Reasonable and Probable Grounds

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

See also: Reasonable Suspicion

The legal standard of "reasonable and probable grounds" is employed in many aspects of law enforcement. It is the threshold that a peace officer must satisfy before certain powers can be employed including arrest and searches.

This level of proof is the point where "the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion".[1]

The standard of reasonable grounds to believe is greater than mere suspicion but less than on a balance of probabilities when the totality of the circumstances are considered.[2] It is also greater than "[m]ere suspicion, conjecture, hypothesis or ‘fishing expeditions’".[3]

The purpose of emphasizing the "totality of the circumstances" is to "avoid concentrating on individual pieces of evidence".[4]

It is a standard of reasonable probability and is credibility based. It must be more than mere possibility or suspicion.[5] It is a standard of "credibly-based probability" [6]

It does not equate with "proof beyond a reasonable doubt" or to a "prima facie case".[7] It is not "proof absolute".[8]

In more recent times the standard has also been called "reasonable grounds to believe" [9] , "reasonable belief", "reasonable probability", and to a lesser extent "probable cause".[10] However, neither of these names have lasted.[11]

The Charter requires that any statutory provisions enabling search and seizure must be based on "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search"[12] These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure".[13]

Reliability of Information
The officer weighing evidence to be relied up on when justifying a search or arrest must be satisfied that:[14]

  1. was the information ... compelling?
  2. if the information is based on a tip, was the source credible?
  3. was the information corroborated prior to the police action?

Source of Information
Reasonable grounds need not be based on first hand knowledge. It should be based on the totality of circumstances.[15]

Appellate Review
Whether the judge's factual findings amount to "reasonable and probable grounds" is a question of law and is reviewable on a standard of correctness.[16]


  1. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, at p. 167 (cited to SCR)
    R v Sanchez 1994 CanLII 5271 (ON SC), (1994), 93 CCC (3d) 357, at 367 (Ont.Ct. Gen.Div.) ("The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted.")
    R v Ngo, 2011 ONSC 6676 (CanLII) at para 35
  2. R v Le 2006 BCCA 298 (CanLII) appealed to BCCA 463 (CanLII)
  3. R v Sanchez at para 31
  4. R v Slippery, 2014 SKCA 23 (CanLII), paras 21 to 22
  5. Hunter et al v Southam Inc.
    Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416
  6. R v Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (ONCA) at para 11
    Hunter v Southam Inc. at p. 167 (SCR)
  7. R v Ngo at para 35
    R v Jacobson, 2006 CanLII 12292 (ONCA)
  8. Ngo at para 35
    R v Smith, 1998 ABCA 418 (CanLII) at p. 77
  9. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII) at para 114
    Baron v Canada at para 42 to 44 - discussion of the difference between "reasonable grounds to believe" vs "reasonable and probable grounds"
    R v Loewen, [2011] 2 SCR 167, SCC 21 (CanLII), at para 5
  10. R v Law, 2002 BCCA 594 (CanLII) at para 3, 7
  11. e.g. R v Chehil, 2013 SCC 49 (CanLII)
  12. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, para 39
    Hunter v Southam Inc., at p. 168
    See also R v Vella (1984) 14 CCC 513(*no link)
    R v Harris, 1987 CanLII 181 (ON CA)
  13. Hunter v Southam at p. 168
  14. Debot [1989] 2 SCR 1140, 1989 CanLII 13 (SCC) at p. 215
  15. R v Yorke, 1992 CanLII 2521 (NS CA), (1992), 115 N.S.R. (2d) 426 (C.A.); aff'd 1993 CanLII 83 (SCC), [1993] 3 SCR 647
  16. R v Dhillon, 2016 ONCA 308 (CanLII), at para 22
    R v Shepherd 2009 SCC 35 (CanLII), [2009] 2 SCR 527, 309 D.L.R. (4th) 139 at para 18, 20 ("[w]hile 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")
    R v MacKenzie, 2013 SCC 50 (CanLII) at para 54
    R v Feeney, 1997 CanLII 342 (SCC) at paras 30, 33, 36
    R v Biccum, 2012 ABCA 80 (CanLII) at para 10
    R v Nicholson, 2011 ABCA 218 (CanLII) at para 14
    R v Mehari, 2011 ABCA 67 (CanLII) at paras 13-14
    R v Loewen, 2010 ABCA 255 (CanLII) at para 6, aff'd 2011 SCC 21
    R v Harding, 2010 ABCA 180 (CanLII) at paras 12-13
    R v Abdo, 2009 ABCA 340 (CanLII) at para 5
    R v Dill, 2009 ABCA 332 (CanLII) at para 4

A Context-Specific Standard

"Reasonable and probable grounds" will mean different things in different contexts.[1]

The standard will depend on the nature of the state interest and the individual's privacy interest being intruded upon. What is "reasonable" must be "flexible if it is to be realistic and meaningful".[2]

Whether the grounds exist is a "fact-specific determination in each case".[3] The ground must be "considered in their totality, not isolated out for independent evaluation".[4]

Search Warrants
In the context of a warrant search, there must be “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”.[5]

Arrest Powers
In the context of arrest, the empowering statute will require reasonable and probable grounds to believe the suspect committed the offence.[6]

  1. R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 (S.C.C.) at pp.304-6 per L'Heureux-Dube J.
  2. R v McKinlay Transport Ltd., [1990] 1 SCR 627, 1990 CanLII 137 (SCC)
  3. R v Ngo, 2011 ONSC 6676 (CanLII) at para 35
  4. Ngo at para 35
    R v Campbell, 2010 ONCA 588 (CanLII) at para 57 ("Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.")
    R v Nguyen, 2007 ONCA 24 (CanLII) at para 4 ("The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house")
  5. Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, at p. 167 (cited to SCR)
    R v Campbell, 2011 SCC 32 (CanLII), 2011 SCC 32 at para 14
  6. see R v Storrey, [1990] 1 SCR 241, 1990 CanLII 125 (SCC)

Subjective Factors

Experience and Knowledge of Officer
The court may consider the experience of a police officer when assessing whether the officer's subjective belief was objectively reasonable.[1]

The subjective component does not require that the police officer specifically testify to having a subjective belief. It can be inferred based on the surrounding circumstances.[2]

Operating on Agency
The searching or arresting officer may rely upon the assumption that the officer directing them has the requisite grounds.[3]

Mistaken Belief
In assessing the reasonableness, the judge must "measure the facts as the police officer honestly understood them to be".[4]

  1. R v MacKenzie 2011 SKCA 64 (CanLII) at para 27
    see also R v Navales 2011 ABQB 404 (CanLII)
    R v Sanchez
  2. R v R.M.J.T., 2014 MBCA 36 (CanLII), at paras 56 to 58
    R v Jacob (J.A.), 2013 MBCA 29 (CanLII) at para 35
  3. R v Chervinski, 2013 ABQB 29 (CanLII) at paras 21 to 22
    Debot at para 50
  4. R v Slippery, 2014 SKCA 23 (CanLII) at para 32

Objective Factors

No Ex Post Facto Analysis
Evaluation of grounds is based on what facts the officer was aware of at the time. It not relevant whether the facts, circumstances or inferences made were infact true. It is only whether it was reasonable for the officer to believe that the officer's believed facts, circumstances and inferences were reasonable.[1]

Any evidence that comes to light after the formation of the grounds is not relevant.[2]

  1. R v Jacob (J.A.), 2013 MBCA 29 (CanLII) at para 35
    R v Slippery, 2014 SKCA 23 (CanLII)
  2. Slippery - context of observing "post demand conduct" in an impaired driving investigation

Inferences

See also: Inferences

The Justice of the Peace may draw "reasonable inferences" from the information found in the ITO.[1]

"[R]easonable inference from the facts" can form the basis of reasonable and probable grounds.[2]

An officer may search for anything "relevant or rationally connected to the incident under investigation, the parties and their culpability, that gives rise to the authorized warrant.[3]

The standard remains the same for offences within the Code.[4]

The officer may rely upon the observed reactions of the suspect (including body movement, posture, etc) to the presence of police.[5]


Judicial Notice
The justice of the peace may take "judicial notice of concrete local circumstances in assessing the adequacy of the officer’s statement."[6]

  1. See R v Durling, 2006 NSCA 124 (CanLII) at paras 20, 27-28
    R v Schiers, [2003] NSJ No. 453 (C.A.)(*no link) at para 15
    R v Jackson, at p. 131
    Re Lubell, at p. 190
    R v Sanchez, at p. 365, 370
    R v Church of Scientology (No. 6), at p. 514-5
  2. R v Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (Ont. C.A.), at para 22
  3. R v Cunsolo, 2008 CanLII 48640 (ON SC) at para 135
  4. R v Jacob (J.A.) at para 36
  5. R v Plummer, 2011 ONCA 350 (CanLII), [2011] O.J. No. 2034 (C.A.) at para 23 - referring to grounds of arrest
    R v Dene, 2010 ONCA 796 (CanLII), at para 4
  6. R v Lacelle, 2013 ONCA 390 (CanLII) at para 6

Compared to Suspicion

See also: Reasonable Suspicion

Where the police cannot obtain evidence without violating the Charter based only on suspicion, conjecture, hypothesis or a "fishing expedition".[1]

The belief that the accused "may" have used a cell phone is a form of speculation and is insufficient to rely upon for an ITO targeting the phone.[2]

  1. R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3 ("Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally.")
    R v Sanchez, 1994 CanLII 5271 (ON SC)
    R v Mahmood, 2008 CanLII 51774 (ONSC)
  2. Mahmood, ibid.

In Arrest

See also: Warrantless Arrests

A police office can have more than one believe and objective in doing a search incident to arrest as long as it is objectively justifiable.[1]

The phrase "reasonable belief" is the equivalent of reasonable grounds.[2]

Objective reasonableness is determined on the "factual matrix that existed at the time the arrest was made". Other information not known to the arresting officer is not relevant.[3]

Assessment of reasonableness requires that the judge places themselves "in the position of the officer" and assess "the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer".[4]

  1. R v Chubak, 2009 ABCA 8 (CanLII), at para 18
    R v Galye, 2015 BCSC 1950 (CanLII) at para. 38 (an "arresting officer's subjective belief that he or she has the requisite reasonable grounds is insufficient by itself for an arrest under s. 495(1)(a) of the Code to be lawful. Those grounds must also be justifiable from an objective point of view")
  2. R v Debot, [1989] 2 SCR 1140, 1989 CanLII 13 (SCC), at p. 213
  3. Galye, supra at para 38 ("Determining whether the arresting officer's grounds were objectively reasonable involves an assessment of the factual matrix that existed at the time the arrest was made. Whether other information, had it been available, might have strengthened or weakened those grounds is not a relevant consideration")
  4. Galye, supra at para 38 ("The assessment of whether objective grounds existed involves placing a reasonable person in the position of the officer and having that person assess the circumstances through the lens of someone who has the same experience, training, knowledge and skills as the officer. If that reasonable person would reach the same conclusion as the police officer, then the grounds for arrest will be considered to be objectively reasonable")

In Search Warrants

See also: Search Warrant Standard of Review

Special Rules

Confidential Informers

See also: Confidential Informers

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered.[1] Generally, the requirement will increase "the level of verification required" where "credibility cannot be assessed", "fewer details are provided", and "the risk of innocent coincidence is greater". [2]

On review of a search warrant the issue is whether the evidence might reasonably be believed, not whether there is some guarantee that the infromer was telling the truth about criminal activity.[3]

  1. R v Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (ONCA) at para 12
    See R v Debot, 1989 CanLII 13 (SCC), (1989), 52 CCC (3d) 193 at page 215 (S.C.C.)
  2. Debot, ibid. at page 218
  3. R v Caissey, 2007 ABCA 380 (CanLII), 299 D.L.R. (4th) 432, at para 23, aff’d 2008 SCC 65 (CanLII), [2008] 3 SCR 451

Drunk Driving

Drug Trafficking and Possession

Where an unknown person makes a "furtive visit" that is short enough to suggest drug trafficking is going on, along with informant details that drugs are being sold out of the house, is enough to form grounds that the resident is in possession of drugs.[1]

Police cannot arrest a resident who answers the door of a marijuana grow operation without further grounds connecting the accused to the illegal activity. Please could have detained but not arrested.[2]

Evidence of a person leaving a property, by itself, "would not be sufficient to connect that person with the crime… Believed was being committed on the property”.[3]it follows that police cannot simply arrest everyone coming out of a residence believes to be a grow operation.[4]

In certain contexts, seeing an accused holding a cigarette with the palm facing the front of the cigarette can be used as evidence for reasonable grounds to believe he is smoking marijuana.[5]

  1. R v Charlton, 1992 CanLII 367 (BC CA)
  2. R v Orr, 2010 BCCA 513 (CanLII)
  3. R v Doak, 2008 BCSC 1359 (CanLII)
  4. R v Settle, 2010 BCCA 426 (CanLII)
  5. R v Safarzadeh-Markhali, 2014 ONCA 627 (CanLII)