Identity issues and reasonable grounds in Supreme Court

Today's Supreme Court decision in R. v. Burke, 2009 SCC 57(Que. C.A., January 19, 2009) (33031) deals with identity issues and reasonable grounds.

"A police officer arrested the accused without a warrant and, following a search incidental to arrest, found a bag of crack in the accused's pocket.  The arresting officer did not investigate the accused's claim that he was the brother of the person sought by the arrest warrant at the time of the arrest.  At the police station, however, the accused was confirmed not to be the person sought by the warrant.  The trial judge acquitted the accused on a charge of possession of cocaine for the purpose of trafficking, finding that, despite the resemblance between the accused and his brother, the officer did not have objective grounds for the arrest because he had not investigated the accused's claim of mistaken identity at the time of the arrest.  She concluded that the arrest was illegal, the subsequent search was unreasonable and excluded the evidence.  The Court of Appeal, in a majority decision, upheld the acquittal.  The issue in this appeal as of right was whether the trial judge erred in law 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." 

The SCC (5:2) dismissed the appeal. 

Justice Fish wrote as follows (at pages 1-2): "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." 
James Morton
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