Motifs raisonnables et probables

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois August 2022. (Rev. # 2261)

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• < Fouilles, perquisitions et saisies
• < mandats de perquisitions

• < Fouilles, perquisitions et saisies
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General Principles

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 calibrated to where "the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone."

Objectively Reasonable

The reasonableness requires that the grounds be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to find that the grounds exist.

Between Suspicion and Balance of Probabilities

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

Contrast with BARD and Prima Facie Standard

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

Reasonable grounds is a standard lower than a prima facie case and is less than a balance of probabilities.

Contrast to Reasonable Suspicion

It is higher than "reasonable suspicion", which is where "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation"

Identical Standards

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

Constitutional Baseline

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" These requirements set out the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure."

When Grounds May be Challenged

In most cases, the grounds underlying police authority can only be challenged by way of a Charter application. Absent the application, the sufficiency of grounds are presumed.

Re-Stating the Standard

Appellate judges should avoid re-articulating the standard for reasonable grounds using new language as it risks obscuring not clarifying the law.

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.

Credibility-based Standard

Reasonable and probable grounds is the “the point where credibly-based probability replaces suspicion." It is the reasonable belief that "an event not unlikely to occur for reasons that rise above mere suspicion." "Reasonableness" concerns the legitimate expectations in the existence of certain facts. It can then be said that the belief in certain facts can be "reasonable" without being "probable."

Credibility-based probability involves “a practical, non-technical, and common-sense assessment of the totality of the circumstances”.

The "key elements" of a credibility based probability:

1. "The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at a specked place"
2. "The Information to obtain as a whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the 'specificity and legal precision expected of pleadings at the trial stage.'"
3. "The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief"
4. "Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances." This will include:
   1. Acceptance of hearsay from an informant, but an informer tip by itself is not enough;
   2. Assessment of a tip is in the "totality of circumstances" considering factors including a) degree of detail, b) informer's source of knowledge, c) the indicia of informer's reliability in the past and corroboration from other sources.
   3. the results of the search cannot be used as evidence of reliability

Totality of Circumstances

The "totality of the circumstances" must be considered in the assessment of grounds. The purpose of emphasizing the "totality of the circumstances" is to "avoid concentrating on individual pieces of evidence." Accordingly, the considerations of the evidence cannot be "piecemeal."

Totality requires that the officer consider "all incriminating and exonerating information", but may disregard unreliable evidence.

The officer must consider context including timing involved, events leading formation of grounds, and the dynamics at play. Reasonable grounds need not be based on first hand knowledge.

The factors of consideration must be "flexible". Courts should not put one factor "to the status of an essential prerequisite" to establish grounds.

A Context-Specific Standard

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

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."

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

Fair Context

The officer must take into account both inculpatory as well as exculpatory evidence. The only evidence that is unreliable can be ignored. The officer must make inquiry as the circumstances reasonably permit.

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”.

Reliability of Information

The officer weighing evidence to be relied upon when justifying a search or arrest must be satisfied that:

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 Assertion

The swearing officer's belief "does not have to be based on personal knowledge, but the information to obtain must, in the totality of circumstances, disclose a substantial basis for the existence of the affiant's belief."

Subjective Factors

An officer must have a subjective belief that there are sufficient grounds.

Experience, Training and Knowledge of Officer

The officer may use his training and experience in determining objective reasonableness. For example, what may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations This objective standard while "standing in the shoes of the police officer" has been interpreted as taking into account the officer's experience and training.

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

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."

Operating on Agency

The searching or arresting officer may rely upon the assumption that the officer directing them has the requisite grounds.

Mistaken Belief vs Reality

In assessing the reasonableness, the judge must "measure the facts as the police officer honestly understood them to be."

The subjective grounds must be based on a bona fides belief to a relevant fact. It is not necessary that the fact actually be true.

Objective Factors

The subjective belief must be reasonable.

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 in fact true. It is only whether it was reasonable for the officer to believe that the officer's believed facts, circumstances and inferences were reasonable.

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

Inferences

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

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

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.

The standard remains the same for offences within the Code.

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

Reliance odour alone can be problematic as the sense of smell can be "highly subjective."

Judicial Notice

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

Compared to Suspicion

Reasonable suspicion requires a "reasonable possibility" of certainty while reasonable and probable grounds requires a "reasonable probability" of certainty.

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

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.

In Arrest

• Warrantless Arrests#Reasonable and Probable Grounds

In Search Warrants

| An affiant must have formed reasonable grounds before applying for a search warrant such as that found under s. 487.

The "reasonable grounds" standard has two components the "subjective" and "objective". In the context of a warrant the affiant swearing the ITO "must have a subjective belief that ... the search requested will yield evidence respecting the commission of an offence" and that an "objective assessment of the grounds justifies issuance of the warrant."

While the objective component is the same as that addressed in grounds of arrest, the application in the contxt of a warrant is more "exacting."

Special Rules

Child Pornography

It is not necessary that an eye-witness claiming to have seen child pornography describe the contents of the image in order for the officer to form reasonable grounds.

Confidential Informers

Where the basis of the warrant relies on a confidential informer, the requirement from R v Debot must be considered. 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".

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.

Drunk Driving

• see Reasonable Grounds Under Section 254(3)

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.

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.

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”. It follows that police cannot simply arrest everyone coming out of a residence believes to be a grow operation.

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.

See Also

• Search Warrant Evidence