SUPREME COURT OF CANADA

Citation: R. v. Burke, 2009 SCC 57, [2009] 3 S.C.R. 566

Date: 20091204

Docket: 33031

Between:

Her Majesty The Queen

Appellant

and

Abede Burke

Respondent

Official English Translation: Reasons of Cromwell J.

Coram: LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 4)

Dissenting Reasons: (paras. 5 to 8)

Fish J. (LeBel, Abella, Charron and Rothstein JJ. concurring)

Cromwell J. (Deschamps J. concurring)

R. v. Burke, 2009 SCC 57, [2009] 3 S.C.R. 566

Her Majesty The Queen Appellant

v.

Abede Burke Respondent

Indexed as: R. v. Burke

Neutral citation: 2009 SCC 57.

File No.: 33031.

2009: November 19; 2009: December 4.

Present: LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for quebec

Criminal law — Arrest without warrant — Reasonable grounds — Accused acquitted at trial of narcotic offence — Trial judge finding police officer did not have reasonable grounds to arrest accused without warrant — Whether trial judge imposed burden more onerous than “reasonable grounds” standard for arrest without warrant — Criminal Code, R.S.C. 1985, c. C‑46, s. 495(1)(c).

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.

Held (Deschamps and Cromwell JJ. dissenting): The appeal should be dismissed.

Per LeBel, Fish, Abella, Charron and Rothstein JJ.: The trial judge’s conclusion that the reasonable grounds required under s. 495 had not been made out in the particular circumstances of this case rested essentially on an appreciation of the evidence before her. Her reasons explained why the arresting officer’s evidence was inconsistent, contradictory and wanting as to the circumstances of the arrest. [3]

Per Deschamps and Cromwell JJ. (dissenting): The trial judge’s reasoning imposed a heavier onus than that required by s. 495(1)(c). It required the officer to be certain, or at least persuaded, that the person about to be arrested is the one against whom a warrant of arrest is in force, rather than simply to have reasonable grounds to believe so. [6]

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, s. 495.

APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Vézina and Côté JJ.A.), 2009 QCCA 85, 63 C.R. (6th) 277, 248 C.C.C. (3d) 450, [2009] J.Q. no 222 (QL), 2009 CarswellQue 11110, upholding the accused’s acquittal. Appeal dismissed, Deschamps and Cromwell JJ. dissenting.

Sonia Lebel and Benoît Lauzon, for the appellant.

Louis Belleau, as amicus curiae.

The judgment of LeBel, Fish, Abella, Charron and Rothstein JJ. was delivered by

[1] Fish J. — This is an appeal by the Crown, as of right, from a decision of the Québec Court of Appeal affirming the respondent’s acquittal at trial on a charge of possession of cocaine for the purpose of trafficking (2009 QCCA 85, 248 C.C.C. (3d) 450).

[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.

[3] 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.

[4] Accordingly, with respect for those who are of a different view, we would dismiss the appeal.

English version of the reasons of Deschamps and Cromwell JJ. delivered by

[5] Cromwell J. (dissenting) — I have read the reasons of my colleague Justice Fish and, with respect, I am unable to agree with him.

[6] The question of law in this appeal is whether the trial judge imposed a burden more onerous than the one provided for in s. 495(1)(c) of the Criminal Code, R.S.C. 1985, c. C‑46. I agree with Chamberland J.A., the dissenting judge in the Quebec Court of Appeal, that the answer is yes, for the following reasons:

[translation] The trial judge stated that she was unable to “conclude that the officer had objective grounds for the arrest”. Why? Because “he did not investigate when the identification of the accused was contested, even though he was told that the person being sought after by the warrant was the brother”. Similarly, she “considers that the officer was obliged, on the face of the protest and information given by the accused to proceed to a verification” and adds that “the attitude of arresting a person without further verification . . . appears capricious”.

In my view, and with the greatest respect for the trial judge, this reasoning is erroneous in that it imposes on the officer a different and heavier burden than what is required in s. 495(1)(c) Cr. C. It would require the officer to be certain, or at least persuaded, that the person about to be arrested is the one against whom a warrant of arrest is in force, rather than simply to have reasonable grounds to believe so.

(2009 QCCA 85, 248 C.C.C. (3d) 450, at paras. 23‑24)

[7] Despite the able submission of Mr. Belleau, the amicus curiae in this case, I would allow the appeal and order a new trial.

Appeal dismissed, Deschamps and Cromwell JJ. dissenting.

Solicitor for the appellant: Director of Criminal and Penal Prosecutions of Quebec, Montréal.

Solicitors for the amicus curiae: Filteau & Belleau, Montréal.