Focus On

COMPELLING APPEARANCE, DETENTION AND RELEASE - Arrest - Without a warrant - Reasonable and probable grounds

Monday, March 20, 2017 @ 7:49 AM  


Lexis Advance® Quicklaw®
Appeal by the accused, Quilop, from a conviction for possession of cocaine for the purpose of trafficking. Police received an anonymous tip the accused was involved in cocaine trafficking. No further details were provided regarding the accused or the informant's past involvement with police, if any. Police placed the accused under surveillance and observed interaction with another individual suspected of drug trafficking based on a similarly undetailed uncorroborated tip. The following day, police observed the accused have brief meetings with two individuals. After the first meeting, the individual exited the accused's vehicle after two minutes carrying an object the size of a baseball. The second meeting involved the accused enter and exit an apartment carrying a small pouch. Police arrested the accused hours later, seizing 30 bags of cocaine and crack cocaine, cash and cell phones in an incidental search. The trial judge determined police had reasonable and probable grounds to believe the accused had committed an indictable offence. The arrest was ruled lawful and the accused was convicted. The accused appealed.

HELD: Appeal allowed. The trial judge did not make a palpable and overriding error in finding that the lead investigator was the officer who made the decision to arrest. The ability of the commanding officer to countermand the decision did not alter the fact that it was the lead investigator who made the decision to arrest. The real issue was whether the various investigating officers who observed the accused prior to the arrest had reason to believe he was committing or had committed an indictable offence. The trial judge erred in finding objectively justifiable grounds for the arrest of the accused. The informant's tip amounted to an assertion without any basis to assess its reliability. The police's brief surveillance observations were also consistent with lawful behaviour, and did not objectively suggest the accused had committed or was about to commit an indictable offence. The police's mere suspicion of drug trafficking was insufficient to justify the arrest. It followed that the incidental search of the accused's vehicle was unlawful. The trial judge erred in finding no Charter infringing conduct. The trial judge's alternative s. 24(2) analysis erred in finding the public's interest in a trial on the merits offset the seriousness of Charter-infringing conduct, and its impact on the accused's Charter-protected interests. The circumstances justified exclusion of the evidence.

R. v. Basanez (appeal by Quilop), [2017] A.J. No. 179, Alberta Court of Appeal, R.L. Berger, P.W.L. Martin and B.K. O'Ferrall JJ.A., March 1, 2017. Digest No. 3643-002