R. v. Day, 2014 NLCA 14

Date: 201403 11 Docket: 13/05 Citation: R. v. Day , 2014 NLCA 14 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPELLANT AND: RYAN PAUL DAY RESPONDENT Coram: Welsh, Rowe and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: October 17, 2013 Judgment Rendered: March 11, 2014 Reasons for Judgment by Hoegg J.A. Concurred in by Welsh J.A. Dissenting Reasons for Judgment by Rowe J.A. Counsel for the Appellant: Andrew O. Brown Counsel for the Respondent: Randolph J. Piercey Q.C.

Hoegg J.A.: [ 1 ] Ryan Day was acquitted of trafficking cannabis marihuana after the trial judge excluded drugs and other items from evidence at his trial. This appeal is about whether the trial judge erred in doing so. Facts [ 2 ] On October 18, 2011, Constable Emberley received a tip from an informant whom he considered reliable that Mr. Day and his roommate had in their possession quantities of marihuana, cocaine and steroids which they were actively selling. The same day, Constable Emberley corroborated some details of the tip, including the address of Mr.

Day and his roommate, the vehicles they drove, and the roommate’s involvement in selling drugs. He also learned that the previous year Mr. Day had been found in possession of what was believed to be marihuana and a set of digital scales, though he had not been charged at that time. Other officers became involved in the investigation and the residence was put under surveillance. At 3:25 p.m., Constable Strong and another officer observed Mr. Day leave his residence and drive off in the black Honda Civic, which Constable Emberley was informed Mr. Day would be driving.

He stopped at a convenience store where a man came out of the store and got into Mr. Day’s car. The officers were unable to see what happened in the car or when exactly the man got out of the car, but they saw the car drive away and followed it to New Gower Street where Mr. Day parked before entering a downtown bar. [ 3 ] Meanwhile, Constable Emberley, the main investigating officer, attended on a provincial court judge seeking a warrant to search Mr. Day’s residence.

He obtained the warrant at 4:00 p.m. and subsequently communicated that fact to the officers conducting surveillance, who informed Constable Emberley that Mr. Day had gone into a downtown bar. Approximately half an hour later, the two officers conducting surveillance observed Mr. Day exit the downtown bar with two women and walk to the black Honda Civic that was parked nearby. Mr. Day got into the driver’s seat and started the car. The women also got into the car. The officers conducting surveillance then confronted Mr. Day, and Constable Strong arrested him for trafficking.

The women were advised that they could leave and they did. A search of Mr. Day’s person yielded two cell phones and some cash. He was cautioned, informed of his Charter rights, and placed in the police car. His car was then searched. A small quantity of marihuana, a bud buster, and a used marihuana pipe were found inside the car. Two zip lock bags, each containing one-half pound of marihuana, were found in the trunk. The marihuana was valued at $2,500 to $3,000 if purchased by the pound but could be worth $9,000 if sold by the gram (at $20 per gram). [ 4 ] Mr.

Day’s residence was subsequently searched and drug-related charges were laid as a result. However, the Crown later withdrew those charges due to its concern that the search warrant authorizing the search would not survive judicial scrutiny. (The trial judge noted in her judgment that the Information to Obtain the search warrant omitted considerable important information which Constable Emberley confirmed in his testimony he knew prior to Mr. Day’s arrest.) [ 5 ] Mr. Day was charged with possession of cannabis marihuana for the purpose of trafficking in relation to the marihuana found in the trunk of his car.

At trial, a voir dire was held respecting the admissibility into evidence of the marihuana, the cell phones, and the drug paraphernalia, all of which came from the car. The trial judge found that the arrest of Mr. Day was unlawful and that his Charter rights to be free from arbitrary detention (section 9) and secure from unreasonable search and seizure (section 8) had been violated. She excluded the marihuana, cell phones and drug paraphernalia from the evidence under subsection 24(2) of the Charter . As a consequence, Mr. Day was acquitted.

The Appeal [ 6 ] The Crown appeals on the grounds that the trial judge erred in ruling that the arrest of Mr. Day was unlawful and that his

section 8 and 9 Charter rights were breached and on the ground that, even if Mr. Day suffered a breach of a Charter right, the trial judge erred in excluding the marihuana, cell phones, and drug paraphernalia from the evidence. The Crown maintains that the arrest of Mr. Day was lawful and that he was not arbitrarily detained. The Crown further maintains that Mr.

Day’s right to be secure from unreasonable search and seizure was not breached, and that even if it was, the trial judge erred by excluding the evidence under subsection 24(2) of the Charter because the breach was minimal, the police acted in good faith, the searches of him and his car did not severely impact his privacy interests or affront his dignity, and society’s interest in an adjudication of the merits of the serious charge of trafficking called for admission of the evidence. The Issues [ 7 ] The issues for this Court are whether the arrest of Mr. Day was lawful, whether Mr. Day suffered a breach of his

section 8 Charter right, and if so, whether the marihuana, cell phones, and drug paraphernalia ought to have been excluded from the evidence. Standard of Review [ 8 ] A Crown appeal of an acquittal lies only on a question of law ( subsection 676(1) of the Criminal Code ). In this case, the question at issue is whether the arrest of Mr. Day was lawful, which requires a determination of whether there were reasonable grounds for his arrest as stipulated in paragraph 495(1)(

a) of the Code ( R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527).

Even though parts of this question may engage factual findings, which may be reviewable on a deferential standard, the overall question is one of law and the court has the jurisdiction to consider the Crown’s appeal. [ 9 ] In Shepherd , the Supreme Court of Canada distinguished between factual findings and the factual foundation of a case which grounds a legal finding, explaining that whether the facts as found by a trial judge amount at law to reasonable and probable grounds is a question of law to which the correctness standard of review applies: [20] While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.

As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at

first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed thatthe application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the

summary conviction appeal judge erred infailing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, toconstitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimateruling is subject to review for correctness. (Emphasis added.) [10] In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241at para. 17, the Supreme Court of Canada interpreted what is nowparagraph 495(1)(

a) and held that the reasonable grounds for arresting a person without a warrant encompass both 1) a subjective beliefon the part of the police that the person has committed or is about to commit an indictable offence, and 2) that the subjective belief mustbe “justifiable from an objective point of view.” The Storrey test, as it has become known, was summarized by Welsh J.A. of this Courtat paragraph 19 of R. v.

Warford, 2001 NFCA 64, 207 Nfld. & P.E.I.R. 263: The proper test is twofold: (1) did the police officer, from a subjective perspective, have reasonable and probable grounds for arresting[the accused], and (2) could a reasonable person in the position of the officer conclude there were reasonable and probable grounds forthe arrest? [11] In this case, the trial judge decided that the police did not have reasonable grounds to arrest Mr. Day. She found that the policedid not have the requisite subjective belief in grounds for arresting Mr.

Day and also that a reasonable person placed in the position ofthe police would not be able to conclude that there were reasonable grounds for the arrest to have been made. The Crown alleges thatthe trial judge committed reviewable error with respect to each of these distinct determinations. The question becomes, then, whichstandard of review does this Court apply to each determination. [12] There is no doubt that the second prong of the Storrey test, that is whether a subjective belief in grounds for arrest is objectivelyjustifiable, is a question of law (Shepherd, Storrey and R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13). Whether thedetermination of the first part of the Storrey test, that is whether there is a subjective belief in grounds for arrest, is a question of law orone of fact, may be more difficult to ascertain.

If each prong of the Storrey test is viewed as a separate but essential legal standard thathas to be met to inform the ultimate ruling, then determinations respecting applications of both the subjective and objective legalstandards to the evidence are questions of law, and appeals related to each of the determinations would be judged on a standard ofcorrectness. [13] In Feeney, the arresting officer’s subjective belief was at issue. The officer had testified that he was not certain that he believedhe had grounds for arresting Mr. Feeney when he entered Mr. Feeney’s dwelling house without a warrant.

The trial judge found that thepolice had reasonable and probable grounds to enter the house to arrest Mr. Feeney without a warrant, but in so finding, had ignored therequirement that the Crown must prove that the officer subjectively believed he or she had grounds to do so in addition to proving thatthe grounds were objectively justifiable. As well, the trial judge had ignored material evidence respecting the officer’s subjective beliefat the time he entered Mr. Feeney’s dwelling house.

The Supreme Court concluded that the trial judge’s failure to consider the evidenceof the officer respecting his subjective belief and apply the subjective test rendered the arrest unlawful and justified appellateintervention. Sopinka J.’s reference to “the subjective test” at paragraph 37 of the judgment indicates that it, like the objective test, is alegal standard to be met when deciding the existence of reasonable grounds. This was the approach taken by the British Columbia Courtof Appeal in R. v.

Crocker, 2009 BCCA 388, 247 C.C.C. (3d) 193, where the subjective belief of a police officer in grounds to effect aprotective officer safety search was the subject of the appeal. The appellate court characterized the issue as “the legal effect of ConstableJohnson’s evidence, and whether it met the requisite standard for establishing his subjective belief in the need for a protective safetysearch”.

It follows from Shepperd and Crocker that if a trial judge applies a misunderstood notion of the legal standard for subjectivebelief to the evidence, or wrongly applies the legal standard for subjective belief to the evidence, then he or she would be making a legalerror. [14] In R v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, the Supreme Court considered the standard of review withrespect to an officer’s subjective belief in grounds to make a breathalyzer demand.

At paragraph 46, Sopinka J. said: The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and,therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C. 1985, c. C-46, must be based on the circumstances ofthe case. It is, therefore, essentially a question of fact and not one of pure law. While this is undoubtedly the case when a judge is making a simple factual finding, the situation is different when that finding resultsfrom evaluating and weighing evidence to determine whether a legal standard has been met.

I note that Bernshaw preceded Feeney, andthat both the decisions were written by Sopinka J. I also note that in the above-referenced quote from Bernshaw that the words“essentially” and “pure” were used by Sopinka J. I assume they were used for a reason. I take that reason to be that the standard ofreview respecting belief is not a simple matter to sort out, as was acknowledged by Marshall J.A. of this Court in R. v. Burke (1997), (NL CA), 153 Nfld. & P.E.I.R. 91 (Nfld.

C.A.), when he said the following at paragraph 13: Determination whether a specific finding was one of law or fact rarely admits to ready solution. It is particularly thorny when theconclusion being challenged on appeal emanates from considerations of mixed fact and law. [15] In R. v. Hillgardener, 2010 ABCA 80, 477 A.R. 200, the Alberta Court of Appeal had this to say about the issue: 19. The question of reasonable and probable grounds is not always a pure question of law: Burke.

There is a strong factual element, but aquestion of law may arise if a trial judge ignores material evidence as to the officer's subjective or objective belief in the presence orabsence of reasonable and probable grounds: see e.g. R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49(QL), at paras. 29 to 34. Similarly, error of law may arise if a trial judge adds a pre-condition or requirement to a legal test which pre-

condition or requirement is not recognized in law: see e.g. R. v. Whittle, (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J. No.69 (QL) at paras 54 to 58. [16] Consideration of the above-referenced jurisprudence leads me to conclude that the determination of subjective belief in groundsfor arresting a person results from application of the legal standard for subjective belief to the evidence. In situations where thedetermination is informed by a simple factual finding, that simple factual finding would be reviewable on a standard of palpable andoverriding error.

However, insofar as the determination calls for the application of a legal standard (Feeney) to evidence, the resultingdetermination is reviewable on a standard of correctness (Shepherd). If a trial judge applies a misunderstood notion of the test forsubjective belief to the evidence or ignores material evidence in making his or her determination, he or she would be erring in law, andthe resulting determination would be reviewable on a standard of correctness. Analysis Did the police subjectively believe they had reasonable grounds to arrest and detain Mr. Day? [17] Mr. Day was arrested without warrant.

Warrantless arrests are governed by subsection 495(1) of the Criminal Code. Theparagraph applicable to this case reads: A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; [18] The Crown maintains that the arrest of Mr. Day was lawful because the investigating officer who ordered the arrest, ConstableEmberley, had the subjective belief that Mr. Day was committing or was about to commit the offence of drug trafficking and because hisbelief was justifiable from an objective point of view. Constable Emberley was the main investigating officer although Constable Strongactually arrested Mr. Day.

While police officers are entitled to rely on each other’s word in an investigation, Constable Emberleydirected the arrest, so his subjective belief must be assessed (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, para. 50). [19] In finding that the arresting officer did not subjectively believe that he had reasonable and probable grounds to arrest Mr. Day,the trial judge said, at paragraph 24 of her decision: If Constable Emberley can only “speculate” as to whether or not he would have arrested Mr.

Day without the search warrant and admitsthat he cannot “truthfully” answer the question, then the only logical inference the court can draw from his response is that he did notsubjectively believe he had reasonable and probable grounds to make the arrest. It then follows, logically, that without the search warranthe would not have made the arrest. The Crown argues that the trial judge decided the issue on the basis of a hypothetical set of circumstances, and not on the evidence ofwhat Constable Emberley actually believed at the time of the arrest.

The Crown argues that this shows that the trial judgemisapprehended the nature of subjective belief. [20] The evidence was that Constable Emberley believed that he had reasonable grounds to arrest Mr. Day and that he based hisbelief on a number of factors, summarized at paragraph 57 of the Crown factum: Cst. Emberley’s testimony also indicated that he had a genuine belief that there were grounds for the arrest. He set out in great detail thetip received from Source B and his view of the reliability of the tip.

He set out the efforts he had made to corroborate the details of thetip, including matching the description of 148 Canada Drive to the details of the tips, and seeing Colin Escott at 148 Canada Drive in atruck matching the description provided, and finding the car registered to Elizabeth Day there. He matched the license plate number ofElizabeth Day’s car to a PROS tip indicating Mr. Day had been arrested [for] marihuana possession while in possession of scales. Heexplained how his experience and expertise led him to conclude that the presence of scales indicated Mr. Day was involved in drugtrafficking. Cst.

Emberley testified about Source A’s tip and his belief in the reliability of the source, which corroborated a portion of thetip received from Source B. He testified that he found the evidence compelling enough to seek permission to draft a search warrantapplication, and went to the effort of spending several hours doing so. He arranged a meeting with a judge. Cst. Emberley swore underoath his belief in the commission by Mr. Day of the offences of possession for the purpose of trafficking and trafficking cocaine andmarihuana when he applied for the search warrant. Finally, the search warrant was issued, which Cst.

Emberley quite correctlyunderstood to be a judicial affirmation of his grounds of belief. (Emphasis added.) Evidence respecting information gathered in police surveillance later the same day also served to support his subjective belief. [21] In direct examination, Constable Emberley was asked why he waited for the warrant to search Mr. Day’s residence to be issuedbefore arresting Mr. Day. He explained that the reason for waiting was to minimize the risk that the arrest could prompt contact withsomeone back at the residence which could result in evidence at the residence being destroyed: Crown Counsel Q.

Okay what was the reasoning for waiting on the warrant to be signed? Constable Emberley A. Well in one situation like where Mr. Day had left the house if they’d of tried to arrest Mr. Day and he fled then there’s a chancethat he could contact someone back at 148 Canada Drive and say you know the police are here, tried to arrest me, and get rid ofevidence.

Q. Okay. A. We just felt that was the best way to do it. Q. Okay. Was there any concern about having a judge confirm your belief that you had reasonable grounds? A. I’m sorry. I don’t understand your question. Q. Was there any concern you know before doing the arrest that you wanted to have a judge confirm what you thought were reasonable grounds to believe that an offence is being committed? A. Well certainly, I mean, to my understanding that’s what a search warrant is. Q. Was that a point of discussion though between you and any of the other members of the team? A. No I don’t remember that part of it.

I remember I drafted the warrant and I went and met the judge, the judge reviewed it and signed the warrant. [ 22 ] Constable Emberley did not say that his belief depended on the judge issuing the warrant. [ 23 ] In cross-examination, Defence counsel continued to ask Constable Emberley questions about whether he would have directed the arrest of Mr. Day had the police not obtained the search warrant. The following exchange with Defence Counsel illustrates: Defence Counsel Q. Sometimes I hear things the way I want to hear things. I understood you to say that you wanted to wait until the warrant because Mr.

Day might take off and then he’d phone back? Constable Emberley A. Well our concern was that if the surveillance team tried to arrest him and then they weren’t successful [in arresting] him, he got away, that he may be in a position to contact someone back at the house. Q. Right. A. And the evidence could be destroyed. Q. Okay and the other reason in part was that you wanted I believe your words were for the judge to confirm your belief. That’s why you weren’t arresting Ryan till you got the search warrant? A. No, I don’t recall saying that. Q.

Okay would you agree that that was part of the reason you weren’t arresting Ryan? A. Was why? Q. You wanted the search warrant issued before you arrested Mr. Day. A. At that time we had decided we’d wait until the warrant was written before we’d arrest him. Q. Okay well let’s go at it this way. If the search warrant was not granted wouldn’t you have called the thing off? A. Your Honour, I can’t truthfully answer that question because I’d be speculating if I did. I mean --- Q.

Okay, but you just told us that you’re an expert and that you’ve had, you know, hundreds of cases and you’ve been declared an expert, so within that capacity aren’t you able to say, look if I’d gone to the search warrant -- if I had gone to the judge and the judge said no, boy you’re not doing the search, wouldn’t you have had a responsibility to say to the guys, come on back to the station? A. Well Your Honour, as I said I’d only be speculating, but I mean I would have to know why the search warrant was [not] [ sic ] signed, what the judge’s reasoning was and I mean there could be a variety of reasons.

I can’t – [ 24 ] The officer said several times that he did not want to speculate as to what he would have done had the search warrant not been issued by the judge and that he would have to know the judge’s reasons for not issuing it before he could speculate about whether it would have affected his decision to arrest Mr. Day. At no time did he say that his belief depended on the warrant being issued or that he would have altered his belief in the grounds for arresting Mr. Day had the judge not issued the warrant. There was no evidence suggesting that Constable Emberley’s subjective belief that Mr.

Day was trafficking marihuana hinged on whether a judge would issue a warrant to search Mr. Day’s residence. Neither does it logically follow that the officer’s belief would have changed had the warrant not been issued. [ 25 ] At this juncture, it is worth observing that a decision to arrest can involve more than simply having the requisite grounds. The fact that the officer may not have arrested Mr. Day had the warrant not been issued does not mean that the officer’s subjective belief was vitiated, or that his grounds were not objectively justifiable.

The police may have a subjective belief that is objectively justifiable to arrest a person whom they choose not to arrest, and the fact that the arrest is not carried out does not mean that the police do not have the grounds.

[ 26 ] Constable Emberley’s testimony that the issuance of the search warrant by a judicial officer was confirmation of what he believed were reasonable grounds to arrest Mr. Day was an honest and appropriate answer to the question asked. It was legitimate for him to regard judicial authorization of the warrant as confirmation of his grounds for arrest. However, his view of the warrant as confirmation of his grounds for arrest does not permit an inference that his belief depended on the warrant being issued. His uncertainty about whether he would have directed the arrest of Mr.

Day if the judge had not issued the warrant, without knowing the judge’s reasons for not doing so, is a common-sense and professional response to the hypothetical put to him. It does not follow from his uncertainty about how he would react in that hypothetical situation that his subjective belief in his grounds for arrest was affected. Likewise, Constable Emberley’s subjective belief that he had grounds to arrest Mr. Day is not undermined by the fact that the Crown ultimately chose not to rely on the search warrant as drafted. Constable Emberley’s subjective belief in grounds for arresting Mr.

Day is what he personally believed at the time of the arrest of Mr. Day ( Feeney ). What his belief might have been in a different set of circumstances is irrelevant to what he believed at that time. [ 27 ] A similar situation was considered by the British Columbia Court of Appeal in R. v. Cheng , 2010 BCCA 135 , 285 B.C.A.C. 108. In Cheng , the Court was deciding an appeal concerning an officer’s subjective grounds for making an arrest. Mr. Cheng’s argument was that because the warrant authorizing the search had been invalidated, the officer’s subjective grounds were vitiated.

The appellate court stated that the invalidation of the search warrant did not vitiate the arresting officer’s belief in his subjective grounds for arrest, nor did it oblige the officer to alter his belief to conform with the opinion of the judge who invalidated it. In this case, Constable Emberley’s subjective grounds for arresting Mr. Day were not vitiated by the subsequent position taken by the Crown that the warrant issued to search Mr.

Day’s residence would not survive judicial scrutiny, nor did the Crown’s position on the search warrant oblige Constable Emberley to change his subjective belief that he had the requisite grounds for arrest. [ 28 ] In determining that Constable Emberley lacked belief in grounds to arrest Mr. Day, the judge focused on Constable Emberley’s answers to hypothetical questions respecting the warrant not being issued. She interpreted Constable Emberley’s answers to the hypothetical question in a certain manner and rested her decision on that

interpretation. She did not reconcile the material evidence respecting Constable Emberley’s subjective belief to her

interpretation of Constable Emberley’s answers to the hypothetical question. Neither did she consider Constable Strong’s evidence. When asked in cross-examination whether he would have arrested Mr. Day if the warrant had not been issued, Constable Strong replied that that possibility was not discussed and stated that he imagined that they “would have arrested [Mr. Day] anyway because at that point we had grounds in my opinion to arrest him”.

On persistent questioning as to whether he would have doubted his grounds for arrest if the warrant had not been issued, Constable Strong answered “I would’ve wondered, but in my … I had the opinion that we had the grounds to arrest based on the source information that we had”. Constable Strong also corroborated Constable Emberley’s testimony that the reason for waiting for the warrant to be issued was to minimize the risk that evidence at the residence could be destroyed if information about the arrest was transmitted before the police were in a position to search the residence.

At no time did Constable Strong leave the court with the impression that the subjective belief of the police depended on the warrant being issued. [ 29 ] The trial judge made no adverse credibility finding against Constable Emberley. She effectively decided that Constable Emberley did not subjectively believe he had grounds to arrest Mr. Day because he was not willing to say that he would have arrested Mr. Day even if the judge had not issued the warrant.

Her reasons do not explain how she moved from the hypothetical evidence to her conclusion that the officer lacked subjective belief, making it impossible for this Court to reconstruct her chain of reasoning. However, no correct application of the subjective test could justify her conclusion. She rested her decision on what she inferred Constable Emberley’s belief might have been in a different set of circumstances. In the absence of evidence linking Constable Emberley’s belief in grounds for arrest to the warrant being issued, the evidence respecting the hypothetical was irrelevant.

The trial judge’s failure to state and apply the legal standard for subjective belief set out in Feeney and her failure to consider the relevant evidence respecting Constable Emberley’s subjective belief and instead resting her decision on irrelevant evidence, is an error of law. [ 30 ] If the trial judge had started with the subjective legal standard as established in Feeney and applied it to all of the relevant evidence, her reasoning would have led her to the determination that Constable Emberley had the requisite belief in the grounds to arrest Mr. Day.

The uncontroverted evidence clearly substantiated Constable Emberley’s subjective belief in the grounds at the time he directed the arrest. [ 31 ] To the extent that the trial judge’s determination that Constable Emberley’s subjective belief can be said to be a factual finding, it constitutes palpable and overriding error. Again, Constable Emberley’s subjective belief in his grounds for arresting Mr. Day is what Constable Emberley believed at the time he directed the arrest.

Inferring that he lacked subjective belief from his hesitation to answer a question premised on the hypothetical that the warrant had not been issued is not a logical inference, for it does not follow that Constable Emberley’s belief would have been affected by the warrant not being issued, as discussed above. Accordingly, such a finding was not open to the trial judge on the evidence, and is therefore unreasonable. Drawing an unreasonable inference constitutes palpable and overriding error. (See: H.L. v.

Canada (Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401 at para. 56 .) Was the subjective belief in grounds for arrest justifiable from an objective point of view? [ 32 ] The trial judge also concluded that Constable Emberley’s professed subjective belief in grounds for arresting Mr.

Day was not objectively reasonable, saying at paragraph 27: Looking at this information from an objective perspective, it is my finding that a reasonable person placed in the position of the officer would not be able to conclude that there were reasonable and probable grounds for the arrest to have been made at the time and the place that it occurred.

Nothing was known or observed to elevate the grounds beyond mere suspicion and certainly nothing was known that would reach the level of credibly-based probability that an indictable offence had been committed. [ 33 ] The Crown argues that the trial judge erred in deciding that a reasonable person placed in the position of Constable Emberley

would not be able to conclude that he had reasonable and probable grounds to arrest Mr. Day, and contends that a proper assessment ofthe grounds for arrest shows that there was ample evidence to meet the legal standard that the grounds were objectively reasonable. [34] The arrest of Mr. Day was based on an investigation prompted by a tip received from an informant. The value of informants tothe enforcement of criminal law in this country has long been recognized and respected (R. v. Scott, (SCC), [1990] 3S.C.R. 979, pp. 993-994; and R. v. Leipert, (SCC), [1997] 1 S.C.R. 281, para. 9).

However, informant information canbe variable in its reliability, and care must be taken by the police not to act on it precipitously or cavalierly. This was recognized by theSupreme Court in Debot; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; and R. v. Greffe, (SCC), [1990]1 S.C.R. 755. In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval LamerC.J.’s adoption of Martin J.A.’s statement in R. v. Debot (1986), (ON CA), 30 C.C.C. (3rd) 207 (Ont.

C.A.), a caseinvolving the lawfulness of a warrantless arrest, as the test for assessing confidential informer’s information: I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable groundsfor conducting a warrantless search ….

Highly relevant … are whether the informer's ‘tip’ contains sufficient detail to ensure that it isbased on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether thereare any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her storyby police surveillance. [35] Justice Sopinka went on to say, at page 1456, that “[h]earsay statements from an informant can provide reasonable and probablegrounds to justify a search” but warned that evidence of a tip from an informer by itself is insufficient to establish reasonable andprobable grounds.

He concluded at page 1457 that “[t]he reliability of the tip is to be assessed by recourse to ‘the totality of thecircumstances’ ”, and said “[t]here is no formulaic test as to what this entails. Rather, a court must look to a variety of factors including:1) the degree of detail of the ‘tip’, 2) the informer’s source of knowledge, and 3) indicia of the tipster’s reliability”. [36] The phrase “totality of the circumstances” originated in Debot, a case concerning reasonable and probable grounds to arrestwithout a warrant.

At page 1168 of Debot, Wilson J. had identified for consideration the three factors Sopinka J. set out in Garofoli, andstated that she did “not suggest that each factor forms a separate test. Rather, … [it is] the ‘totality of the circumstances’ [that] must meetthe standard of reasonableness.” [37] In R. v. Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.), the Ontario Court of Appeal considered themeaning of the phrase “totality of the circumstances” in the context of a warrantless arrest and search.

At paragraph 22 of the decision,Doherty J.A. states that “the totality of the circumstances approach is inconsistent with elevating one circumstance to an essentialprerequisite to the existence of reasonable grounds.” See also R. v. Burke, 2011 NBCA 51, 374 N.B.R. (2d) 255 and R. v. Goodine, 2006NBCA 109, 307 N.B.R. (2d) 178, in which the New Brunswick Court of Appeal interpreted the phrase in the same manner. [38] Debot directs that police must attempt to confirm details in an informant’s tip.

However, in doing so, it is not necessary toconfirm each and every detail, although the level of verification required may be higher in cases where the informant’s own credibilitycannot be assessed (page 1172). Both Garofoli (paragraph 67) and Debot (pages 1168 to 1171) stress that the credibility of the informantand the source of his or her information are very important. [39] In considering the reliability of a tip, it is important to restate that the police need only reasonable grounds, not more. InStorrey, the issue was whether the police had reasonable and probable grounds for arresting Mr.

Storrey without a warrant. The Courtobserved the importance of requiring the police to have such grounds and the need to reasonably balance “the individual’s right to libertyand the need for society to be protected from crime” at pages 249 to 250, but stated that the police need not establish more thanreasonable and probable grounds. By way of explanation, the Court quoted from page 329 of Dumbell v.

Roberts, [1944] 1All E.R. 326(C.A.) as follows: The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes forsuspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to thecommunity; but the power may easily be abused and become a danger to the community instead of a protection.

The protection of thepublic is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall beforearresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited.

The policeare not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as thecircumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shutyour eyes to the obvious is not to act reasonably. [40] In Storrey, the Court found that the police had established both their subjective belief in grounds for arresting Mr. Storrey, andthat their subjective belief was justifiable from an objective point of view, making the warrantless arrest of Mr. Storrey lawful.

Storreyalso decided that the professed intention of the police to continue an investigation after an arrest does not invalidate an otherwise lawfularrest. In Storrey, the police had stated their intention to continue to investigate the case after they arrested Mr. Storrey – to conduct anidentification line-up, among other things – and Mr. Storrey had argued that this professed intention invalidated the lawful arrest. TheCourt rejected Mr. Storrey’s argument, stating at page 254, … it has long been the rule in Canada … that the police can continue their investigation subsequent to an arrest.

The essential role of thepolice is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continuedinvestigation will benefit society as a whole and not infrequently the arrested person. [41] This Court considered the reliability of an informant’s tip in the context of Crown appeals relating to the existence of groundsfor warrantless arrests in Warford and in R. v. McCabe, 2008 NLCA 62, 280 Nfld. & P.E.I.R. 250. In Warford, the police had received atip from an informant that Mr.

Warford had received a shipment of cocaine and would be selling it in the area that day. The informant’stips had proved reliable on six prior occasions. The tip included details that Mr. Warford drove a black pickup truck and that he wouldbe leaving his residence late in the evening and driving to a night club where he would be selling the cocaine. The police had additionalinformation, received independently of the tip, that Mr. Warford had previously sold cocaine in Labrador.

[ 42 ] The police verified Mr. Warford’s address and the vehicle he drove and conducted surveillance on his residence. They observed him leaving his home at 11 p.m. and driving in his truck towards the nightclub. They arrested him, and a search of his person yielded six packets of cocaine valued at $810. The trial judge found that the search of Mr. Warford was not lawful because there were no reasonable grounds for it and that Mr. Warford’s

section 8 Charter right was breached, and he excluded the evidence. [ 43 ] Welsh J.A. for this Court assessed both the subjective and objective grounds for arresting Mr. Warford and found that both prongs of the Storrey test were satisfied. With regard to the objective prong, she applied the Garofoli test, and found that the tip came from a proven reliable source, the police had verified some details of the tip (Mr.

Warford’s address, the type of vehicle he drove, and that he was driving toward the nightclub), and that there was independently received information that he had previously been selling cocaine in Labrador. She concluded that “in the totality of the circumstances”, a reasonable person in the position of the police would conclude there were reasonable and probable grounds for arresting Mr. Warford. Welsh J.A. went on to find that the search was lawfully conducted incident to Mr. Warford’s arrest and that there was no reason to exclude the evidence. [ 44 ] In McCabe , the police had received a tip that Mr.

McCabe would be driving a car containing marihuana which he planned to sell. The police arrested Mr. McCabe and frisked him. Seeing nothing visible in the vehicle, the police moved the car to an abandoned parking lot and arranged for a police dog to search it. The dog found a quantity of drugs in the sleeve of a coat which was on the rear seat of the car. [ 45 ] The trial judge found that the information received by the police did not provide them with reasonable and probable grounds to search the vehicle. He decided that the detention of Mr.

McCabe was lawful, but the search of his vehicle was not because there was nothing found on Mr. McCabe and nothing visible in the car to prompt further search. The trial judge concluded that the police dog search of Mr. McCabe’s car violated his

section 8 Charter right, and he excluded the marihuana evidence under subsection 24(2) of the Charter . Mr. McCabe was acquitted and the Crown appealed. [ 46 ] Barry J.A. for this Court agreed with the trial judge that Mr. McCabe had not been arbitrarily detained ( Charter ,

section 9), but found that the trial judge had failed to consider whether the warrantless search by the police dog was a lawful one incident to Mr. McCabe’s arrest. Barry J.A. applied the Garofoli test to the evidence, and determined that Mr.

McCabe’s arrest was lawful, stating at paragraph 26 that “it is the indicia of the informer’s reliability from past performance, combined with some slight confirmation from Constable Bill’s other investigative sources, that provides the main basis for finding that, both subjectively and objectively, reasonable grounds for arrest existed.” [ 47 ] Barry J.A. went on to conclude that because Mr. McCabe’s arrest was lawful, and because the search of his vehicle was conducted for the valid purpose of securing evidence, the search of Mr.

McCabe’s vehicle was a lawful one incidental to his arrest, and there had been no breach of Mr. McCabe’s

section 8 Charter right and therefore no basis on which to exclude the evidence. [ 48 ] The arrest of Mr. Day was prompted by informant information. The “totality of the circumstances” on which the objective assessment of the grounds for Mr. Day’s arrest had to be considered was the degree of detail in the information which had come from Source B, the source of Source B’s knowledge, and the police investigation including the corroboration of any details of the tip, the reliability of Source A, additional information learned and their surveillance. [ 49 ] Source B was the prompting tipster.

He or she provided details in the tip, including the address of Mr. Day and his roommate, descriptions of their vehicles, the fact that they possessed firearms and the fact that they were in possession of quantities of drugs, including a couple of pounds of marihuana, which they were actively selling. [ 50 ] Constable Emberley testified as to Source B’s reliability. The officer stated that he had received information from Source B on 20 occasions, and whenever the police had acted on his or her information in the past it had proved to be accurate.

He said that Source B’s motivation for informing was financial, and that he or she was paid only if the tips were accurate. Constable Emberley said that the police had never been misled by Source B, nor had Source B ever exaggerated his or her information. Importantly, he also stated that Source B’s information was based on personal observations and conversations with Mr. Day and his roommate. [ 51 ] The details of the tip were that Mr.

Day and his roommate were in possession of quantities of specific drugs, including marihuana, which he and his roommate were actively selling, that they possessed firearms, where they lived and the vehicles (including plate numbers) they drove. Constable Emberley was reluctant to provide further details of the tip to the Court out of concern that he could breach his informer’s privilege. [ 52 ] The residential and vehicle details Source B provided about Mr. Day and his roommate were verified by the police. In verifying Source B’s information about Mr. Day’s car, the police learned that Mr.

Day had been arrested for marihuana possession in 2010 and had been found in possession of digital scales at that time. Although he was not ultimately charged on that occasion, the information suggested that Mr. Day had been involved in drug trafficking. [ 53 ] Information about Mr. Day’s roommate was also checked, and it was learned that he was known to the police as a person involved in the drug trade, and that he had a previous conviction for possession of a

Schedule 1 drug. Moreover, the police checked with another informant, Source A, and verified that the roommate was involved in the drug trade. The evidence was that Source A was also a proven reliable informant. [ 54 ] The Crown also referenced that the surveillance of Mr. Day in a downtown bar on a weekday afternoon strengthened their grounds for arrest because it was consistent with police experience that drug traffickers frequently conduct their business at such times in such places.

The Crown did not suggest that this information weighed heavily in the mix, only that it was helpful. [ 55 ] In many ways the grounds in this case are like those in Warford : the informant’s reliability was unassailable, some details ‒ like the accused’s address and the type of vehicle he drove ‒ were verified, and there was some independently received information that both Mr. Warford and Mr. Day had been involved with drugs on a prior occasion. The informant information in Warford was more detailed in that it specified that Mr.

Warford would be going to a nightclub that evening to sell cocaine, whereas the information in this case was that Mr. Day was actively selling drugs. However, in this case, the informant information was arguably more reliable, in that it came

from a very reliable source, and from the informant’s first-hand knowledge, the latter being one of the three Garofoli factors which wasnot present in Warford. McCabe also compares favourably to this case in that the informant was very reliable and there was someindependent confirmatory information.

The reliability assessment of the McCabe tip does not appear to have been as strong as it is in thiscase, yet the Court found that the grounds for arrest satisfied the Garofoli and Debot criteria. [56] The trial judge’s decision that the grounds for arrest were not reasonable was based on her view that nothing had been done toelevate the grounds beyond mere suspicion. With respect, I must disagree.

As noted above, the tip provided detail, which the policeverified to the extent they reasonably could (see Warford, paragraph 27), and they gained supportive information from a secondinformant and from their own system checks. The source of Source B’s tip was first hand and there were strong indicia of his or herreliability. Source A’s reliability was also very strong. In her brief analysis of whether the grounds for arresting Mr. Day wereobjectively reasonable, the trial judge failed to consider the information from police system checks suggesting Mr.

Day was involved indrug trafficking in the past and most importantly, she failed to consider the reliability of Source B and the fact that the source of his orher information was firsthand. [57] Accordingly, the trial judge erred in law by failing to apply the correct legal principles set out in Storrey, Debot and Garofoli tothe evidence. Had she applied the law as set out in the jurisprudence, and followed by this Court in Warford and McCabe, she wouldhave concluded that, in the totality of the circumstances the belief in grounds for arresting Mr. Day was objectively justifiable.

The tipitself provided detail beyond a bald conclusionary statement that Mr. Day was trafficking in drugs, some of the details werecorroborated, the reliability of Source B was very high and his or her source was first hand, and additional investigation and surveillanceserved to support the belief in grounds. [58] In

summary, application of the correct law to the evidence in this case clearly shows that Constable Emberley had a subjectivebelief in grounds to arrest Mr. Day and that his grounds were objectively reasonable.

Section 9 Charter Right [59] Both the subjective and objective prongs of the Storrey test being met, the arrest of Mr. Day was lawful. As his arrest waslawful, it follows that he was not arbitrarily detained, and that he did not suffer a breach of his

section 9 Charter right.

Section 8 Charter Right [60] The search of Mr. Day’s vehicle was conducted without a warrant. It is well established that the police may conductwarrantless searches pursuant to the common law doctrine of search incident to arrest (R. v. Caslake, (SCC), [1998] 1S.C.R. 51) provided certain conditions are met. Those conditions are that 1) the arrest cannot be arbitrary or otherwise unlawful, 2) thesearch must be conducted incident to the arrest, and 3) the manner in which the search is carried out must be reasonable (Caslake and R.v. Stillman, (SCC), [1997] 1 S.C.R. 607).

At paragraph 25 of Caslake, Lamer C.J. explained that in order for a searchto be truly incidental to an arrest, the police must be able to provide a valid purpose for their search. The Chief Justice went on toidentify that protecting the police and protecting and discovering evidence were valid purposes for conducting searches incident toarrest. [61] The evidence is that the police searched Mr. Day and his car for the purpose of discovering evidence. Constable Strongtestified that police protection was not an issue with respect to the search of Mr. Day’s vehicle. Whether that was a reason for the searchof Mr.

Day’s person was not addressed at trial, although it is often the reason for a personal search. In any case, searching to discoverevidence is a valid reason for searching incident to arrest (Caslake). [62] The police search of Mr. Day and his car were lawful as established above. The searches were conducted for a valid purpose inthat they were conducted for “an objectively reasonable rationale related to the arrest” as Welsh J.A. reasoned at paragraph 31 ofWarford. The first two conditions set out in Caslake are therefore met. [63] The trial judge found the public manner of the search of Mr.

Day and his vehicle to be intrusive and “in complete disregard ofhis Charter rights”. While she made this finding in conducting her subsection 24(2) analysis, it relates to whether the manner in whichthe search of Mr. Day was carried out is reasonable, and therefore must be addressed at this juncture. [64] The searches of Mr. Day and his car were carried out by plainly clothed police on a downtown street at 4:30 p.m. on a weekdayafternoon. Mr. Day was with the two women who left the bar with him when arrested. They were promptly advised by police that theycould leave the scene and they did. Mr.

Day was co-operative, and he was placed into a police vehicle immediately after he was frisked. The police gave evidence that they arrested Mr. Day as soon as he started the engine of his car so as not to lose him by letting him driveaway. [65] In my view, the time and place of the search were called for in the circumstances. There was nothing abusive about the searchof Mr. Day and nothing done to him or in the searching of his car that could lead to the conclusion that the search was carried out in anunreasonable manner.

While respect for the privacy and dignity of accused persons is always called for, the police cannot be expected toconduct their work at times and places which are optimal from the point of view of persons involved in investigations. Accordingly, Iconclude that the search was carried out in a reasonable manner. [66] In the result, the searches of Mr. Day and his car were lawfully conducted incident to his arrest, and he suffered no breach ofhis

section 8 Charter right. There is therefore no reason to exclude the marihuana, cell phones, and drug paraphernalia from theevidence at his trafficking trial. In these circumstances, there is no need to consider the subsection 24(2) Charter issue. DISPOSITION [67] In conclusion, I would allow the Crown’s appeal and remit the matter to Provincial Court for a new trial.

_________________________________ L. R. Hoegg J A. I Concur: _______________________________ B. G. Welsh J.A. Dissenting Reasons by Rowe J.A. [ 68 ] I have read the reasons for decision of my sister Hoegg. With respect, I disagree with the analysis and the result. [ 69 ] The key question is whether Mr. Day’s arrest was lawful. The trial judge held that it was not, on two bases: first, the arresting officer did not subjectively have “reasonable and probable grounds” to arrest Mr.

Day; second, the officer did not objectively have “reasonable and probable grounds” to do so. [ 70 ] Ordinarily, whether the arresting officer subjectively has “reasonable and probable grounds” is not a live issue. It is so in this case because of the fact that the police obtained a warrant to search Mr. Day’s house and relied (in part) on the granting of the warrant as grounds for the arrest. As the Crown states at paragraph 57 of its Factum: [T]he search warrant [for Mr. Day’s house] was issued, which Cst.

Emberley [the officer who ordered the arrest] quite correctly understood to be a judicial affirmation of his grounds of belief. I will refer to Constable Emberley as the arresting officer as it was his decision to make the arrest. [ 71 ] However, as the Respondent’s Factum states at paragraph 7: The Crown conceded at trial that the Search Warrant granted just before the arrest of the Appellant did not have sufficient information to justify its granting. [ 72 ] The Crown referred this Court to R. v. Cheng , supra , dealt with in paragraph 27 above.

The majority in this case wrote that in Cheng , the British Columbia Court of Appeal rejected the accused’s argument “that because the warrant authorizing the search [of Cheng’s house] had been invalidated, the officer’s subjective grounds were vitiated”. [ 73 ] In paragraph 27 above, the majority continued: [The British Columbia Court of Appeal] stated that the invalidation of a search warrant did not vitiate an arresting officer’s belief in his subjective grounds for arrest, nor did it oblige the officer to alter his belief to conform with the opinion of the judge who invalidated it. [ 74 ] Does Cheng assist the Crown?

No, it does not. The reason is this: unlike the situation in Cheng , in this case the arresting officer did not believe that he had “reasonable and probable grounds” independent of the search warrant being granted. Rather, he believed that he had such grounds (in part) because the search warrant had been granted, as the Crown indicated in paragraph 57 of its factum, quoted above. [ 75 ] At page 80 of the transcript, the following question by Mr. Day’s counsel and answer by Constable Emberley appear: Q.

Okay so you’re saying that if the judge had not signed the warrant you still would’ve taken the change (sic) and arrested Ryan Day? A. Your Honour, again, I can’t truthfully answer that question because I don’t know why a judge would not have signed the warrant. I mean there could be a number of reasons why and I don’t know why and I’m speculating because at the end of the day the judge did sign the warrant. [ 76 ] Thus, when the officer was asked whether he would have arrested Mr. Day if he knew the search warrant was invalid he equivocated.

Based on this, the trial judge found as a matter of fact that the officer did not subjectively have “reasonable and probable grounds” to arrest Mr. Day, absent the search warrant. The inference drawn by the trial judge from the arresting officer’s testimony is simple and logical. Because he couldn’t say whether he would have had grounds to make the arrest in the absence of the search warrant, then that prong of the test was not made out. [ 77 ] The majority deals with this in paragraphs 17-31 above. They conclude that the trial judge erred in her conclusion on this issue.

I do not agree with their analysis for two reasons. First, they do not refute the logical point set out above that the onus is on the Crown to show that subjectively the arresting officer did have “reasonable and probable grounds” and that an equivocal answer cannot meet this onus. Second, they apply the wrong standard of review. For a factual finding, which this is, the standard of review is not “correctness”, but rather “palpable and over-riding error”. No such error has been shown.

The majority would simply come to a different factual finding than would the trial judge, something that it is not open to them to do in the absence of “palpable and over-riding error”. [ 78 ] The subjective prong of “reasonable and probable grounds” is a factual matter; did this arresting officer have or not have the requisite personal belief. This differs from the objective prong, which deals with whether any arresting officer in the circumstances of this arresting officer would have had “reasonable and probable grounds.” In grammatical terms, the subjective prong engages the

indicative mood (“ did ” this officer) while the objective prong engages the conditional mood (“ would ” another officer in the circumstances of this officer). [ 79 ] Logic, like mathematics (itself a form of logic), yields results that are demonstrably correct. If a proposition of law defies logic, then it is unsound. It cannot stand.

Such is the case for the proposition of law set out by the majority in paragraph 12, which reads (in part): If each prong of the Storrey test is viewed as a separate but essential legal standard that has to be met to inform the ultimate ruling, then determinations respecting applications of both the subjective and objective legal standards to the evidence are questions of law, and appeals related to each of the determinations would be judged on a standard of correctness. [ 80 ] Where the application of a test consists of making a finding of fact (and no more) the standard of review cannot be correctness, as to give effect to such a proposition would be to collapse the “palpable and overriding error” standard for findings of fact into the “correctness” standard for questions of law.

The application of a test consisting of making a finding of fact must be an exception to the general proposition that the application of a legal test is a question of law reviewable on the correctness standard. [ 81 ] To put it in logical terms: - A is the correctness standard - B is the palpable and overriding error standard - A and B are mutually exclusive - thus, while A can apply or B can apply, A and B cannot both apply - the effect of the proposition set out in paragraph 12 is that A is put in the place of B, thereby displacing B. [ 82 ] I would note a related passage from paragraph 16: [T]he determination of subjective belief in grounds for arresting a person results from application of the legal standard for subjective belief to the evidence.

In situations where the determination is informed by a simple factual finding, that simple factual finding would be reviewable on a standard of palpable and overriding error. However, insofar as the determination calls for the application of a legal standard ( Feeney ) to evidence, the resulting determination is reviewable on a standard of correctness ( Shepherd ).

If a trial judge applies a misunderstood notion of the test for subjective belief to the evidence or ignores material evidence in making his or her determination, he or she would be erring in law, and the resulting determination would be reviewable on a standard of correctness. [ 83 ] The foregoing does not hold water. What is the distinction between “a simple factual finding” and the “application of the legal standard for subjective belief to the evidence”? Other than the form of words used, there is none; they are the same thing, by another name. Thus, the distinction sought to be drawn is invalid.

Beyond this, it constitutes an invitation for appellate courts to treat (at least certain) findings of fact as reviewable on a standard of correctness. That conflicts with the principles in Housen v. Nikolaisen , [2003] 2 S.C.R. 235, 2002 SCC 33 . The practical consequence is to lay open a path for the retrial of cases on appeal. [ 84 ] In paragraph 31, the majority deals with the issue of subjective belief as a factual finding and states that “it constitutes palpable and overriding error”.

The majority refer to their analysis from paragraph 17 onward as the basis for this conclusion. [ 85 ] I would note what the Supreme Court wrote in Housen v. Nikolaisen : 5 What is palpable error? The New Oxford Dictionary of English (1998) defines “palpable” as “clear to the mind or plain to see” (p. 1337). The Cambridge International Dictionary of English (1996) describes it as “so obvious that it can easily be seen or known” (p. 1020). The Random House Dictionary of the English Language (2nd ed. 1987) defines it as “readily or plainly seen” (p. 1399). 6 The common element in each of these

definitions is that palpable is plainly seen. … Where it takes many pages to explain an alleged factual error, in my view, it is not “plainly seen”. Rather, what is occurring is a retrying of the (factual) issue based on the transcript by the appellate court. [ 86 ] In Housen v. Nikolaisen , the Supreme Court made clear that is not our role.

In paragraph 3, the Supreme Court adopted the following passage: The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities. But, that is what in my view the majority has done regarding this issue. [ 87 ] I will now turn to the objective “reasonable and probable grounds”. Before dealing with the trial judge’s reasons in this regard, I will comment on the Warford and McCabe decisions relied on by the majority.

It is not sound reasoning to say, “the facts in this case resemble those in a previous case, therefore the result should be the same”. What is required is to identify what was key or essential to the earlier decision and then see if the facts of the current case also contain that element. Both Warford and McCabe differ from this case in a fundamental and not merely an incidental way; they are distinguishable based on a key element, the level of detail in the informant’s tip. [ 88 ] I would note what Justice Sopinka wrote at paragraph 68 of Garofoli:

The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from the other investigative sources. I would note, as well, the passage from Debot , quoted in paragraph 34. [ 89 ] In Warford , it was the reliability of the informant combined with the detail he provided that was key for the result. The Court of Appeal held there were “reasonable and probable grounds” for Mr. Warford’s arrest. I readily agree. But the key difference between Mr. Warford and Mr. Day is the detail provided by the informant. If in Mr.

Day’s case the informant had said that he was bringing drugs in his car to a certain bar to sell on the afternoon in question and the police observed him driving to the bar at the time indicated by the informant, the judge could readily have concluded that Mr. Day’s arrest was lawful. But, those are not the facts. The informant’s tip did not put Mr. Day and the drugs in a given place at a given time as in Warford . Instead, the police simply followed Mr. Warford to a bar in circumstances not addressed by the informant, and then arrested him. There was not present the detail from the informant in Mr.

Day’s case that there was in Mr. Warford’s. [ 90 ] In McCabe , as in Warford , the informant’s tip placed Mr. McCabe in a given car at a given time on a given road and said that Mr. McCabe was going to a given community to sell drugs which he would have in the car with him. With such information from a reliable source, I agree that Mr. McCabe’s arrest was lawful. But, again, the facts in this case are different in the key element of detail or (a word I prefer) specificity. [ 91 ] I am in agreement that if Mr. Day’s arrest was lawful (as was Mr.

McCabe’s), then the evidence found when the police searched his car should not be excluded. But, this begs the question, “Was Mr. Day’s arrest lawful”? On this hinges the outcome of the case. [ 92 ] The trial judge held that the arresting officer did not have, objectively, “reasonable and probable grounds” for the arrest. Here is what she wrote: [25] Because there were no subjective grounds for the arrest, it is unnecessary to do an analysis of whether they are objectively justifiable. However, the exercise is still worthwhile. [26] In essence, the information against Ryan Day may be summarized as follows: 1.

Source “B” said that he drove a black Honda which was confirmed by police. 2. Source “B” said that he lived at 148 Canada Drive which was confirmed by police. 3. Source “B” said that he possessed weapons which was not confirmed by police. 4. Source “B” said that he had a couple pounds of marihuana and lots of steroids at his residence and was actively selling drugs which was not confirmed by police. 5. Source “A”, the most reliable informant that the RCMP were using at the time, made no mention of Ryan Day. 6.

Police investigation showed that he had been arrested, but was never charged, in 2010 with possession of suspected marihuana. He had a set of scales at the time. Constable Emberley said this could be consistent with trafficking, as drug traffickers use scales. 7. Police investigation showed that he went to a bar on George Street at 3:43 p.m. on a Tuesday afternoon.

Constable Emberley said this could be corroborative of drug trafficking as drug traffickers do conduct drug deals downtown. [27] Looking at this information from an objective perspective, it is my finding that a reasonable person placed in the position of the officer would not be able to conclude that there were reasonable and probable grounds for the arrest to have been made at the time and the place that it occurred.

Nothing was known or observed to elevate the grounds beyond mere suspicion and certainly nothing was known that would reach the level of credibly-based probability that an indictable offence had been committed. [28] Consequently, neither subjective nor objective grounds to arrest Ryan Day existed on October 18, 2011. The foregoing is, in my view, succinct, clear and logical. [ 93 ] Legal tests are meant to set out a framework for analysis, which framework is applied to be in the circumstances of each case. I say that is what the trial judge did here; the majority has a contrary view.

They state in paragraph 57: [T]he trial judge erred in law by failing to apply the correct legal principles set out in Storrey , Debot and Garofoli to the evidence. Had she applied the law as set out in the jurisprudence, and followed by this Court in Warford and McCabe , she would have concluded that, in the totality of the circumstances the belief in grounds for arresting Mr. Day was objectively justifiable. The tip itself provided detail beyond a bald conclusionary statement that Mr.

Day was trafficking in drugs, some of the details were corroborated, the reliability of Source B was very high and his or her source was first hand, and additional investigation and surveillance served to support the belief in grounds. [ 94 ] What the majority arrives at are fundamentally different conclusions than those the trial judge set out in paragraph 27 of her

decision, that: (a) “[n]othing was known or observed to elevate the grounds beyond mere suspicion” and (b) “nothing was known that would reach the level of credibly-based probability that an indictable offence had been committed”. [95] Having received the tip, the police confirmed the information concerning Mr. Day’s home address and the car he drove. Theyfollowed him downtown and observed him enter and leave a bar. That was their investigation. What did it yield? Nothing of anyconsequence. In essence, the police received information from reliable informants and arrested Mr. Day.

That had to be the basis oftheir actions, as their investigation added nothing of consequence. [96] One should ask, what if the police had not found drugs in Mr. Day’s car? What would have happened next? They would havehad to release him. What would have been the lawful basis to take him into custody? I see none. Can it be sufficient grounds for anarrest that an informant, however reliable, asserts that someone is dealing in drugs and that he has them at his house?

Should such abroad, general accusation, as was made here, standing almost on its own, constitute the basis for a lawful arrest? [97] Sopinka J. wrote in Garofoli at paragraph 68 concerning such a situation: Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from aninformer, by itself, is insufficient to establish reasonable and probable grounds. What the police had beyond the informant’s tip was of no consequence. [98] Provincial Court Judge Fradsham made a good logical point in R. v.

Hilts (1997) (AB CJ), 203 A.R. 161 atparagraph 30: The “anticipated pattern” in this case was the accused driving to High River in a particular motor vehicle. The fact pattern occurred. However, can one say that those two facts give any credence to the allegation of criminal activity by Mr. Hilts? In my view, if the policeplace reliance on an informer’s “tip” because some facts in that “tip” have been verified by them, then that “verified” information mustbe material to the criminal activity alleged by the informant. Otherwise, the exercise of verification is really an exercise inbootstrapping.

Unverified allegations of crime are not bolstered because they are made with verified allegations of unrelated, innocentfacts. [99] A similar view was set out by Allen J. in R. v. Mori, 2012 ONSC 3433 at paragraph 56: They confirmed Mr. Cutajar’s identity, his residential address, and his telephone number. Although accurate that information does notassist with predicting a criminal offence. [100] The Crown has conceded that what the police had was insufficient to properly obtain a search warrant for Mr. Day’s residence. They now assert it was sufficient to arrest him.

Must not the grounds for laying hands on a citizen, hand cuffing, searching andconfining him be greater than for entering his house? Must they not at least be equal? I would say “yes”. [101] I understand that my view in this may run counter to that expressed by this Court in McCabe at paragraph 23, which seemed to putthe threshold for arrest lower than that for a search. I cannot agree.

The loss of liberty is an interest of a higher order even than thesanctity of one’s home. [102] In the result, I agree with the trial judge’s statement in paragraph 35 of her decision: Because no reasonable and probable grounds for the arrest existed in this case on either a subjective or objective basis, it is completelyarbitrary. Consequently, the breach of Mr. Day’s s. 9 rights was extremely serious. [103] Mr. Day’s arrest was arbitrary and unlawful. It cannot seriously be argued that a search “incidental” to such an arrest waslawful. It was not.

To permit the Crown to put into evidence the fruits of such arbitrary and unlawful conduct would bring theadministration of justice into disrepute. While society’s interest in adjudication on the merits must always be considered, the trial judgedid not err when she concluded that, in the circumstances of this case, pursuant to s. 24(2) of the Charter, the evidence found when Mr.Day’s car was searched should be excluded. I would have dismissed the appeal and affirmed the trial judge’s decision. [104] I would add a further point in obiter. What the police did here is clear. They wanted to see if Mr.

Day had drugs in his car. So,they arrested him in order to make a search of his car “incidental” to the arrest. While it is not necessary for the disposition of this case,I would question whether the officers acted in good faith. Must they not have understood that they were “pushing the envelope”? Thepolice “got lucky” by finding drugs in the trunk of Mr. Day’s car. But, as Justice Sopinka wrote (again) from paragraph 68 of Garofoli: The results of the search cannot, ex post facto, provide evidence of reliability of the information. The arrest of Mr.

Day was a clear abuse of authority, one that warrants censure by the courts. ___________________________________ M. H. Rowe J.A.