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Hunch or Intuition

  • March 10, 2017
  • Clayton Rice, Q.C.

On April 11, 2011, Steven Quilop attracted the curiosity of the Calgary police based on an anonymous tip that he was a cocaine trafficker. There was no evidence about the informant’s credibility or reliability. Nor was there any evidence that corroborated the tip. But the police decided to send out a surveillance team. Here’s what happened.

The next day Quilop was driving his Honda Civic. Maria Basanez was the passenger. The police saw someone get into Quilop’s car and then get out two minutes later carrying an object the size of a baseball. About an hour later Quilop went into an apartment building carrying a pouch and came out six minutes later still carrying the pouch. That was enough for the police. Quilop was arrested without a warrant under s. 495(1)(a) of the Criminal Code. The police hit pay dirt when they found cocaine during a warrantless search of the Honda. Quilop moved to suppress which was dismissed by the trial judge in a ruling reported as R v Basanez, 2014 ABQB 348. The prosecution against Basanez was stayed at the close of the Crown’s case and Quilop was convicted of possession for the purpose of trafficking. He appealed.

On March 1, 2017, a panel of the Alberta Court of Appeal comprised of Justices Ronald L. Berger, P.W.L. Martin and Brian K. O’Ferrall released its per curiam opinion reported as R v Quilop, 2017 ABCA 70 [indexed as R v Basanez (appeal by Quilop) on QL]. The evidence was excluded and Quilop acquitted. At the core of the ruling was the question whether the two meetings constituted reasonable grounds for Quilop’s arrest under the test in R v Storrey, [1990] 1 SCR 241. It is not enough that a police officer believed that Quilop had committed or was about to commit an indictable offence. The police officer’s subjective belief must be objectively justified. In Storrey, Justice Peter Cory, writing for a unanimous court, put the test this way, at para. 17: “…[T]he 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.”

In Quilop, it appears that the two meetings were relied upon to establish both the subjective belief of the arresting police officer as well as the reasonableness of that belief assessed on an objective basis. It is not axiomatic that one establishes the other. The problem also persists throughout the case law where the police observe hand-to-hand exchanges in public places and use that kind of surveillance to establish probable cause in search warrant applications. I will begin, then, not with the subjective belief of the police based on the two meetings but with this question: What was absent on an objective basis? The Quilop court focused on that point, in language very similar to other courts, at paras. 31-2:

“The surveillance information consisted of three observations over two days and only two of the observations were said by police to be consistent with illegal drug activity. The observations were of extremely short duration. They took place in a matter of minutes. Not much was observed. There was no evidence of the appellant using a cellphone. There was no observation of a hand-to-hand exchange. There was no evidence that anything transpired in the residence or the vehicles the appellant was observed to have entered and exited. Furthermore, there was nothing connecting the persons the appellant met or the residence he visited to known drug dealers. And there was no evidence of evasive or counter-surveillance tactics by the appellant.

The Crown argued that it would be difficult to imagine an innocent explanation for what the police observed. We disagree. People buying and selling items online, from small collectibles to hockey tickets, for example, often conduct transactions in their homes or cars or on the street. And such transactions can be extremely brief where the parties have previously agreed on price or where the transaction is conditional upon a cursory inspection by the buyer.”

The innocent explanation suggested by the Quilop court is reminiscent of a similar example also given by the Alberta Court of Appeal eight years before in R v NO, 2009 ABCA 75 where Justices Ronald L. Berger, C.D. Hunt and Jack Watson, at para. 41, suggested that “in many innocent circumstances one person may hand a small object (such as a key or an earring) to another”. The panel held that an exchange shortly after midnight did not elevate the circumstances to the necessary objective level. As Judge Alan Fradsham of the Alberta Provincial Court later observed in R v Celestin, 2013 ABPC 242, at para. 55, interactions that last for seconds or minutes, in isolated or crowded places, are all consistent with drug transactions. The net is so wide that it excludes nothing.

The weight to be given to brief meetings or hand-to-hand transactions has received the most consideration by the British Columbia Provincial Court dating back to at least R v Sandoval-Calderon, 2005 BCPC 425 where Judge Carol Baird Ellen held, at para. 37, that seven meetings did not elevate the observations beyond “mere suspicion based on experience”. The meetings were consistent with other innocent activities such as a social person meeting friends or conveying gifts. And in R v Peacock, 2008 BCPC 214 Judge C.J. Rountwaite held, at paras. 7-9, that the defendant’s arrest after two meetings where a woman briefly got into the passenger side of his car was based on hunch or intuition. (See also: R v Pope, 2015 BCSC 2391 per Gray J., at paras. 68-86, for a review of other cases)

How, then, is the subjective belief of a police officer assessed on a reasonably objective basis? While the assessment of grounds is made through the eyes of the arresting police officer, there must be a meaningful process for judicial scrutiny of the sufficiency of objective grounds. In R v Lahtinen, 2011 BCPC 490 Judge D.A. St. Pierre put it this way, at para. 24: “The court is required to determine whether the subjective belief of a police officer is objectively reasonable and that task cannot be properly accomplished by simply deferring to the opinion of a knowledgeable and experienced police officer. The danger, of course, is that the objective and subjective components become conflated.” Judge St. Pierre went on to say this, at para. 26:

“What must be remembered…is that a ‘reasonable person, standing in the shoes of a police officer’ does not mean a police officer who holds a jaundiced and overly negative view of the panoply of behaviours that humans engage in on a day to day basis. It cannot mean an officer whose observations of everyday actions are made through such a jaded lens that otherwise benign activity is precipitously characterized as criminal.”

I will leave you with one other thing. We sometimes think of the test for a warrantless arrest as being the same as the test for issuance of a search warrant. The test may be simply stated. A police officer has grounds to make an arrest, and a judicial officer has grounds to issue a search warrant, when suspicion rises to the level of credibly based probability – expressed as reasonable grounds or probable cause. But it is not that clear in a post facto suppression hearing on a Charter s. 8 review of police conduct. There is a debate in the law whether the reasonableness standard is the same for obtaining a search warrant as it is for justifying an arrest. In R v Golub (1997), 117 CCC (3d) 193 (Ont CA) the police were investigating a complaint that the defendant had a gun and was suicidal. The police arrested him outside his apartment without a warrant and without the gun. The police then searched the apartment without a warrant based on a hunch that the gun might be there. Justice David H. Doherty, writing for a unanimous court, said this, at para. 18:

“Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.”

Some hunches are more equal than others.

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