Reasonable and probable grounds must have an objective component

R. v. Brown, 2012 ONCA 225 is a good source for the proposition that reasonable and probable grounds must be objectively demonstrable:

[14]       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.

[15]       The appellant'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.  Officer Manafo's evidence that the second person may have walked away from the appellant because he or she caught sight of the police cruiser is speculation. 

[16]       Perhaps the best indication that there was nothing particularly suspicious in the conduct is the fact that Officer Szarzec, who was in a better position to see the conduct than Officer Manafo, did not notice anything about the appellant, let alone conduct that would cause him to be suspicious.  It is also telling that Officer Szarzec indicated that even if he had witnessed the movements described by his partner, he would not have arrested the appellant based on those movements.  Officer Szarzec testified that he would have spoken to the appellant or briefly detained him for investigative purposes. 

[17]       Officer Manafo put some emphasis on the way in which the appellant held his right hand both during and after the interaction with the other person.  Without some explanation from Officer Manafo as to why these actions were of some particular significance in the drug world, they do not elevate the circumstances to reasonable and probable grounds to arrest the appellant: see, for example, R. v. Hanson, [2009] O.J. No. 4152, at para. 64 (S.C.).

[18]       In forming his belief that he had grounds to arrest the appellant, Officer Manafo also indicated that the actions took place in a high crime area.  The evidence supporting that contention was thin to say the least.  Both police officers testified that they were assigned to patrol the area around Church and Wellesley Streets in Toronto as part of an anti-violence intervention strategy.  Officer Manafo testified that the criminal activity, including drug activity, had apparently increased in that area.  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.  There was no evidence that the corner where the arrest occurred was considered to be a high drug activity area.    

[19]       In our view, despite the police officer's honest belief that he had reasonable and probable grounds to arrest the appellant, the totality of the circumstances do not provide a basis upon which that belief could be said to be objectively reasonable.  The arrest was unlawful and infringed the appellant's right not to be arbitrarily detained.