Fish J. — This is an appeal by the Crown, as of right, from a decision of the Québec Court of Appeal affirming the respondent’s acquittal at trial on a charge of possession of cocaine for the purpose of trafficking (2009 QCCA 85, 248 C.C.C. (3d) 450).
The decisive issue on the appeal is whether the trial judge erred in law, as the Crown contends, by substituting a more onerous standard for the requirement of reasonable grounds that a peace officer must have in order to make an arrest without warrant pursuant to s. 495 of the Criminal Code , R.S.C. 1985, c. C‑46 .
We are not persuaded that she did. Rather, the trial judge concluded that the reasonable grounds required under s. 495 had not been made out in the particular circumstances of this case. And her conclusion in this regard rests essentially on an appreciation of the evidence before her: The trial judge’s reasons, delivered orally, explain in detail why she found the evidence of the arresting officer inconsistent, contradictory and wanting as to the circumstances surrounding the respondent’s arrest.
Accordingly, with respect for those who are of a different view, we would dismiss the appeal.
English version of the reasons of Deschamps and Cromwell JJ. delivered by
Cromwell J. (dissenting) — I have read the reasons of my colleague Justice Fish and, with respect, I am unable to agree with him.
The question of law in this appeal is whether the trial judge imposed a burden more onerous than the one provided for in s. 495(1) (c) of the Criminal Code , R.S.C. 1985, c. C‑46 . I agree with Chamberland J.A., the dissenting judge in the Quebec Court of Appeal, that the answer is yes, for the following reasons:
[translation] The trial judge stated that she was unable to “conclude that the officer had objective grounds for the arrest”. Why? Because “he did not investigate when the identification of the accused was contested, even though he was told that the person being sought after by the warrant was the brother”. Similarly, she “considers that the officer was obliged, on the face of the protest and information given by the accused to proceed to a verification” and adds that “the attitude of arresting a person without further verification . . . appears capricious”.
In my view, and with the greatest respect for the trial judge, this reasoning is erroneous in that it imposes on the officer a different and heavier burden than what is required in s. 495(1)(c) Cr. C. It would require the officer to be certain, or at least persuaded, that the person about to be arrested is the one against whom a warrant of arrest is in force, rather than simply to have reasonable grounds to believe so.
(2009 QCCA 85, 248 C.C.C. (3d) 450, at paras. 23‑24)
Despite the able submission of Mr. Belleau, the amicus curiae in this case, I would allow the appeal and order a new trial.
Cases cited
- 2009 QCCA 85 2009 QCCA 85 paras 23 ¶ 1, ¶ 6