by Mike Novakowski

The court accepted that the officer honestly believed Brown possessed drugs and had attempted a hand-to-hand transaction. Further, it accepted that the officer's prior experience with drug dealing was properly taken into account in assessing grounds. However, the officer's subjective belief was still not objectively reasonable:

In our view however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter, demand that the belief be "reasonable," meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances.

The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers.

The (accused's) interaction with the person facing him on the city sidewalk does not, in our view, provide any objective basis upon which to believe that the two persons were engaged in a drug transaction. Nor does the fact that the two persons then walked away from each other make that interaction any more suspicious. (The officer's) evidence that the second person may have walked away from the (accused) because he or she caught sight of the police cruiser is speculation

(paras. 14-15).

The court noted other factors in concluding the totality of the circumstances did not provide an objectively reasonable basis for the arresting officer's belief:

  • The arresting officer's partner, who was in a better position as passenger to see Brown's conduct, did not notice anything, suspicious or not. Even if he had witnessed the movements described, the partner testified he would not have arrested Brown based on them. Instead, he would have spoken to Brown or briefly detained him for investigative purposes.

  • The arresting officer did not explain why the way Brown held his right hand was of some particular significance in the drug world. Without such an explanation, these actions "(did) not elevate the circumstances to reasonable and probable grounds to arrest."

  • The evidence supporting the officer's contention that this took place in a high crime area was thin. The officers were assigned to patrol this area as part of an anti-violence intervention strategy. Criminal activity, including drug activity, had apparently increased, however "the area targeted by the police activity was broad and the concerns were not particularized to drug activity or the specific location where these events occurred," the court noted. "There was no evidence that the corner where the arrest occurred was considered to be a high drug activity area."

Although the arresting officer honestly believed he had reasonable and probable grounds to arrest Brown, that belief wasn't objectively reasonable. The arrest was therefore unlawful and breached Brown's s.9 Charter right not to be arbitrarily detained.

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