black Nike shoes, similar to what the suspect had been seen wearing.


An overblown reliance on appearance


While at first glance, the accused’s description appeared consistent with that of the suspect, I do not believe that this fact should be given significant weight in determining the legality of the arrest. The description of the robbery suspect was quite unremarkable. It relied almost exclusively on dark clothing, did not include any defining features, and could have matched any number of people. However, it is also important to acknowledge that there was nothing to suggest that Mr. Coutu could be ruled out as the robbery suspect at this time.


The accused was stopped by police and told to show his hands. In response, the accused began to walk backwards and remove his backpack. This behaviour was perceived by police as an indication that Coutu intended to flee, elevating their suspicions that the accused was in fact the robbery suspect. On this basis, the police arrested the accused and searched his backpack. While the suspicious behaviour of the accused was not the sole factor relied on to support the arrest of Mr. Coutu, it was the triggering event, and, as such, it warrants scrutiny. Ultimately, I have a difficult time accepting that the requisite standard of proof is established by a series of coincidences and the mere belief that someone is going to run away. As such, I do not believe that the arresting officer had reasonable and probable grounds to arrest Mr. Coutu.


An exculpation followed by new charges


After the arrest, it became apparent that there were inconsistencies in the appearance of the accused and the suspect, which led Mr. Coutu to be excluded as a suspect for the robbery. However, in the search of the accused’s backpack, police found a loaded sawed-off rifle, two throwing stars, and an air pistol with a silencer. As a result, Mr. Coutu was charged with possession of a loaded firearm, carrying a concealed weapon, and possession of a prohibited weapon.


The trial judge was very critical of the actions of the police officers and “declared the arrest illegal and the warrantless search of the backpack unreasonable”. However, despite this finding, the evidence of the search was allowed on the basis that an exclusion would bring the administration of justice into disrepute. In weighing the accused’s individual rights against crime control objectives, the conviction of the accused was prioritized. However, the trial judge labelled the actions of police as part of a larger “pattern of [the police service] systematically ignoring the rights of citizens.” Therefore, in an effort to denounce the conduct of police, the judge reduced Mr. Coutu’s sentence by six months for a total of five years imprisonment.


This sentence was appealed by the Crown, and the MBCA rejected the trial judge’s finding that the arrest was illegal. The MBCA concluded that there was reasonable and probable grounds for the arrest of Mr. Coutu and that the trial judge had erred in their assessment of the totality of the circumstances. The MBCA relied heavily on Mr. Coutu’s suspicious behaviour, as well as the canine unit’s leading of the police to his location and the similarities in appearance between the accused and the suspect, to establish reasonable and probable grounds. After finding that the arrest and the search were reasonable, the MBCA found no rationalization for a reduction of Mr. Coutu’s sentence on the basis of state misconduct. Additionally, the MBCA found that the mitigating factors and Gladue factors “in this case are not of significance and do not give reason not to increase the accused’s sentence.” Therefore, the MBCA decided to increase Mr. Coutu’s sentence from the five years imposed by the trial judge to six years’ imprisonment.


A lack of evidence led to an illegal arrest


I acknowledge that it is difficult to balance the accused’s rights against the goal of apprehending and punishing those who commit crimes. There is considerable pressure on police and the justice system as a whole to punish offenders. While it would be both unreasonable and unrealistic to hold police to a standard of perfection, however, it is integral that crime control objectives are furthered in a manner consistent with individual rights. In this case, I agree with the trial judge that the totality of the circumstances established the reasonable suspicion required for investigative detention but ultimately fell short of reasonable and probable grounds. Furthermore, while I am not sure how effective a minor reduction in sentence would be at denouncing the conduct of police, I appreciate the trial judge’s attempt to hold police accountable. It is important for the legal system to be critical of the actions of police, even if they do catch “the bad guy” and achieve crime control objectives.


Ultimately, I found the evidence in Coutu to be seriously lacking. Police may not have discovered anything disproving their suspicions that Mr. Coutu was the robbery suspect, but a lack of exculpatory evidence does not make an arrest reasonable. Furthermore, I am not persuaded by the fact that Mr. Coutu matched a very generic description and was perceived to be acting suspiciously. The act of someone fleeing or attempting to flee would certainly elevate a police officer’s suspicion. However, the actions of Mr. Coutu fell short of actually doing either. I acknowledge that the totality of the circumstances made police suspicious of the accused, but I believe they fell short of establishing reasonable and probable grounds upon which to make an arrest.

Check out the Robson Crim MLJ
  • Facebook Basic Black
  • Twitter Basic Black