Tipping the Scale for Unwarranted Arrests: R v Day

Last month, the Supreme Court of Canada (“SCC”) delivered a single-paragraph oral judgment in the matter of R v Day, 2014 SCC 74, dismissing an appeal from the Supreme Court of Newfoundland and Labrador Court of Appeal (“NLCA”), 2014 NLCA 14 [Day]. The SCC’s affirmation of the appellate court’s decision seems to indicate that it is willing to accept minimal corroboration of an informant’s tip as the basis for a lawful unwarranted arrest.

In what follows, I will look at the NLCA decision, emphasizing the reasons of Justice Hoegg that were later affirmed by the SCC.

Facts

The case involves an arrest on drug charges resulting from a reliable informant’s tip. Two parallel procedural narratives were put before the court. In the main storyline, the investigating officer received a tip that the accused, Ryan Day, and his roommate were in possession of and engaged in trafficking marijuana, cocaine and steroids. Later that day, the police observed Day in a possible drug deal and followed him to a bar in downtown St. John’s. When Day reemerged from the bar, he was confronted by police and arrested for drug trafficking. Upon a search incident to arrest, the officers discovered a pound of marijuana in the trunk of Day’s vehicle as well as miscellaneous drug paraphernalia on his person.

At the same time that Day was being surveilled, the investigating officer applied for and received a warrant to search Day’s residence. This warrant was approved roughly half-an-hour before Day’s arrest, and the arresting officer was made aware of its existence. However, the search of Day’s residence—which resulted in separate drug charges—occurred following his initial arrest. Those subsequent charges were later withdrawn by the Crown for fear that the warrant would not survive judicial scrutiny due to significant omissions contained in the application.

The key issue at trial was whether or not Day’s arrest and the unwarranted search of his vehicle were lawful. And, if so, should the items seized from his car be excluded from evidence?

Acquittal and reversal on appeal

The standard for assessing the lawfulness of an unwarranted arrest was articulated by the SCC in R v Storrey, [1990] 1 SCR 241 [Storrey]. To satisfy the Storrey test, the court must determine that (i) the police officer subjectively believed he had reasonable and probable grounds to make an arrest and (ii) this belief is “justifiable from an objective point of view” (Storrey, para 17). The first prong of the test is not usually a live issue; however, in Day, it is of central importance given the role that the (ultimately discredited) search warrant may have played in informing the arresting officer’s subjective belief that Day had committed—or was about to commit—an indictable offence.

Indeed, the trial judge found that the police lacked both the “subjective” and “objective” grounds for making the arrest (Day, para 11). Additionally, she found that the “public manner” of the search of Day and his vehicle (which occurred on a downtown street in the late afternoon) to be intrusive and “in complete disregard of his Charter rights” (para 63). Thus, the trial judge found that Day’s section 8 and 9 Charter rights had been violated and excluded from evidence the items seized in the search, resulting in Day’s acquittal (para 6).

This disposition was overturned on appeal. The NLCA found no evidence of a Charter breach, and thus did not need to consider whether or not to exclude the evidence under s. 24(2). With respect to Day’s warrantless arrest, the appellate court employed subtle reasoning in determining that the search warrant’s apparent dubiousness was not detrimental to the Crown’s cause:

 The fact that the officer may not have arrested Mr. Day had the warrant not been issued does not mean that the officer’s subjective belief was vitiated, or that his grounds were not objectively justifiable. The police may have a subjective belief that is objectively justifiable to arrest a person whom they choose not to arrest, and the fact that the arrest is not carried out does not mean that the police do not have the grounds (para 25).

Crucially, the NLCA’s finding that Day’s arrest satisfied the Storrey test depended on its determination that both prongs entail a question of law (not one of fact) and are therefore reviewable according to a standard of correctness (as opposed to a deferential standard) (see paras 8–9). In a strong dissent, Justice Rowe emphatically rejected this reasoning, arguing that the officer’s subjective belief in having reasonable and probable grounds for the arrest is a question of fact. Thus, Justice Rowe argued (unsuccessfully) that the trial judge’s finding should be reviewed according to a standard—not of correctness—but rather of “palpable and over-riding error” (para 77).

Commentary

Day is arguably an illustration of circumstances in which the Storrey test proves to be a weak safeguard of Charter rights.

The NLCA majority noted that “informant information can be variable in its reliability, and care must be taken by the police not to act on it precipitously or cavalierly” (para 34). However, Day’s arrest was found to be lawful almost entirely on the basis of a tip that was only minimally corroborated. Prior to Day’s arrest, the investigating officer verified cursory details of the tip—for instance, information about Day’s address and living arrangements, as well as the vehicle he drove (para 2)—via a second unnamed source. The court noted that the police had worked with the primary tipster on 20 past occasions, and that his or her information had always proved to be correct (para 50). Furthermore, the tipster received financial compensation from the police only when his or her information turned out to be accurate (ibid).

However, it is not entirely clear why Day’s arrest—and the subsequent search of his vehicle—should have occurred without an arrest warrant in place. As the dissenting Justice Rowe noted:

What the police did here is clear. They wanted to see if Mr. Day had drugs in his car. So, they arrested him in order to make a search of his car “incidental” to the arrest. While it is not necessary for the disposition of this case, I would question whether the officers acted in good faith. Must they not have understood that they were “pushing the envelope”? The police “got lucky” by finding drugs in the trunk of Mr. Day’s car (para 104).