R. v. Storrey, [1990] 1 S.C.R. 241
Ronald Percy Storrey Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. storrey
1989: November 3; 1990: February 15.
Present: Lamer, Wilson, La Forest, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Arbitrary detention or imprisonment -- Accused arrested for aggravated assault and detained 18 hours before charge laid -- Accused kept in custody for the purposes of conducting an identification parade -- Whether accused's arrest lawful -- Whether accused arbitrarily detained -- Canadian Charter of Rights and Freedoms, s. 9 -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 450(1), 454(1).
Three Americans returning to Michigan were cut off by another vehicle as they approached the border near Windsor and were forced to stop. The driver and passenger of this vehicle got out and came over to the Americans' car. The driver punched one of the Americans while his passenger slashed all three of them with a knife. The victims gave to the police a general description of the assailants and of their vehicle -- a blue Ford, possibly a Thunderbird manufactured during the years 1973 to 1975. Two of the victims were later brought to the police station and, after reviewing some 800 photographs, selected 4 or 5 pictures of men who "looked like" the assailant with the knife. Significantly they both chose the photograph of one Darryl Cameron. Following an investigation, the police eliminated Cameron as a suspect. But the investigating officer's searches revealed that the appellant had been stopped on numerous occasions driving a 1973 blue Thunderbird, that he closely resembled Cameron and that he had a criminal record which included crimes of violence. A police bulletin was issued for his arrest on the charge of aggravated assault. The appellant was found six days later and arrested at 7:25 p.m. He was charged the next day at 1:44 p.m. The officer stated that the 18‑hour delay in laying the formal charge was occasioned by the need to bring the victims to Windsor in order to conduct the identification parade which was the only method of identification available. At the line‑up, the victims identified the appellant as their assailant. The police also found the ownership for a 1973 blue Thunderbird in the appellant's residence.
At trial, the judge found that the investigating officer had reasonable and probable grounds for the arrest but that the arrest was unlawful because it did not meet the criteria of s. 450(2) of the Criminal Code. He concluded that the arrest was arbitrary and in violation of s. 9 of the Canadian Charter of Rights and Freedoms and ordered a stay of proceedings. The Court of Appeal allowed the Crown's appeal and ordered a new trial. This appeal is to determine whether the appellant's arrest and detention violated s. 9 of the Charter.
Held: The appeal should be dismissed.
The appellant's arrest was lawful and proper. Section 450(1) of the Code is applicable to this case and not s. 450(2). Section 450(1) requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. In this case, the trial judge's finding that the investigating officer had reasonable and probable grounds to make the arrest was amply supported by the evidence. The reasonable grounds could be justified subjectively as well as objectively.
An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest. Here, the police had reasonable and probable grounds to arrest the appellant and there was nothing improper about their intention to continue the investigation. Neither that intention nor the continued investigation made the arrest unlawful.
The appellant's detention for 18 hours before the charge was laid, primarily for the purpose of furthering the police investigation, did not constitute an arbitrary detention. The identification parade was the fairest means as well as the sole practical means of identification. Since the appellant was arrested in the evening, it is unlikely that the victims, who lived outside the jurisdiction, could be found and brought to the line‑up before the next morning. The appellant was brought before a justice of the peace and charged immediately after the line‑up. In these circumstances, the delay was not unreasonable and offended neither s. 454(1) of the Code nor s. 9 of the Charter.
Cases Cited
Distinguished: R. v. Duguay, Murphy and Sevigny (1985), 1985 112 (ON CA), 18 C.C.C. (3d) 289, aff'd on other grounds, 1989 110 (SCC), [1989] 1 S.C.R. 93; referred to: Dumbell v. Roberts, [1944] 1 All E.R. 326; R. v. Brown (1987), 1987 136 (NS CA), 33 C.C.C. (3d) 54; Liversidge v. Anderson, [1942] A.C. 206; R. v. Dedman (1981), 1981 1631 (ON CA), 32 O.R. (2d) 641; Dallison v. Caffery, [1964] 3 W.L.R. 385; Holgate‑Mohammed v. Duke, [1984] 1 S.C.R. 437; R. v. Koszulap (1974), 1974 1461 (ON CA), 27 C.R.N.S. 226; R. v. Precourt (1976), 1976 692 (ON CA), 39 C.C.C. (2d) 311; Ralph v. Pepersack, 335 F.2d 128 (1964).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 9, 24(1).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 450(1) [rep. & sub. c. 2 (2nd Supp.), s. 5], (2) [idem], 454(1) [idem; am. 1974‑75‑76, c. 93, s. 46(1)], 483 [am. 1972, c. 13, s. 40; am. 1974‑75‑76, c. 93, s. 62].
APPEAL from a judgment of the Ontario Court of Appeal rendered January 17, 1986 allowing the Crown's appeal from a judgment of Cusinato Co. Ct. J. and ordering a new trial. Appeal dismissed.
Andrew Z. Kerekes, for the appellant.
Dana L. Venner, for the respondent.
//Cory J.//
The judgment of the Court was delivered by
Cory J. -- At issue on this appeal is whether the arrest and detention of the appellant Storrey constituted a breach of the provisions of s. 9 of the Canadian Charter of Rights and Freedoms.
I. Factual Background
On July 26, 1983 three Americans were driving back to their homes in the State of Michigan. As they approached the International Bridge in Windsor, Ontario, another vehicle suddenly cut them off and forced them to stop. The driver and passenger of this vehicle got out and came over to the Americans' car. The driver punched one of the Americans while his passenger slashed all three of them with a knife. The injuries of one were serious enough to require hospitalization. The assailants then departed before they could be apprehended.
The two less seriously injured victims were taken to the police station shortly after the incident and reviewed some 800 photographs. From these they chose 4 or 5 "look-alikes". Significantly they both chose the photograph of one Darryl Cameron as "looking like" the assailant with the knife. All three of the victims gave a general description of the attackers that was similar. This enabled the police artist to make a composite drawing of the assailants. The victims also described the car used by their attackers as being a Ford, possibly a Thunderbird, blue in colour and manufactured during the years 1973 to 1975.
The ensuing investigation was rightly described by the trial judge as good police work. The officer in charge of the investigation, Detective- Sergeant Larkin, drove the victims about the City of Windsor after the incident. At that time the victims identified the car used by their attackers as a Thunderbird. Larkin then issued a police bulletin which contained a general description of the assailants and the car they used.
Larkin investigated the activities of Cameron whose picture had been identified by two of the victims. He learned that Cameron had not even been in the jurisdiction at the time of the assault. The officer then turned to the "persons investigated" file kept by the Windsor police. He undertook this review in order to locate and trace vehicles similar to that described by the victims, as he knew that a 1973 to 1975 blue Thunderbird was, if not a rare vehicle, certainly not a common one in the City of Windsor. As a result of his searches Larkin discovered that the appellant Storrey had been stopped on a number of occasions driving a 1973 blue Thunderbird. He then obtained a photo of Storrey from the files and compared it to the photo of Cameron. Larkin testified that the photos indicated that the two men were so similar that in his words they could have been brothers or twins. In addition, he found that the appellant had a criminal record which included crimes of violence.
As a result of these investigations, Larkin concluded that he had reasonable and probable grounds for the arrest of the appellant. He issued a bulletin for the arrest of Storrey on August 4. It was not easy to find the appellant. It was not until August 10 at 7:25 p.m. that he was arrested. However, the appellant was not formally charged and brought before a Justice of the Peace until shortly after 1:44 p.m. the next day, a little over eighteen hours from the time of his arrest. While the appellant was in custody, the police obtained a search warrant for his residence and found there the ownership for a 1973 blue Thunderbird car. When Storrey was asked where the car was he replied that he had "sorta" sold the car since he "didn't want it near him".
Larkin frankly stated that the delay in laying the formal charge resulted from his desire to have the victims attend at the police station to witness a line-up to see if they could identify the appellant. He explained that it was difficult to locate the victims because they were in another jurisdiction at some distance from the police station. Furthermore, in his view a police line-up was the only method of identification that was available to see if the victims could identify Storrey. Clearly, it was difficult to find Storrey as exemplified by the week that passed from the issuing of the bulletin to the time of his arrest. A less intrusive method of identification, such as attendance by the witnesses at the appellant's place of work, was thus unavailable.
At the line-up the victims identified the appellant as their assailant. Larkin readily conceded that if Storrey had not been identified at that time he would have been released. Indeed, Keith Girard, who was known to be an associate of the appellant, had also been arrested and had participated in the line-up. He was not identified and was released. It should be noted as well that there has been no suggestion that the police acted in bad faith at any time during the course of their investigation and arrest of the appellant.
II. The Decision on the Voir Dire
At trial it was contended that the arrest and detention of the appellant contravened the right guaranteed to him by s. 9 of the Charter. That section provides that: "Everyone has the right not to be arbitrarily detained or imprisoned". The trial judge then conducted a voir dire to determine whether there had been a breach of s. 9 of the Charter. Unfortunately, the reasons he gave at the conclusion of the proceeding indicate some confusion on his part. The appellant was arrested without a warrant on a charge of aggravated assault. Therefore, the basis for his arrest is to be found within s. 450(1) (now s. 495(1)) of the Criminal Code, R.S.C. 1970, c. C-34. That section provides that a peace officer may arrest without a warrant a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence. Nevertheless, the trial judge stated that the arrest was unlawful because it did not comply with the requirements of s. 450(2) of the Criminal Code. That section was inapplicable in this case. It only applies to an offence which is either a summary conviction offence, a hybrid offence or an indictable offence listed in s. 483 (now s. 553) of the Code, which list does not include aggravated assault. Sections 450(1) and 450(2) read as follows:
- (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which the person is found.
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 483,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he has reasonable and probable grounds to believe that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend in court in order to be dealt with according to law.
It can be seen that the requirements for an arrest without warrant are stricter in the circumstances provided for by s. 450(2).
The error made by the trial judge regarding s. 450 was serious enough in itself to question the validity of the ruling. However, there are still further indications of confusion. Early in his reasons, the trial judge stated that while Larkin undoubtedly had reasonable and probable grounds "in his own mind" for an arrest, the purpose of the arrest was strictly "as a further investigative tool to confirm or deny the suspicions of Detective-Sergeant Larkin". But later on, the trial judge appeared to make a clear finding of fact that Larkin objectively had a sufficient basis for making the arrest when he stated that "Detective-Sergeant Larkin had reasonable and probable grounds, based on the evidence he accumulated" to make the arrest, and that the only reason the arrest was unlawful was that it did not meet the criteria of s. 450(2). It was for this reason (the failure to meet the requirements of s. 450(2)) that the trial judge determined that the arrest was arbitrary and therefore in violation of s. 9 of the Charter. He went on to find that the appropriate remedy under s. 24(1) of the Charter was a stay of proceedings.
Court of Appeal
The Court of Appeal of Ontario, in unanimous reasons, concluded that the trial judge was in error. It held that there were reasonable and probable grounds for the arrest, that the detention was neither undue nor arbitrary and directed a new trial.
III. Were There Reasonable and Probable Grounds for Arresting the Appellant?
In order to determine whether the appellant was arbitrarily detained or imprisoned in this case, it is necessary to first review the authority under which Detective-Sergeant Larkin was acting when the arrest was made. The relevant provisions of the Code are ss. 450(1) and 454(1) (now ss. 495(1) and 503(1)). These sections read as follows:
- (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which the person is found.
- (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 449(3) shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law, namely:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,
unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,
(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (3) or otherwise conditionally or unconditionally, and so releases him.
Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.
The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest. The vital importance of the requirement that the police have reasonable and probable grounds for making an arrest and the need to limit its scope was well expressed in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), wherein Scott L.J. stated at p. 329:
The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.
There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), 1987 136 (NS CA), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228.
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
In the case at bar, the trial judge specifically stated that "Larkin had reasonable and probable grounds" to make the arrest. In my view there was ample evidence on which the trial judge could very properly make that finding. The reasonable grounds could be based subjectively on the testimony of Larkin and objectively upon the cumulative effect of the following items; (a) the possession and ownership by Storrey of a 1973 blue Thunderbird, which was a relatively unusual and uncommon car and was the type of car used in the infraction; (b) the fact that he had been stopped by the police on several occasions driving that car; (c) his past record of violence; (d) the fact that two of the victims picked out a picture of Cameron as someone who looked like their assailant; and (e) the remarkable resemblance of Storrey to Cameron. These factors taken together clearly were sufficient in their cumulative effect to constitute reasonable and probable grounds for Larkin to arrest the appellant. The Court of Appeal was correct in coming to the conclusion that this was indeed the finding of the trial judge on this issue and that he was correct in making that finding.
It should be noted, as well, that there is nothing to indicate that there was anything in the circumstances of the arrest which would make it suspect on any other ground. That is to say, there is no indication that the arrest was made because a police officer was biased towards a person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed towards the person arrested. These factors, if established, might have the effect of rendering invalid an otherwise lawful arrest. However, the arrest of the appellant was in every respect lawful and proper.
It must next be seen whether the appellant could be detained after his arrest so that the police could continue their investigation.
Did the Professed Intention of the Police to Continue the Investigation After the Arrest Invalidate It?
It is the appellant's position that because the arrest was made in order to put the appellant in a line-up, it was improper. Reliance was placed on the majority decision of the Ontario Court of Appeal in R. v. Duguay, Murphy and Sevigny (1985), 1985 112 (ON CA), 18 C.C.C. (3d) 289, affirmed on other grounds, 1989 110 (SCC), [1989] 1 S.C.R. 93. In that case, MacKinnon A.C.J.O. at p. 297, quoted Martin J.A. in R. v. Dedman (1981), 1981 1631 (ON CA), 32 O.R. (2d) 641, at p. 653, wherein he stated:
. . . a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code . . . .
MacKinnon A.C.J.O. used this quote to support his position that an arrest which is made solely to assist in the investigation is an arrest made for an "improper purpose".
In my view, the judgment of MacKinnon A.C.J.O. must be considered in the context of the case itself. The facts in the Duguay decision were far different from those in the case at bar. In the Duguay case, on the night before the theft of his property the victim saw three young men drinking beer at the house next door. They exhibited an interest in his activities and in particular inquired, as he was putting his dog in the garage, whether the victim always put his dog in the garage. That night when the victim came home he discovered the theft of his belongings. The next morning he told his neighbour of the theft and about the incident of the night before. The neighbour advised him that he knew who the three young men were. The neighbour called the young men and asked them to his house. When they arrived the police arrested the young men and some time later obtained a confession from them that they had committed the theft.
It is important to note that the neighbour did not state and did not know that the three men committed the robbery. The only information the neighbour possessed was that of the identity of the three men the victim had seen drinking beer the night before. There was absolutely no evidence connecting the three accused with the crime. It came as no surprise that the trial judge found that there was no basis for the police statement that they had reasonable and probable grounds to believe the accused had committed the crime. Indeed, one of the officers testified that: "We arrested them to determine whether they actually did it or not". Thus the arrest in the Duguay case could not and did not comply with the requirements of s. 450(1) of the Code and the arrest was unlawful. Against this background of an unlawful arrest, the Court of Appeal then considered whether the detention of the accused violated s. 9 of the Charter. It was in this context that MacKinnon A.C.J.O. stated that an arrest which had been made solely to assist in an investigation was an arrest made for an "improper purpose".
The statement goes no further than confirming that an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime. It should not be taken as establishing a principle that whenever a lawful arrest is made, in circumstances where the police intend to do further investigation, that the arrest should then be considered to have been made for an improper purpose.
On the contrary, it has long been the rule in Canada and the United Kingdom that the police can continue their investigation subsequent to an arrest. The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible.
This well established principle was reiterated by Lord Denning, M.R., in Dallison v. Caffery, [1964] 3 W.L.R. 385 (C.A.), at p. 398:
When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he says he was working, for there he may find persons to confirm or refute his alibi. The constable can put him up on an identification parade to see if he is picked out by the witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but also to the community at large. The measures must, however, be reasonable.
The same principle was confirmed by the House of Lords in Holgate-Mohammed v. Duke, [1984] A.C. 437, at p. 445.
An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest. To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest the appellant. Further, there was nothing improper about the police intention to continue their investigation of the crime after they had made the arrest. Neither that intention nor the continued investigation made the arrest unlawful. The circumstances of the arrest of the appellant did not constitute an infringement of s. 9 of the Charter.
IV. Did the Detention for 18 Hours Before the Charge Was Laid Constitute an Arbitrary Detention?
It was the appellant's position that his detention for 18 hours before a formal charge was laid was an unreasonable delay caused solely by the desire of the police to further their investigation. It was said that the detention contravened the provisions of s. 454(1) of the Code and s. 9 of the Charter. As noted above, Detective-Sergeant Larkin candidly stated that the delay in laying the formal charge was occasioned by the need to bring the victims to Windsor in order to conduct the identification parade. He conceded that although he had adequate grounds to arrest the appellant, he did not have sufficient evidence to warrant a conviction without a further identification. He readily agreed that if the appellant had not been identified, he would have been released in the same manner as Girard. The issue then is whether in the circumstances of this case the detention of the appellant for the significant period of a little over 18 hours, primarily for the purpose of furthering the police investigation, constituted a violation of s. 9 of the Charter.
For convenience, s. 454(1) is here set out again:
- (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 449(3) shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law, namely:
(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,
unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,
(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (3) or otherwise conditionally or unconditionally, and so releases him.
In R. v. Koszulap (1974), 1974 1461 (ON CA), 27 C.R.N.S. 226, at p. 234, Martin J.A. of the Ontario Court of Appeal carefully noted that s. 454(1) does not give a police officer "an unqualified right to keep such person in custody for the purposes of investigation for a period of 24 hours before taking such person before a justice". Instead, he observed, the section states that the police must take the person before a justice without unreasonable delay and that the 24 hours is simply the outer limit of the time span.
However, in the circumstances of this case the elapsed time was not unreasonable. It will be remembered that over six days had elapsed from the time of issuing the bulletin for the appellant's arrest until the moment that the arrest was made. This is clearly not a case where the victim could, for example, be taken to the place of employment of the suspect to see if an identification could be made. An identification parade seemed not only the fairest means of identification, but also the sole practical means of identification. Further, the victims themselves lived outside the jurisdiction. It was necessary to make arrangements to bring them across the border to attend the line-up. It will be recalled that the appellant was arrested at 7:25 at night. It would be unlikely that the victims could be found and brought to the line-up before the next morning. The appellant was brought before the justice immediately following the line-up which was held shortly after 1:44 p.m. This was a little more than 18 hours after the arrest.
In R. v. Precourt (1976), 1976 692 (ON CA), 39 C.C.C. (2d) 311 (Ont. C.A.), Martin J.A. considered a somewhat similar factual situation. In that case the accused was arrested for robbery at 4:30 p.m. He gave an exculpatory statement to the police at 11:30 p.m. and was kept in detention overnight so that he could be placed in a line-up the next morning. On these facts, Martin J.A. at p. 319 stated:
It could not be suggested that there was anything improper in the investigation conducted by the police on the evening of August 21, 1973, with the apparent assistance of the appellant, or that the investigating officers were not justified in holding the appellant at the police station overnight with a view to placing him and [his co-accused] in a line-up the following morning.
It that case, it was held that the only improper conduct on the part of the police consisted in taking the accused back to the police station after he had been remanded in custody by a provincial judge when he should have been taken to a provincial jail. The fact that the accused was kept in custody for the purposes of conducting an identification parade, before taking him before a magistrate, was not deemed to be an unreasonable delay.
Position in Other Jurisdictions
It has been seen that the English authorities permit the police to continue their investigations following the arrest while the accused is detained and before the arrested person is formally charged.
The Australian authorities are of little or no assistance in the consideration of this issue as the wording of the applicable Australian legislation is very different from ours.
The American cases dealing with this issue are also of limited value as most of them deal with Rule 5(a) of the Federal Rules of Criminal Procedure. Rule 5(a) reads:
RULE 5. PROCEEDINGS BEFORE THE COMMISSIONER
(a) Appearance before the Commissioner.
An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.
The American authorities stress the importance of the factual background to the resolution of each case. Nevertheless, of interest is the case of Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964). The court there stressed again the importance of the facts. It then continued at p. 139:
In the circumstances it was reasonable and necessary to hold Ralph in custody until Mrs. Peck could, with reasonable dispatch, come to the station and attempt to identify him . . . . Had she been able to positively identify him as her assailant, he should have been formally charged immediately. If, on the other hand, she could say with certainty that he was not the person who attacked her and had not other circumstances justifying his detention developed, he should then have been released. Confrontation by the only witness to the crime for which he was convicted presented the most expeditious, probably the most reliable and perhaps the only, means of determining whether Ralph was telling the truth. [Emphasis in original.]
The court concluded that there was not unreasonable delay in that case and that even if Rule 5(a) was applicable, it had not been violated.
This conclusion was reached even though the reasons noted further at p. 139 that:
The second, and more fundamental, answer . . . is that neither Rule 5(a) nor the McNabb-Mallory rule is applicable to criminal prosecutions in the state courts.
It can be seen that this American decision seems to support the position I have taken.
V. Disposition
In the particular circumstances of the case at bar, the delay was not unreasonable and in my view offended neither the provisions of s. 454(1) of the Criminal Code nor s. 9 of the Charter.
In the result, the appeal is dismissed and the order of the Court of Appeal directing a new trial is confirmed.
Appeal dismissed.
Solicitors for the appellant: Kerekes, Collins, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
