The Legality of Arrest in R v. Coutu - Noah Curle
One interesting issue that arises when discussing the extent of police powers is the legality of arrest. More specifically, how do we define what reasonable grounds are for an arrest without a warrant? When is it reasonable to arrest someone, and when is it so unreasonable to arrest someone that it loses its legality? More often than not, we as a society perform a collective appeal to authority, assuming that the police are simply performing their jobs and are in the right. However, there are some cases where they’re in the wrong. One recent Manitoba Court of Appeal case which grapples with this idea is R v. Coutu.
What makes this case especially captivating is its narrative. It seems to be recycled straight out of a lame 1980’s action movie. The facts of the case are as follows. The police arrived at a convenience store minutes after getting a call that a man with a machete, along with a female companion, had robbed the store. The police received a vague description from the convenience store employee and got a glimpse at the security camera footage before setting their police dog out in search of the perpetrators. The canine quickly traced their scent back to an apartment building, but it was unclear whether they were still inside.
The police then spotted Mr. Coutu near the back of the building as he entered a vehicle along with his friend. Coutu was holding a backpack and began looking nervous when he saw the police. He vaguely matched the description of the man they were looking for and they quickly arrested him. Opening up his bag expecting to find the stolen cash, they were surprised instead to find a variety of illegal weapons. After going over the security cam footage from the convenience store, Coutu was cleared of the robbery but was still charged on the counts related to the illegal weapons.
During the initial trial, the judge found Coutu guilty of the weapon related charges and sentenced him to five years and six months in jail. However, the judge also said that the officers who arrested him did not have reasonable grounds to search his backpack. The trial judge was caught in a bind because on one hand he thought that the arrest demonstrated “a deliberate disregard [for] the accused’s rights”, but on the other hand he thought that “the weapon evidence [should] not be excluded because, to do so, would bring the administration of justice into disrepute.”. This dichotomy was resolved by a shift in the sentence. The trial judge decided to lessen Coutu’s sentence by 6 months, bringing the total down to five years.
In response to this decision the Crown appealed, seeking the reinstatement of a longer sentence. The main issue that the appeal revolved around was the legality of the arrest. If the police had reasonable grounds to arrest Mr. Coutu for the convenience store robbery, then the Crown would likely win the appeal. The statute that frames this issue is section 495 of the Canadian Criminal Code. Section 1(a) states, “A peace officer may arrest without warrant 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.”. So if the Crown could show that the police officer, based on reasonable grounds, believed that Coutu had committed the robbery, then they could restore the full length of the original sentence.
The court of appeal based their decision on R v. Penner, a case decided in that very same court only a year earlier. In Penner, a Manitoban man was arrested for the trafficking and possession of cocaine and marijuana. This arrest was made without a warrant and Penner claimed that it violated his Charter rights. This is what the Manitoba Court of Appeal had to say regarding the issue of the legality of arrest in Penner: “A lawful warrantless arrest pursuant to section 495(1)(a) of the Criminal Code has both a subjective and objective component. The officer who makes the decision to arrest must subjectively have reasonable and probable grounds on which to base the arrest and those grounds must be objectively justifiable to a reasonable person placed in the position of the officer. The appropriate standard of proof is one of reasonable probability, not proof beyond a reasonable doubt or a prima facie case . In applying that standard, the trial judge must assess the totality of the circumstances in a practical, non-technical and common-sense way, mindful of the knowledge, experience and training of the officer.”
Before getting into what the court of appeal decided after taking this ruling into account, I thought it would be interesting to apply the principles as voiced in Penner to the case at hand myself. The question is: did the officer who made the arrest have reasonable and probable grounds on which to base the arrest, and were these grounds objectively justifiable to a reasonable person in the position of the officer? Going over the facts of the case we find a few things of note. First, the canine unit which was following the scent of the robber led the officers to the building that Coutu was situated behind. Now this is not incriminating evidence on its own, however, it did “put the accused in the pool of potential suspects.”.
Secondly, Coutu’s build, shoes, and clothing all matched the rough description that the officers were given. Some of the clothing did not exactly match up, but it's reasonable to believe that he could have changed some part of his outfit in the time between the robbery and then. Thirdly, the officers mistook the man Coutu was standing with for the female companion who was purportedly with the robber. Finally, and perhaps the most compelling, was that Coutu began acting uneasy and suspicious as soon as he saw the police. Given this evidence, it is clear that the officer believed that he had reasonable and probable grounds for arresting Coutu. Furthermore, I believe that a reasonable person in the position of the police officer would agree that there were objectively reasonable and probable grounds on which to base an arrest.
The Manitoba Court of Appeal came to the same conclusion. They ruled that the trial judge erred in saying that the grounds on which the arrest was made were not objectively reasonable and reversed the six months that the trial judge had taken off of the sentence. They also reiterated that “objectively reasonable grounds” is not the same thing as guaranteeing that the person being arrested is the person you are looking for, “A belief can be objectively reasonable even if it turns out to be wrong.”. Therefore, even though the officers were mistaken in believing that Coutu had committed the robbery, the belief could still be considered objectively reasonable.
To answer the question that I posed at the beginning of this blawg- how do we define what reasonable grounds are for an arrest without a warrant?- the answer is surprisingly elegant. There must be: (1) a subjective belief by the officer that the arrest is based on reasonable grounds, and (2) a reasonable person in the place of the officer must find those grounds to be objectively justifiable.
One interesting caveat to arise from this case is the discrepancy in how the Manitoba Court of Appeal views its role and relationship in regards to the trial courts. In the same Penner case that the appeal court used to justify why the trial judge erred in finding that there were no reasonable grounds for the arrest, the judge stated, “Our role is not, as counsel encouraged us to do, to reach a different conclusion about the evidence as to whether objective grounds for the arrest existed.”. In other words, they didn’t think it was the place of the Manitoba Court of Appeal to question whether the trial judge had erred concerning the objectivity of the grounds on which the arrest was made. This view is quite different from the view that the very same court espoused only a year later in Coutu. It will be interesting to see how future cases in this jurisdiction deal with similar situations given the contravening precedents set by these two cases.
1 R v Coutu, 2020 MBCA 106 [Coutu].
2 Ibid at paras 9-11.
3 Ibid at para 3.
5 Ibid at para 5.
6 Ibid at para 4.
7 Ibid at para 5.
8 Ibid at para 6.
9 Criminal Code, RSC 1985, c C-46 s 495 (1)(a).
10 R v Penner, 2019 MBCA 8 [Penner].
11 Ibid at para 4.
12 Coutu, supra at para 11.
13 Ibid at para 23.
14 Ibid at para 13.
15 Ibid at para 14.
16 Ibid at para 23.
17 Ibid at para 21.
18 Ibid at para 19.
19 Penner, supra at para 4.
20 Ibid at para 8.