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COMPELLING APPEARANCE, DETENTION AND RELEASE - Arrest - Without a warrant

Tuesday, September 29, 2020 @ 6:22 AM  


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Appeal by the accused from conviction for possession of a stolen vehicle. The appellant was a passenger in the vehicle. A member of an anti-auto theft program conducted by police at the time located the stolen vehicle three and a half hours after it was stolen from outside the owner’s residence. The officer followed the stolen vehicle and recognized the driver as M, who was previously arrested in an anti-auto theft project. Police followed the vehicle and noted that the driver and passenger split up after leaving the vehicle and converged somewhere else a few moments later. The officer found this behaviour unusual. The trial judge found that, given the close timing between the theft of the vehicle and the time that the appellant was first observed in it, the appellant and M appeared to have abandoned the vehicle in a back alleyway, then split up only to rejoin a few blocks later, which might indicate a degree of co-ordination and co-operation between them, also given the officer’s knowledge of M’s criminal background, it was reasonable of the officer to infer that the appellant had knowledge that the vehicle was stolen. The appellant argued the judge erred in concluding that the officer had sufficient grounds for the arrest because there was no reasonable basis upon which the officer could or did believe that the appellant knew the vehicle was stolen and had the requisite measure of control over the vehicle to possess it.

HELD: Appeal dismissed. The judge did not err in concluding that the arresting officer had reasonable and probable grounds to arrest the appellant for unlawfully possessing the stolen vehicle based on the totality of the circumstances. The judge did consider whether the officer had reasonable grounds to believe the appellant had the requisite level of knowledge and control to justify arresting him for possession of stolen property. It was also clear that the facts, as the judge found them, could constitute objectively reasonable grounds for the appellant’s arrest either as a co-principal or a party to the offence. Assessed through the lens of an experienced officer, there was an objectively reasonable probability in all of the circumstances, viewed cumulatively, that the appellant and M had together committed the continuing offence of unlawfully possessing the stolen vehicle prior to its abandonment in the alley, regardless of whether the appellant was apparently in joint possession of the vehicle with M as a joint-venturer and co-principal or whether, as an apparently voluntary passenger, he encouraged and thus abetted M in his unlawful possession of the vehicle.

R. v. Harms, [2020] B.C.J. No. 1332, British Columbia Court of Appeal, M.V. Newbury, G. Dickson and J.J.L. Hunter JJ.A., August 27, 2020. Digest No. TLD-September282020004