legally speaking - Justice Institute of British Columbia

[accused] in the house to the illegal drug
activity. It would not have taken much more but
the arresting officer chose to continue the
investigation with the [accused] under arrest,
rather than in less intrusive and restrictive
investigative detention. In so doing, he effected
an unlawful arrest in breach of the [accused’s]
rights under s. 9 of the Charter. [para. 14]
As for the trial judge’s s. 24(2) analysis, the Court of
Appeal was satisfied she weighed the appropriate
factors in excluding the evidence. The Crown’s
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca
ARREST DOES NOT REQUIRE
PRIMA FACIE CASE FOR
CONVICTION
R. v. Ash, 2010 BCCA 470
The accused was stopped by police
for failing to wear a seat-belt, an
offence under British Columbia’s
Motor Vehicle Act. The officer noticed
a jar in plain view on the front seat
console which contained a liquid he believed was
“hash oil” (cannabis resin oil). He continued dealing
with the seat-belt infraction. When he returned to
the vehicle the container was gone. The officer then
asked the accused to exit the vehicle whereupon he
was arrested for possessing a controlled substance. A
search of the vehicle incidental to the arrest
uncovered drugs, a knife, bear spray, a baton and a
significant amount of money. He was charged with
drug and weapons offences.
At trial in British Columbia Supreme Court the
accused challenged the admissibility of the items
found in his car on the basis that there were no
reasonable grounds for the
arrest and the search
violated his rights under s.
8 of the Charter. The trial
judge concluded that the
arrest was lawful and
admitted the evidence. The
accused was convicted of
Volume 11 Issue 1 - January/February 2011
PAGE 8
several offences.
“The issue is not whether the Crown
would be able to prove possession,
but whether the officer had
reasonable and probable grounds
for believing he did so.”
The accused then appealed, submitting that the
arrest was not reasonable. In his view, the officer did
not have a subjective belief that he was in
possession of the hash oil. Further, he contended
that the trial judge failed to apply the proper test for
assessing the grounds of arrest by conflating the
subjective belief of the police officer with the
required objective standard.
Justice Chiasson, speaking for the unanimous Court
of Appeal, first noted that s. 495(1)(a) of the Criminal
Code “authorizes a peace officer to arrest without a
warrant when on reasonable grounds he or she
believes an indictable offence has been committed
or is about to be committed.” This provision requires
the arresting officer to subjectively have reasonable
grounds upon which to base the arrest. As well,
those grounds must be justifiable from an objective
point of view - a reasonable person placed in the
position of the officer must be able to conclude that
there were indeed reasonable grounds for the arrest.
The police are not, however, required to
demonstrate anything more than reasonable
grounds. A prima facie case for conviction is not
needed before making an arrest.
In this case, it was apparent to the officer that the
accused was the owner and driver of the vehicle and
the hash oil container was in the front seat console
beside him. The officer testified that he found the
accused in possession of the hash oil. It was clear
that the officer reasonably believed the accused was
in possession of the drug. “The issue is not whether
the Crown would be able to prove possession,” said
Justice Chiasson, “but whether the officer had
reasonable and probable grounds for believing he
did so.” The Court of Appeal held that the officer’s
subjective belief was also objectively reasonable.
The Court rejected the accused’s assertion that the
reasonableness of the officer’s
belief was to be assessed from the
point of view of a neutral arbiter
free of the predilections and biases
of police. Instead, the proper
approach is to view the grounds
from the point of view of a
reasonable police officer in the