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| Patrick J Ducharme |
The arresting person must have both “objective” and “subjective” grounds to arrest an accused for the commission of an indictable offence. Consequently, a court reviewing the grounds of arrest must conclude that the person making the arrest believes objectively that the grounds exist and that a reasonable person, in the position of the arresting person, would objectively believe that reasonable and probable grounds exist to justify the arrest. The absence of either objective or subjective grounds renders the arrest unlawful.
Uncorroborated statements, rumour, gossip and information that lack credibility or reliability will not suffice to form the basis of reasonable grounds.
For an arrest to be valid on the basis of reasonable and probable grounds, it is not sufficient for the police officer to subjectively believe that she has reasonable and probable grounds to make an arrest. It must also demonstrate that a reasonable person, standing in the position of the officer, would have believed that reasonable and probable grounds existed to make the arrest. Reasonable grounds therefore have both a subjective and an objective component. The police do not need to establish a prima facie case. An arrest that is lawful does not become unlawful because the police intend to continue their investigation after the arrest, nor does the arrest constitute a violation of s. 9 of the Charter.1 The police officer’s belief in the person’s guilt must take into account all the information available to him. He is entitled to disregard only what he has good reason to believe is not reliable.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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