R. v. WILLIAMS, 2024 ONCA 69, JANUARY 31, 2024.

FACTS: The accused was released on an undertaking that contained a no-contact condition with the complainant (Ms. Chaisson), unless she consented in writing. The complainant did so, and sent her written consent to the police. Approximately a month later, the police saw the accused and the complainant together. They checked CPIC and discovered the undertaking. They did not check to determine if the complainant had provided consent for the accused to communicate with her. The police arrested the accused for breach of undertaking and for breach of the Cannabis Control Act, 2017, S.O. 2017.  The police searched the accused’s vehicle and found a firearm.  The accused was charged with various offences.

At his trial, the accused argued that the firearm should be excluded on the basis that the arrest was unlawful and the subsequent search unreasonable as a result, in violation of sections 9 and 8 of the Charter.  The trial judge found that there had not been a breach of the Charter and the accused was convicted. He appealed to the Ontario Court of Appeal.

HELD: The appeal was dismissed. The Court of Appeal concluded that the arrest was unlawful, but that the evidence should not be excluded (at paragraph 12):

The police did not have reasonable and probable grounds to arrest the appellant for breach of the undertaking. This is not a case where the police had to investigate beyond available information to determine whether the appellant was breaching the no-contact condition by being with Ms. Chaisson. The information that there was no breach – Ms. Chaisson’s consent – was in the possession of the police – it was on Versadex. This database was not only available to the officer in the station advising those at the scene but was one that he looked at to obtain information that allowed the officers at the scene to determine that the appellant was in fact with Ms. Chaisson. That officer acknowledged that he should also have checked Versadex to see if she had provided consent.

Reasonable Probable Grounds:

The Court of Appeal indicated that “[b]efore reasonable grounds exist, ‘the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable’…There is, however, a limit to the extent of pre-arrest inquiry that police must conduct. ‘… [T]he obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations’…Whether a particular inquiry is one that an arresting officer must make is a context specific question. Relevant factors include the ease by which information could be obtained, whether something said by the suspect or on the suspect’s behalf gives rise to the need for further enquiry, and the urgency of the situation” (at paragraphs 43 and 44). 

This Case:

In this case, the Court of Appeal held that the trial judge should have concluded that the police lacked reasonable and probable grounds for the arrest and that the search was not justified (at paragraphs 56 and 56):

The trial judge should have concluded that the police lacked reasonable and probable grounds to arrest the appellant for breach of the no-contact condition in the undertaking. The Crown acknowledges that Officer Ghazarian was aware of the consent exception to the no-contact condition. Officer Yeo clearly was as well, since Officer Ghazarian testified that he knew of the consent exception because Officer Yeo told him the appellant was not to “communicate directly or indirectly with [Ms.] Chaisson without consent”. Officers Ghazarian and Yeo interacted on the information to be obtained prior to arrest. In circumstances where the police were using two databases, CPIC and Versadex, to store information relating to the appellant’s release conditions – Versadex precisely because the information on it would be immediately accessible – and both were being accessed for information relating to the appellant’s potential arrest, it was unreasonable to not look at Versadex to see whether consent from Ms. Chaisson had been provided.

The search that followed could not be justified as a search incident to that arrest.

Section 24(2):

The Court of Appeal concluded, however, that the evidence obtained should not be excluded (at paragraph 13):

However, the police did have proper grounds to search the vehicle under the CCA. There is no basis on which to disturb the trial judge’s factual findings that support this conclusion. After applying a fresh s. 24(2) analysis, I reach the same conclusion as the trial judge did – the evidence of the firearm should not have been excluded.