IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Mr. Ahmed has been charged with four criminal offences related to alleged drug trafficking that occurred on September 14^th, 2020.

[2]         This is a ruling on a Voir Dire in which Mr. Ahmed asserts that his rights under Section 8 and 9 of the Charter of Rights and Freedoms were breached when he was arrested that day.

[3]         On September 14^th, 2020, Mr. Ahmed was driving his car on Boundary Road near Canada Way. For reasons that will be detailed later in this ruling, Vancouver Police Department Constables Kemp and Diguangco commenced following Mr. Ahmed as he drove his Volkswagen Jetta into the city of Burnaby. Mr. Ahmed pulled into the 7-11 store at Canada Way and Smith Avenue. A young woman approached his vehicle and entered the passenger side. A short time later she exited Mr. Ahmed’s vehicle. At that point, Cst. Diguangco immediately arrested the young woman. At the same time, Cst. Kemp arrested Mr. Ahmed for drug trafficking. Certain drugs were discovered during searches incident to that arrest.

[4]         Mr. Ahmed argues that this arrest and the subsequent searches were not effected in compliance with his rights under the Charter.

[5]         The detailed reasons as to why Mr. Ahmed was arrested are the crux of this hearing.

[6]         Given that a warrantless search is prima facie unreasonable, the onus is on the Crown to prove the lawfulness of the search. If the arrest was unlawful, the detention of Mr. Ahmed violates s. 9 of the Charter. In that case, the search incidental to the unlawful arrest would violate s. 8 of the Charter. The first question then is whether the arrest was lawful.

[7]         Section 495 of the Criminal Code makes it clear that, in this case, Cst. Kemp was required to possess reasonable grounds to believe that Mr. Ahmed had committed an indictable offence before he could arrest him.  

[8]         The relevant portions of Section 495 read:

[9]         Cst. Kemp is a 14 year veteran of the Vancouver Police Department. He has been involved in hundreds of drug investigations over the years.

[10]      On September 14, 2020, he was on duty, in plainclothes, driving an undercover police vehicle. He had Cst. Diguangco as his partner that day. He said they were looking for any sort of unlawful activity.

[11]      At 1744 hours, he was driving northbound on Boundary Road approaching Canada Way. He saw a VW Jetta. He described it as “fairly new” and “very clean”. He testified that in his experience rental vehicles were often used for drug trafficking and this vehicle may have been a rental vehicle. He said that he then asked his partner to “run” (or query) the licence plate.

[12]      He testified that his partner made an inquiry with respect to the vehicle licence plate and “then we drove beside the vehicle as well”.

[13]      He stated that it was hard to see the driver due to the fact that he was leaned so far back in the seat. He found that unusual. He said that he has arrested dozens, perhaps hundreds, of dial-a-dope drug dealers and that they will often sit in such a reclined position. This position would later be described as the “gangsta lean” by Cst. Diguangco. Cst. Kemp conceded that this way of sitting in a car is not exclusive to people involved in criminal activity.

[14]      Around that same time the plate inquiry revealed that the vehicle was previously involved in what was suspected to be the sale of illegal drugs. That was the extent of the information. There was no information as to who the registered owner was. The driver of the vehicle at that previous time was not actually dealt with by the police in any way. Cst. Kemp conceded that up to the point when the plate inquiry results came back there was nothing suspicious with respect to the driver, the car or the driving pattern. He said that once the computer check (or PRIME query) came back that his suspicions were raised. He recalls that Cst. Diguangco told him that the file on this car was just a police intelligence file and that therefore he believed that no one had been arrested in relation to this vehicle.

[15]      PRIME, Cst. Kemp confirmed, is a database that contains all kinds of police related information and it permits officers to input their opinions and suspicions about various places, vehicles and individuals.

[16]      The Jetta turned right off of Boundary onto Laurel Street. The speed was normal. About midway down that block the vehicle slowed down quite a bit. Cst. Kemp made the assumption that the driver was looking for someone or something although he could not see the driver or anything he was doing inside the vehicle at that time. He described the driving as “slow rolling through the block”.

[17]      The Jetta continued past the south entrance to a strip mall that contained a 7-11. The Jetta turned left on Smith Avenue and then left on Canada Way. The Jetta then turned left into the north entrance of the strip mall and it parked in a space near the 7‑11.

[18]      Cst. Kemp parked his vehicle about 50 feet to the west of the Jetta. He then saw a female approaching from the Laurel Street side of the parking lot. He described her as “very unkempt”, with dirty hair and dirty clothing. He said that in his experience she had the general appearance of a drug user in that she had a “pasty, sort of sallow sort of appearance”. He elaborated that she didn’t look dissimilar from the drug users and the homeless people around the courthouse here at 222 Main Street in Vancouver. He said that he had seen her earlier that day in the area but had never had any dealings with her. I should note that Cst. Diguangco testified that the woman had her hair covered by the hoody she was wearing so it is difficult to rely upon the observation in relation to her hair.

[19]      The woman approached the Jetta and got into the passenger seat. Cst. Kemp formed the belief that the driver had been looking for this person and that the meeting was a prearranged one. In cross-examination, Cst. Kemp conceded that when the woman entered the vehicle he thought it a “distinct possibility” that a drug transaction was taking place. It was not, he said, until she got out so quickly that his belief crystallized into a belief that an offence had occurred.

[20]      Cst. Kemp conceded that he could not see anything that was taking place inside the Jetta. In addition, he did not provide any testimony as to whether the woman had anything in her hands when she got in the vehicle or when she got out.

[21]      Before the women had left the vehicle, Cst. Diguangco had exited his vehicle but was still nearby. Very shortly after the female exited the Jetta, Cst. Diguangco advised Cst. Kempt that he was going to “go for her”. Cst. Kemp knew, from his experience with his partner, that this meant that Cst. Diguangco was going to arrest the person who had exited the Jetta.

[22]      When asked about his own thought processes at that time, Cst. Kemp said that at that point he felt he had grounds to arrest the driver. He started to think about how to effect the arrest.

[23]      A large white SUV backed out of a parking spot in front of Cst. Kemp preventing him from just moving ahead in his vehicle to box in the Jetta. The Jetta started to slowly leave the parking lot. Cst. Kemp activated his emergency lights and drove up beside it.

[24]      Cst. Kemp testified that often drug dealers will flee at a high rate of speed and try to hide whatever evidence they have. Due to that concern, Cst Kemp testified that he wanted to stop the Jetta quickly so he pulled in front of it so quickly that there was a low speed impact between the two vehicles.

[25]      Cst. Kemp then exited his vehicle, asked Mr. Ahmed to get out of the Jetta, placed him in handcuffs and told him he was being arrested for trafficking in a controlled substance.

[26]      At that point Cst. Kemp noticed that Mr. Ahmed’s pants fly was down. Cst. Kemp said that he believed that drugs could be secreted in that area due to his experience. He told Mr. Ahmed that he was going to be transported to the detachment for a proper search for narcotics. Mr. Ahmed then said he would be willing to take the drugs out. They moved to a more private area and various drugs were removed by Mr. Ahmed and given to Cst. Kemp.

[27]      Cst. Kemp explained that there did not seem to be any reasonable explanation why these two people would be meeting up in such a fashion other than for a drug transaction.

[28]      He said there was a disparity between these two people. One was driving a relatively new Jetta and one looked like a drug user. I note here, however, that in cross-examination Cst. Kemp testified that the woman would have been arrested no matter what her appearance was.

[29]      Cst. Kemp testified that he has yet to make a mistake where he believed that a drug transaction has occurred and it turned out to be something innocent instead. Of course this bald statement is impossible to challenge.

[30]      He said that he has never experienced an instance in his own life where he met up with someone for a short meet like this one.

[31]      In response to a suggestion that it could have been a transaction like a Craigslist sale he said, “it didn’t seem to be the sale of something”. He said, “she didn’t come out with anything that would have been sold and I didn’t see her enter with anything that she was selling”.

[32]      In addition to the narcotics that were found, there was a knife found in the driver side door pocket.

[33]      In cross-examination, Cst. Kemp agreed that this 7-11 in Burnaby was not of any specific interest to them as it was technically outside of their jurisdiction as Vancouver police officers.

[34]      At first, Cst. Kemp said that if they think a vehicle is a rental vehicle then they will run the plate. Later, he conceded that he will run every plate of every car that is in front of them if he has the chance. Once the inquiry does come back the officers can tell if the vehicle is a rental.

[35]      The Jetta was not a rental vehicle.

[36]      With respect to the PRIME entry, Cst. Kemp said it was significant for him that the entry related to a “similar” incident of suspected drug trafficking. He conceded, however, that he actually did not know it was “similar” until after the arrests had been made.

[37]      Cst. Diguangco was Cst. Kemp’s partner and was seated in the passenger seat of the police vehicle.

[38]      He also was an experienced police officer and had numerous dealings with drug related files.

[39]      Prior to “running” the licence plate of Mr. Ahmed’s vehicle, he testified that they were driving beside it. This is a different order of events than what Cst. Kemp testified to. Cst. Diguangco noted that the driver was a black male wearing glasses. He said the man was suspicious in that he was leaning back in a driving position that Cst. Diguangco said is common to a lot of drug traffickers. He called it the “gangsta lean”. He did concede that it was also consistent with someone who is just young and naïve and trying to be cool.

[40]      They then dropped back behind the Jetta to note the plate number and to make a query on PRIME.

[41]      He was the officer who had performed the query on PRIME and received back information that in July of the same year two Burnaby police officers had observed the same vehicle being driven by a black male wearing glasses. At that time, the vehicle stopped near a suspected female drug user. There was a suspected drug transaction between them. However, the Burnaby police had attempted to continue their surveillance, lost continuity of the vehicle and were unable to pursue any investigation.

[42]      The registered owner came back as Yonis Ahmed (the accused).

[43]      Once he had read that PRIME entry, he told Cst. Kemp that the vehicle would be a good one to surveil. He immediately suspected that the driver was actively involved in drug trafficking. He conceded that, in general, however, drug traffickers tend to work in partnerships or pairs and that the driver appeared to be the sole occupant.

[44]      Once they had stopped in the parking lot where the Jetta had also stopped, Cst. Diguangco got out of his vehicle as he was confident, he testified, that a drug transaction was going to occur.

[45]      He then observed a female that he had seen earlier in their shift.

[46]      He testified that she had the appearance of a “street person, a drug user”. She was wearing multiple layers of oversized dirty clothing and had an unkempt appearance. She also had a bad complexion. He conceded that her hair was up under the hood of her hoodie and that therefore he could not see her hair as she moved toward the Jetta.

[47]      He saw this woman jog towards the Jetta and enter it. Cst. Diguangco conceded that when he saw this woman jogging towards the Jetta he could not see her facial appearance.

[48]      She did not appear to have anything in her hands at the time she entered the Jetta. After about 20 seconds, she exited and had a clenched fist as she began to walk away from the vehicle.

[49]      In his opinion, this was not an “innocent” meet. He testified that a drug user entering a car worth about $20,000.00 being driven by a fairly clean-cut person did not have an explanation as to why they were meeting other than for a drug deal. He thought that the nature of the vehicle and his impression of the woman’s appearance was a major factor for him as far as grounds went. He concluded that both the woman and the occupant of the Jetta were arrestable.

[50]      When asked what, if any, of his thoughts he had communicated with his partner he said that they have worked together for some time. He testified that when he told his partner that he was moving in to arrest the woman he knew that would prompt Cst. Kemp to go and arrest the driver. He conceded that nothing else was communicated at that time between himself and his partner.

[51]      He also testified that he has never been wrong when he has arrested someone in these kinds of circumstances.

[52]      He testified that they get requests from other officers as to how they come up with so many files (he said some 50-60 files a year being recommended for charges).

[53]      Once he told his partner that he was “going for the female”, he arrested the woman for trafficking. He explained the arrest for trafficking was due to the fact that on a prior occasion there was a drug dealer who had entered the buyer’s car. This meant, he said, that there could be a possibility that the woman was the seller and he conceded that, for that reason, he arrests for trafficking first and sorts out what the situation is afterwards.

[54]      When defence counsel asked why Cst. Diguangco would have noticed the woman at all earlier in their shift, he testified that he looks at everyone. He said that everyone is suspicious until proven otherwise. That is why they run almost every vehicle plate they come across in the course of a shift.

[55]      He described himself as a “hunter” and that he treats everyone as suspicious. Everyone, he said, is treated as a potential criminal.

[56]      This is the factual matrix upon which Cst. Kemp made the decision to arrest Mr. Ahmed. The defence argues that the Crown has not established that the warrantless arrest was reasonable and that, therefore, Mr. Ahmed has established breaches of his rights under Section 9 (the right to free from arbitrary detention) and Section 8 (the right to be free from unreasonable search or seizure) of the Charter.

[57]      It is clear that the standard for a lawful arrest is found in Section 495(1) of the Code. That section provides that a peace officer may arrest, without warrant, a person "who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence". Here, Cst. Kemp had to have held the belief that an indictable offence was committed and, according to subsequent case law, he had to have held that belief on objectively reasonable grounds.

[58]      The precise application of that standard to the facts in any given case has been illuminated in various Charter jurisprudence. A succinct summary of the law on warrantless arrests is found in R. v. Oyston, [2019] BCJ No. 295 (BCSC) where Justice Brown states:

[59]      Throughout any analysis the focus is on the “totality of the circumstances” or on the entirety of the constellation of known and observed facts available to the arresting officer. It is not a piecemeal review or an overly critical parsing of every factor considered.

[60]      Lately, however, the Crown has also been submitting, as they did in this case, that while reasonable and probable grounds to arrest must be more than a suspicion it can be on a belief that is less than a balance of probabilities.

[61]      How an officer can “believe”, on reasonable grounds, that an offence has been committed without also believing that that the commission of that offence was more probable than not is a difficult concept to understand. How did we get here? What is the standard for a lawful warrantless arrest, one that is compliant with the Charter of Rights and with Supreme Court of Canada jurisprudence interpreting that question?

[62]      Section 495 contains clear language. How that language is to be interpreted falls to the courts who, ideally, provide clarity as to what standard the police must meet to legitimize their actions. These standards are crucial for both the citizenry, who need to know the parameters of their inherent Charter rights, and for the police, who need to know whether their actions are constitutionally compliant.

[63]      Public confidence in the police is promoted when the police are perceived to be acting lawfully and with legitimate authority. This confidence is especially important in communities like Vancouver (and most other jurisdictions in Canada) where the demographic profile of the police falls far short of being representative of the population that they are policing. (See the Independent Street Checks Review in Ontario authored by the Honourable Justice Michael Tulloch of the Ontario Court of Appeal.)

[64]      Jurisprudence with respect to this standard of “reasonable grounds” is plentiful. I accept that the case law clearly supports the proposition that the requisite belief that must be held is more than a suspicion but less than a prima facie case. That analytical expression from the Supreme Court of Canada, however, has been muddied by more recent jurisprudence that, the Crown submits, supports their assertion that a warrantless arrest (under Section 495) can be constitutionally compliant on a belief that is something less than a balance of probabilities (i.e. less than probable).

[65]      I raise this issue because I question whether the cases relied upon by the Crown to support, what would appear to be, a lowering of the standard in relation to warrantless arrests actually do support that proposition. There is clearly some confusion in the law at this time. I engage in this analysis in an effort to gain some clarity. Again, how did we get to this point where courts are being asked to accept a certain state of the law with respect to the standard of arrest that simply is not supported by long-standing Supreme Court of Canada jurisprudence?

[66]      R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 is still the leading case when interpreting the meaning of Section 495. The Court says at paragraphs 14-17:

[67]      Storrey (above) states that in order for the police to have grounds for a lawful arrest they need not believe that a prima facie case for conviction exists. This makes perfect sense. A conviction, in a criminal setting, requires, of course, proof beyond a reasonable doubt.

[68]      The Court in Storrey (above) does not say anywhere in that case that a lawful arrest may also be made on grounds that do not meet the “balance of probabilities” standard found in civil cases. In fact, they strongly stress that it is more important in cases of a warrantless arrest (as opposed to cases that involve an arrest warrant) that the requisite standard has been met (see also R. v. Feeney, 1997 CanLII 342 (SCC), [1997] SCJ 49 at par. 35).

[69]      However, some courts seem to have justified a weakening of the standard for a lawful arrest by relying on some language from a case called Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40 at para. 114.

[70]      Mugesera (above) was an Administrative Law case. It involved an appeal of a decision by the Immigration and Refugee Board and dealt with the basis for removing a permanent resident due to an alleged crime committed outside of Canada. Much of the case dealt with the facts that were found by the tribunal. Then there was a discussion of Section 19(1)(j) of the Immigration Act which states:

[71]      The court was asked to consider the meaning (in the context of the Immigration Act) of the phrase, “reasonable grounds to believe”.

[72]      Paragraph 114 of Mugesera (above) states:

[73]      Various B.C. Court of Appeal cases like R. v. Jir, 2010 BCCA 497 and the more recent cases of R. v. Henareh, 2017 BCCA 7, R. v. Glendinning, 2019 BCCA 365, R. v. Harms, [2020] BCJ No. 1332 at par. 43, and R. v. Orr, 2021 BCCA 42 (CanLII), [2021] BCJ No. 163 at par. 77, to name a few, repeat this statement as being applicable to the test for a lawful arrest in a Criminal Code context. At par. 43 of Harms Justice Dickson writes:

[74]      Justice Newbury in the Glendinning (above) case went even further. The court there appeared surprised that the question of what the meaning of “reasonable grounds to believe” an offence has been committed was still being raised in criminal litigation. The Court wrote at par. 3:

[75]      In Loewen, at the Court of Appeal level, Mr. Justice Slatter stated the following:

[76]      He goes on to conclude at par. 28:

[77]      I should note first that the Mann case referred to by Justice Slatter is an investigative detention case and, therefore, deals with the concept of reasonable suspicion, not reasonable grounds to believe that an offence has been committed.

[78]      In affirming the result in Loewen (above), the Supreme Court of Canada, on the appeal of R. v. Loewen 2011 SCC 21 (CanLII), [2011] SCJ 100, overturned Justice Slatter’s analysis with respect to the difference between “reasonable grounds” and “reasonable and probable grounds”. In discussing whether, as a matter of law, the arresting officer possessed the requisite grounds for arrest, Chief Justice McLachin writes at par. 5:

[79]      Does this statement from the SCC condone an interpretation of the arrest standard that would hold that the grounds for arresting someone can be made on some belief in facts that are less than “probable” to exist? The answer must be, clearly, that it does not.

[80]      We already know from jurisprudence too numerous to mention that as far as the Charter standard to be applied to the grounds for an arrest, “reasonable grounds” is no different than “reasonable and probable grounds”. Therefore, if the SCC disagreed with Justice Slatter’s interpretation of the law then there is a strong basis for concluding that they must also disagree with any interpretation of cases that would suggest that a belief in something less than probable can meet the Charter standard for a lawful arrest.

[81]      It is quite possible that the confusion in the case-law was jump-started by the problematic use of the phrase “prima facie case” in Storrey (above). It was, of course, importantly modified with the words “for conviction” that followed the phrase.

[82]      Throughout common-law jurisprudence the definition of prima facie is variable at best and completely indiscernible at worst. In the context of determining what test to apply on an insufficient evidence application in a civil litigation case the B.C. Court of Appeal said this:

[83]      Recently, in Grant Thornton LLP v. New Brunswick, 2021 SCC 31 (CanLII), [2021] SCJ No. 31, the Supreme Court of Canada decided that, in a civil context, with respect to the common-law rule of discoverability, the “permissible fact inference” definition is preferred.

[84]      In a criminal context, the phrase clearly imports the “compelled fact determination” definition. For instance, the law is clear that a warrantless search is “prima facie unreasonable”. This means that the unreasonableness is a compelled presumption unless the Crown leads evidence to rebut that presumption.  

[85]      Black's Law Dictionary, 6th ed. defines a prima facie case as one that will prevail until contradicted and overcome by other evidence.

[86]      Another basis for any confusion on this issue may be rooted in whether the courts have been mixing up the standard for a lawful arrest with what standard of proof the Crown is required to meet in order to demonstrate that the police officer’s subjective grounds were also objectively reasonable.

[87]      Generally, the onus is on the accused to establish a Charter breach on a balance of probabilities, with a few exceptions. One of those exceptions is in cases, like this one, where a warrantless search is involved.  

[88]      In the seminal case of R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 Justice Lamer wrote this with respect to the burden of proof in the face of a warrantless search:

[89]      In this particular case, in order to meet this burden and prove reasonableness, the Crown must show, on a balance of probabilities, that the arrest was lawful and that, therefore, the warrantless search incident to arrest was reasonable.

[90]      How does this square with some of the comments made in recent cases? Justice Newbury states at par. 31 of Glendinning (above), “Nevertheless, the law is clear: the Crown need not demonstrate that the belief of the police (that an indictable offence had occurred) was correct on a balance of probabilities”.

[91]      While that statement seems to refer specifically to the burden of proof at trial, the court goes on in the same paragraph to say:

[92]      The confusion is apparent.

[93]      Parenthetically, I should note here that the Supreme Court of Canada in Storrey (above) has already made it clear that in the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have reasonable and probable grounds upon which they base the arrest.

[94]      The point is that the issue of whether the facts relied upon by an arresting officer, as found by the trial judge, amount to reasonable and probable grounds is a question of law. Of course, the "facts" relied upon by the officer need not be true. Reasonable grounds can be based on the officer’s reasonable belief that certain facts exist even if it turns out that the belief is mistaken.

[95]      However, the Crown must still prove, on a balance of probabilities, that the officer’s belief that an indictable offence had been committed was reasonable in all the circumstances known to him at the time.

[96]      If courts were going to import the reasoning contained in non-criminal cases to employ in the criminal context then why not import the rationale in more quasi-criminal matters like Baron v Canada, 1993 CanLII 154 (SCC), [1993] SCJ No. 6. There, the Court made clear as to how the removal of the words, “and probable”, from the reasonable and probable standard for an arrest found in Section 495 of the Criminal Code is to be dealt with: (Sopinka, J)

[97]      The Court of Appeal in the Glendinning case (above) does not refer to Baron (above) and the clear requirement set out there that “reasonableness” comprehends a requirement of probability.

[98]      In fact, the Court in Glendinning says this about the word “probable”:

[99]      Crown counsel, in the case at bar, raised the analogy of a probability of rain and argued that the definition of “probable”, therefore, includes possible.

[100]   However, an arrest marks the moment when the needs of law enforcement overtake the liberty interests of the individual. 

[101]   Does that moment really come when an officer believes in a 30% probability (or lower for that matter) that an offence has been committed? Would that constitute a constitutionally compliant interference with a citizen’s liberties? Surely, it would be a grave error to extend the definition of “probable” in this fashion.

[102]   Lest one think that this lowered standard is only being argued in cases involving warrantless arrest, other B.C. cases have, when dealing with the sufficiency of the grounds to obtain a search warrant, repeated the lower standard as properly delineating the meaning of “reasonable and probable grounds”. One example is R. v. Mollon, [2017] B.C.J. No. 2747 where Justice Crossin, who ultimately finds that the Crown had only established that a suspicion existed, says at paragraphs 16-18:

[103]   Again, in relation to arrests under the Criminal Code or the issuance of search warrants in criminal matters, the Supreme Court of Canada has never endorsed this idea that the meaning of a “reasonable or credibly-based probability” imports something less than the civil standard of proof.

[104]   The quote that some courts rely upon above from Mugesera (above) actually comes from another case called Sivakumar v. Canada, 1993 CanLII 3012 (FCA), [1993] F.C.J. No. 1145 (Fed C.A.). The court in Sivakumar assessed the proof necessary to establish that someone was involved in crimes against humanity for the purposes of determining eligibility for entry into Canada. The Court there noted that there was a conscious and deliberate employment of a different (and lower) standard when it came to ensuring that war criminals were denied safe havens in foreign countries. Justice Linden said this:

[105]   Of course it makes sense that the SCC (in Mugesera) might adopt this formulation as the correct one to apply in the context of Section 19 of the Immigration Act. It must also be assumed that the SCC took into account the justification contained in that same paragraph as to WHY the usual standard of proof should be lowered in that context.

[106]   Professor Steve Coughlin (Schulich School of Law at Dalhousie) makes the same observation in a paper entitled, “Keeping ‘Reasonable Grounds’ Meaningful”. The Court in Glendinning (above) made reference to this. In this 2011 article, the professor was lamenting the then recent trend by some courts to weaken the reasonable grounds standard. He said this:

[107]   Professor Coughlin’s plea, a decade ago, that this error be recognized and avoided has, apparently, been forgotten.

[108]   Again, in a criminal context there can be no doubt that the existence of reasonable grounds to arrest is grounded in the factual findings of the trial judge. The issue of whether those facts amount, in law, to reasonable grounds is a question of law.

[109]   In the R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] 2 S.C.R. 527 the Court says at par. 20;

[110]   Looking at case law dealing with the reasonable suspicion standard can be quite illuminating in considering the law relating to the higher standard required for a lawful arrest. The reasonable suspicion standard was recently clarified by the Supreme Court of Canada in R. v. Ahmad, 2020 SCC 11 (CanLII), [2020] SCJ No. 11. It is clear from reading the passages there about the definition of a reasonable suspicion that the higher standard of “reasonable grounds to believe” must connote the “probability” of criminal activity. The court notes at par. 46:

[111]   A reasonable suspicion to detain someone is a credibly based possibility that the individual is involved in a crime. This is a clear distinction from reasonable and probable grounds to arrest, which imports a credibly based probability of the suspect's involvement in a crime. Courts have been repeatedly warned to avoid mixing up these different standards: R. v. Ahmad, supra, at paras. 45-49; R. v. MacKenzie, 2013 SCC 50 at paras. 84-86; R. v. Chehil, at paras 22-36.

[112]   The Ahmad case is an important one. The court there clearly supports the maintenance of a relatively high standard when it comes to the concept of “reasonable suspicion”. To state the obvious, that standard is a lower one than that of the arrest standard we are dealing with in this case. Despite that, there is very strong language from the court about how crucial it is for the police to possess the requisite grounds before interfering with a citizen’s liberty. This protection is necessary. The reasons for maintaining a high standard are incredibly important (see R. v. Le 2019 SCC 34 (CanLII), [2019] SCJ No. 34 – a case involving an unlawful detention).

[113]   A “belief continuum” that an offence has been committed could be set out like this:

[114]   In summary, Section 495, and the jurisprudence interpreting it, establishes an important and necessary external standard by which warrantless arrests must be scrutinized.

[115]   For the reasons stated above, I find that judicial interpretation in relation to warrantless arrests establishes that,

[116]   Without this standard being met and without such an important protection, as the Court in Storrey warned, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. History has proven that when protections and standards, like this one, are unjustifiably weakened or watered down, it will be society’s vulnerable, disenfranchised, disadvantaged and racialized communities that will disproportionately suffer. That cannot be allowed to happen in a free and democratic society that foundationally believes in the equal application of the law across diverse communities.

[117]   Pursuant to his observations, the information he possessed and his experience as a police officer, Cst. Kemp came to the conclusion that he had reasonable grounds to believe that Mr. Ahmed had just committed the offence of drug trafficking. That was his subjective belief, he testified. Of course, his subjective belief must also be objectively reasonable. It is clear from the case law on these points that it is the entirety of the circumstances that are assessed. That is the issue on this Voir Dire.

[118]   Prior to the information received on the PRIME inquiry there was no basis for the police to be even interested in this vehicle. Driving while positioned in a “gangsta lean”, as Cst. Diguangco characterized it, amounts to nothing at all.

[119]   Cst. Diguangco performed the PRIME inquiry and said that he relayed the results to his partner, Cst. Kemp. However, Cst. Kemp did not recall the precise details of this conversation. The PRIME entry simply indicated that two unknown Burnaby police officers entered information into PRIME an opinion that the same vehicle that they were following, being driven by a Black male with glasses on, engaged in a suspected drug transaction with a female. There was no further investigation performed. No one was spoken to. No one was identified. No arrests or detentions took place at that time.

[120]   This information was certainly nothing like the tip considered in R. v. Li, [2020] SCJ No. 12 where the Supreme Court of Canada found that the much more detailed information respecting a vehicle and its driver did meet the lower standard of “a reasonable suspicion” allowing the police to make phone calls to Mr. Li, a suspected drug trafficker, in an attempt to prompt a sale.

[121]   After the PRIME entry was seen, the officers were making observations that they testified were consistent with their suspicion that the vehicle was actively engaged in drug trafficking. Cst. Diguangco characterized himself as a “hunter” and that everyone is suspected to be a potential criminal unless proven otherwise. This is the lens through which observations were being made.

[122]   The vehicle drove around the block to get into the 7-11. The officers described the vehicle as “slow rolling through the block”. They testified that this “squaring the block” and slow driving was a common way that drug traffickers check for the presence of police.

[123]   No evidence was given that the driver was looking around or appeared to be checking for police at any point in their observations, including after the vehicle had stopped at the 7-11.

[124]   Once the vehicle parked, Cst. Kemp observed a woman enter into the passenger side of the car for a brief time and then leave. The officers did not see any suspicious activity or transactions taking place inside the vehicle.

[125]   Once the female exited, Cst. Diguangco immediately told Cst. Kemp that he was “going for the female”. Apart from that there was no other real communication going on between Cst. Diguangco and Cst. Kemp after they stopped their vehicle in the parking lot. It is, of course, the observations and knowledge of Cst. Kemp that are most relevant to the inquiry as to whether reasonable grounds existed for the arrest of Mr. Ahmed as he is the officer who made the decision to arrest him.

[126]   In this case, it seemed clear that Cst. Diguangco made the first decision to arrest. He said to Cst. Kemp that he was “going for the female”. Cst. Kemp took this as meaning he was responsible for arresting the driver. While Cst. Kemp attempted to explain why he had formed the belief that an offence had just occurred he had very few objective grounds upon which to do so.

[127]   Both Cst. Kemp and his partner made, in my opinion, unwarranted and dangerous assumptions about the woman who entered the Jetta based on her appearance. Cst. Kemp concluded that because she appeared “unkempt”, had dirty hair and clothing, and had, what he called, a “pasty, sort of sallow appearance” that she was a drug user. He elaborated that she did not look dissimilar from the drug users and the homeless people around the courthouse here at 222 Main Street in Vancouver. He seemed to use the words “homeless” and “drug user” interchangeably in describing why he believed that she was involved in a drug transaction when she entered the Jetta.

[128]   This is a dangerous and potentially subversive rationale. It relies upon discriminatory stereotypes about poverty and crime. Supporting ‘grounds to believe’ based on rejected stereotypes (whether it be associated to a specific neighbourhood or a specific appearance) has been soundly rejected and criticized, not only by the population affected by these unjustified beliefs, but by courts as well. (See R. v. Smeltzer [2021] ONCA 472 at par. 25; R. v. Sitladeen [2021] ONCA 303; R. v. Le (above).

[129]   Here, Cst. Kemp concludes that the woman is a drug user simply from her general appearance. He did not know this person or have any other information with respect to her. Cst. Kemp’s experience with the vast breadth of residents of the downtown eastside of Vancouver does not assist in objectively justifying the assumption that was made in this regard.

[130]   In any event, even though Cst. Kemp put great emphasis in portions of his testimony about the contrast in appearances between the driver and the woman, he eventually concedes that this factor was not important to him anyway as he would have arrested anyone in this situation, regardless of appearance. Whatever can be made of this evidence, it is clear that Cst. Kemp did rely on assumptions and stereotypes regarding appearances in this case.

[131]   It is true that an officer, in forming his grounds, does not have to seek out exculpatory factors or rule out possible innocent explanations. However, the absence of common factors or the presence of exculpatory factors do remain relevant to any assessment. (See par. 47 of Ahmad (above)).

[132]   The two officers here in this case referred to a list of factors that are generally present in cases of this kind. Many of these factors were not present. (See also R. v. Pope [2015] BCJ No. 2789 at par. 64).

[133]   In R. v. Mann, 2004 SCC 52, Justice Iacobucci came to a similar conclusion as the Court in R. v. Simpson, (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), and noted that a "hunch based upon intuition gained by experience" is not sufficient to raise a detention above that which is arbitrary. (See also R. v. Pope [2015] BCJ No. 2789 (BCSC) at par. 97.)

[134]   The obligation of the police to take all factors into account (see R. v. Chehil, above at par. 33), while not imposing a duty on the officers to undertake further investigation to rule out possible innocent explanations, does require them to fairly assess the totality of the circumstances, including neutral or equivocal information.

[135]   In R. v. Feeney 1997 CanLII 342 (SCC), [1997] 2 SCR 13 at paragraph 35 Justice Sopinka quoted, with approval, these words from Lord Justice Scott in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.);

[136]   At the same time it is recognized that an officer's training or experience can make otherwise equivocal information probative of the presence of criminal activity (Chehil, at para. 47). In fact, Cst. Kemp’s testimony reflects that he relied upon his experience in forming his belief that an offence had been committed.

[137]   Whatever the case may be, the evidence must permit an independent and rigorous judicial scrutiny. Good hunches or intuition grounded in an officer's experience will not suffice on its own and unchallenged deference is not owed to a police officer's view of the circumstances based on her training or experience in the field. (See Chehil at par. 47.)

[138]   As I have also stated in other decisions, what must be remembered is that when the cases refer to a "reasonable person, standing in the shoes of a police officer" they are not referring to a police officer who holds an inappropriately jaded or overly jaundiced view of the vast breadth of behaviour that innocent civilians engage in on a daily basis. It cannot mean an officer whose observations of everyday actions are made through such a distorted lens that otherwise ubiquitous and omnipresent factors and activity are precipitously suspected to be criminal. (See R. v. Lahtinen [2011] BCJ 2736 (B.C. Prov. Ct.)).

[139]   Officers should carefully assess whether they are simply defaulting to anecdotal examples from other cases to justify hastily formed generalizations about otherwise benign behaviour in the larger population. This is an insidious and dangerous form of inductive reasoning leading to serious breaches of an individual’s liberty rights under the Charter.

[140]   Cst. Kemp testified that he could not think of any innocent explanation as to why two people would meet quickly in such a manner as what happened here. The evidence, in this regard, was highly strained and simply not credible or objectively reasonable.

[141]   For example, in R. v N.O., 2009 ABCA 75 (Alta. C.A.), a case that dealt with whether the lower reasonable suspicion standard had been met, a police officer observed a suspect exit his car and enter an apartment where he was immediately met by a second individual. An actual hand-to-hand exchange was observed, then the suspect left. On appeal the trafficking conviction was overturned because the Court concluded there were other innocent explanations for what had occurred (paras 41-42):

[142]   I am fully aware of the case of R. v. Gill, [2015] BCJ No. 360 (BCSC) where the Court criticizes the N.O. decision with respect to whether a single transaction can constitute the basis for finding reasonable grounds. I fully agree that, of course, it can.

[143]   Every case is different and dependent on the specific facts of that case. The point made in Gill was that the officer had observed a plastic bag that was consistent with bags used for packaging drugs, being exchanged for actual money. The Court there accepted the Crown’s submission that the more closely what the police observe comes to demonstrating an actual purchase and sale of drugs, then the less repetitive conduct by the suspect will be required to meet the requirement of objective reasonableness. Of course, in the case at bar, Cst. Kemp does not observe any transaction take place at all.

[144]   The fact that an actual observation of a transaction was made in Gill (above) was the basis for the court distinguishing it in the case of R. v. Pope [2015] BCJ No. 2789 where Justice Gray, in finding the arrest unlawful, states at paragraph 94:

[145]   In addition, N.O. was cited with approval in the more recent case of Oyston (above) at paragraphs 134-141.

[146]   Again, the officers need not exclude, through investigation, any alternative innocent explanations for their observations. However, they should act on the assumption that their prima facie suspicion may be ill-founded. They should fairly consider whether their hunches or suspicions are properly raised to reasonable grounds that would allow them to exercise the awesome power that they have to arrest an individual.

[147]   For the reasons stated above Cst. Kemp’s belief that an indictable offence had occurred was not objectively reasonable in the totality of the circumstances.

[148]   I find that Cst. Kemp made an unjustifiably hasty decision to arrest Mr. Ahmad. The Crown has failed to establish that there were sufficient objectively reasonable grounds to warrant a lawful arrest. Therefore, the arrest was unlawful. Mr. Ahmed has established a breach of his rights under Section 9 of the Charter.

[149]   Additionally, the searches conducted constituted a breach of Mr. Ahmed’s Section 8 rights as the searches would only be compliant with the Charter, in this instance, if the arrest was lawful.

[150]   Since Charter breaches under Sections 8 and 9 have been established, the parties are directed to set a hearing date in order to deal with the application of Section 24(2) of the Charter.