POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

REASONABLE GROUNDS:
THROUGH YOUR EYES
Sgt. Mike Novakowski

There is no statutory definition for
the term "reasonable grounds to
believe". Synonymously, reasonable
grounds has been referred to as
strong reason to believe1 , credibly
based
probability2,
reasonable
probability3, reasonable belief4, reasonable and
probable cause to believe5, and the American equivalent
of probable cause6.

The Legal Standard
Reasonable grounds involves a two-limb test7. Firstly
the officer must subjectively and genuinely believe
they have reasonable grounds 8. The subjective belief
relates entirely to the "state of mind" of the police
officer when a power (search, arrest, force) is
exercised9. Although it would be a best practice for
police to state they subjectively had reasonable
grounds when testifying in court, they need not "resort
to particular words to satisfy the subjective
component”10. In the absence of a police officer

IN THIS ISSUE
Reasonable Grounds: Through Your Eyes…………..1
Hunter v. Southam (1984) 14 C.C.C. (3d) 254 (S.C.C.) at p.114.
Hunter v. Southam (1984) 14 C.C.C. (3d) 254 (S.C.C.) at p.115.
3
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Wilson at p.1166.
4
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Wilson at p.1166.
5
R. v. Proulx (1992) 76 C.C.C. (3d) 316 (Que.C.A.)
6
Hunter v. Southam (1984) 14 C.C.C. (3d) 254 (S.C.C.) at p.114.
7
See (context of a search) R. v. Belnavis [1997] 3 S.C.R. 341(S.C.C.) per Cory J. at
para. 27, (context of a breath demand) R. v. Bernshaw [1995] 1 S.C.R. 254 (S.C.C.)
per Sopinka at para. XLVIII, (context of an arrest) R. v. Storrey [1990] 1 S.C.R.
241 (S.C.C.) per Cory J. at p. 324, R. v. Feeney [1997] 2 S.C.R. 13 (S.C.C.) per
Sopinka J. at para. 29, per L'Heureux-Dube at para. 113. R. v. Latimer [1997] 1
S.C.R. 217 (S.C.C.) at para 226.R. v. Klimchuk (1991) 67 C.C.C. (3d) 385 (B.C.C.A.) per
Wood at p.406, R. v. Hall (1995) 22 O.R. (3d) 289 (Ont.C.A.), R. v. Lewis (1998) 122
C.C.C. (3d) 481 (Ont.C.A.) per Doherty J.A. at p. 493, (context of exigent
circumstances) R. v. McCormack 2000 BCCA 57 at para. 25.
8
R. v. T.A.C. [1994] B.C.J. No.1692 (B.C.C.A.) at para.19.
9
O'hara v. Chief Constable of the R.U.C. [1996] H.L.J. No. 41 (House of Lords) per
Lord Craighead.
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Volume 1 Issue 3
July 2001

expressly stating their belief, the court may conclude
there was a subjective belief on a fair reading of the
evidence, including circumstantial evidence11 , and if a
"police officer is to give an honest answer as to [their]
belief, [the court cannot], as a matter of law, … tell the
officer that the answer is wrong12".
Secondly, reasonable grounds must be objectively based.
The objective test "is whether a reasonable person,
standing in the shoes of the officer, would have believed
that [reasonable grounds] existed13". The grounds that
form the basis for the officer's subjective belief "must
be justifiable from an objective point of view"14. The
objective standard recognizes that police conduct may
be warranted only when such conduct can be subject to
detached, independent, and neutral scrutiny of a court
that must evaluate the reasonableness of the police
action in light of the particular circumstances that were
apparent to the officer. This serves to avoid and provide
a safeguard against arbitrary and indiscriminate police
action and to prevent officers from being the ultimate
judges of their own decisions15. The objective component
imposes a responsibility on the police to act with
restraint and after careful assessment 16. Intuition, for
example, cannot be equated with reasonable grounds
since there is no objective, or factual basis, upon which a
court can assess the intuition17. Any reasonable person in
possession of the same information of the officer must
be able to conclude that reasonable grounds exist18.
In applying the objective test to the reasonableness of
the officer's subjective belief, the court is not required
to look beyond what was in the mind of the officer at
the time of action19. However, the lack of a subjective
See R. v. Hall (1995) 22 O.R. (3d) 289 (Ont.C.A.).
R. v. J.R. [2000] O.J. No. 930 (Ont.Crt.J.) at para. 22.
12
R. v. Bernshaw [1995] 1 S.C.R. 254 (S.C.C.) per Sopinka J. at para. LIX.
13
See R v. Storrey [1990] 1 S.C.R. 241(S.C.C.) at p.324, R. v. G.M.R. [1994] N.S.J.
No. 566 (N.S.C.A.) at para. 39, R. v. Brown (1987) 33 C.C.C. (3d) 54 (N.S.C.A.) at
pp.65-66..
14
R. v. Latimer [1997] 1 S.C.R. 217 (S.C.C.) at para 226., see also R. v. Crossman
[1991] B.C.J. No. 729 (B.C.C.A.)
15
R. v. Perrault [1992] R.J.Q. 1848 (Que.C.A.)
16
R. v. Sundquist (2000) 145 C.C.C. (3d) 145 (Sask.C.A.) at p.158.
17
R. v. Guse (1983) 37 C.R. (3d) 339 (Ont.Co.Ct.) at p.344.
18
R. v. Proulx (1993) 81 C.C.C. (3d) 48 (Que.C.A.) at p.51.
19
O'hara v. Chief Constable of the R.U.C. [1996] H.L.J. No. 41 (House of Lords) per
Lord Craighead.
10
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belief on the part of the officer will generally suggest
the objective test has not been met "unless the officer
is to be considered to have an unreasonably high
standard20".

How Much is Enough?
The police need not demonstrate that they possessed
anything more than reasonable grounds. It is not
necessary to establish that the officer had proof
beyond a reasonable doubt or even that there was a
prima facie case for conviction21. The threshold for
reasonable grounds is significantly lower 22. However,
the degree of likelihood must transcend a reasonable
suspicion. The line between reasonable suspicion and
reasonable grounds is often a fine, grey one 23.

Piecing Together the Puzzle
The "circumstances have to be considered as a whole
and not in isolation24" nor separately or out of
context 25. The "totality of the circumstances test26"
must be applied. As stated by Belzil J.A. in R. v. Huddle
(1987) 21 M.V.R. (2d) 150 (Alta.C.A.):
[I]t is an error in law to test individual pieces of
evidence which are offered to establish the
existence of [reasonable] grounds…[T]he question
is whether the total of the evidence provided
[reasonable grounds], on an objective standard.

The foundation for establishing reasonable grounds can
be reduced to three fundamental categories; personal
observations27, information, and the officer's
experience.

See R. v. Feeney [1997] 2 S.C.R. 13 (S.C.C.) per Sopinka at para. 34.
See R. v. Storrey (1990) 53 C.C.C. (3d) 316 (S.C.C.) per Cory J. for the court at
p.324, R. v. Charlton (1992) 15 B.C.A.C. 272 (B.C.C.A.) per Cumming J., R. v. Debot
[1989] 2 S.C.R. 1140 (S.C.C.) per Lamer J., R. v. Debot (1986) 30 C.C.C. (3d) 207
(Ont. C.A.) per Martin J.A., R. v. Feeney [1997] 2 S.C.R. 13 (S.C.C.) per L'HeuereuxDube J. at para.113, R. v. Cook [1990] B.C.J. No.37 (QL) (B.C.C.A.)., R. v. Duguay
[1989] 1 S.C.R. 93 (S.C.C.) per L'Heureux-Dube J., R. v. Lam 2000 BCCA 545 at
para.46, R. v. Tunney [1990] B.C.J. No.1871 (B.C.S.C.).
22
R. v. Duguay [1989] 1 S.C.R. 93 (S.C.C.) per L'Heureux-Dube J.
23
R. v. Sundquist (2000) 145 C.C.C. (3d) 145 (Sask.C.A.) at p. 158 & p.161.
24
R. v. Johnson 1999 BCCA 622 at para. 24.
25
R. v. Ranneris [1994] B.C.J. No. 3077 (B.C.S.C.) at para 42.
26
See R. v. Cook [1990] B.C.J. No.37 (QL) (B.C.C.A.).
27
R. v. Tanguay and Rozon [2001] Docket:C35418 (Ont.C.A.)
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Personal observations are the externally manifested
stimuli that the officer considers when reaching a
subjective conclusion. These personal observations are
not restricted to visual perception but include
auditory, tactile, taste, and olfactory senses.
Information would include personal observations
relayed by other persons including colleagues 28,
information provided by an informant 29, CPIC30 queries,
information bulletins, or other sources of reliable
second hand information coming to the attention of the
officer. The law is clear that reasonable grounds may
be based on information that is hearsay 31.
Experience is not to be discounted in the formulation
of reasonable grounds for belief32. The general
category of experience may incorporate personal
experience 33, corporate experience 34 of the agency or
profession, and training35.
As well, "an arresting officer is permitted to draw
inferences 36" or reasonable assumptions 37. The officer
also need not have personal knowledge of every element
of an offence 38. Perhaps Cumming J. in R. v. Charlton
(1992) 15 B.C.A.C. 272 (B.C.C.A.) described it best when
he stated the police "are entitled to 'put two and
two together' 39".

The Doppelganger40 Test
The combination of personal observations, information,
and experience must be examined by the reasonable
person standing in the "shoes of the officer" viewing
the circumstances through the eyes of the officer
knowing what the officer knew and taking into account
See R. v. Fielding (1967) 3 C.C.C. 258 (B.C.C.A), R. v. Haglof 2000 BCCA 604 at
para.33..
29
R. v. Charlton (1992) 15 B.C.A.C. 272 (B.C.C.A.).
30
CPIC is an acronym for Canadian Police Information System. See for example R.
v. Vu 2000 BCCA 51 at para 15.
31
R. v. Brown (1987) 33 C.C.C. (3d) 54 (N.S.C.A.) at p.66., R. v. Feeney 2001 BCCA
113 at para.30.
32
See R. v. Feeney [1997] 2 S.C.R. 13 per L'Heureux-Dube at para. 124, R. v.
Jacques [1996] 3 S.C.R. 312 (S.C.C.) per Major J. at para.66, R. v. Ranneris [1994]
B.C.J. No. 3077 (B.C.S.C.) per Owen-Flood J. at para. 13, Berntt v. City of
Vancouver et al. (1999) 135 C.C.C. (3d) 353 (B.C.C.A.) per Southin J.A. at p. 361, per
McEachern C.J.B.C. at p.366, R. v. Smith (1998) 126 C.C.C. (3d) 62 (Alta.C.A.) at
p.66 and p.77.
33
R. v. C.M.G. [1996] M.J. No. 428 (Man.C.A.),
34
R v. McIntosh (1984) 29 M.V.R. 50 (B.C.C.A.)
35
R. v. Jones [1992] B.C.J. No. 231 (B.C.S.C.) per Drost J.
36
R. v. Vance (1979) 48 C.C.C. (2d) 507 (B.C.C.A.) at p.515.
37
R. v. Batty [1997] B.C.J. No. 3062 (B.C.P.C.)
38
See R. v. Vance (1979) 48 C.C.C. (2d) 507 (B.C.C.A.) at p.515.
39
See also R. v. Arason & Derosier (1992) 78 C.C.C. (3d) 1 (B.C.C.A.) per Cumming J.
at p.33.
40
doppelganger (dop·pel·gäng·er) means a stand in, clone, or a ghostly counterpart
of a living person.
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the officers experience, training and understanding at
the time 41. It is the police officer's own account of the
information which the officer had at the time which is
material, not what is known or observed by someone
else42. In the case of an arrest, Ryan J. in R. v. Daggit
[1991] B.C.J. No. 3210 (B.C.S.C.) described the test as
"whether the circumstances that the peace officer
believes to be true are such that would give rise in the
mind of a reasonable person in the likelihood that the
accused has committed the offence 43".
Reasonable grounds "does not require that the grounds
be made up of evidence that can later be adduced in a
court room44". Evidence that may otherwise be
inadmissible at a trial for various reasons, may be used
by the officer in forming reasonable grounds 45. For
example, evidence of prior criminal misconduct is
generally excluded at trial on policy grounds (the
prejudicial effect outweighs its probative value).
However, this policy has no application to the analysis
of whether or not reasonable grounds existed for an
arrest or a search46.
In assessing the reasonableness of police conduct, the
test is not, if at the end of the day the officer turns
out to be "wrong" as to their belief, but whether the
officer lacked reason for their belief. It is the facts,
known to the officer who exercised the power, to
which the mind of the independent observer must be
applied. The question therefore posed by a judge may
be either 47:
Ø

Would I, being in the police officers position,
having the police officers training, experience, and
responsibility, think: Was the police officers
action wrong, unnecessary, and lacking in
reason? (an affirmative response suggests
reasonable grounds for belief do not exist) or

Ø

Would I, being in the police officers position,
having the police officers training, experience, and

responsibility, think: I would do it too or I
wouldn't do it, but the officer's doing is not
lacking in reason? (an affirmative response
suggests reasonable grounds for belief do exist).

Applying the Standard
It has been recognized that police officers have a very
heavy responsibility under the law and "may have to
decide in a moments notice points that have engaged
the attention of our Courts on many occasions and have
caused great perplexity even to learned judges sitting
in Appellate Tribunals48". Precisely when reasonable
grounds “is reached is open to some debate" however, a
"police officer seeking to apply [the reasonable
grounds] standard should not be held to the strict
exactitude of a lawyer, or justice swearing out a
warrant"49. Although the law does not expect the same
enquiry of a police officer that it demands of a justice,
"the law does require some meaningful inquiry by the
police"50.

Accuracy v. Reasonableness: Hindsight is
20/20
An assessment of police conduct is based on the
reasonableness of what occurred up and until the point
of the core transaction (ie. the moment of search,
arrest, force) 51. A fact that "arose or came to light
subsequent to the formation of the belief is not
relevant in determining whether the police officer had
[reasonable grounds] for [their] belief at the time" the
belief was formed 52. An ex post facto (after the fact)
analysis, or "doctrine of relation back53", is not the
appropriate approach in determining whether a police
action was lawful. The proper analysis governing the
conduct of police officers must focus at the starting
point, the point of inception, not at the end result and
reason backwards. As stated by McClung J.A. in R. v.
Musurichan (1990) 56 C.C.C. (3d) 570 (Alta.C.A.) 54:

Kennedy v. Tomlinson et al. (1959) 126 C.C.C. 75 (Ont.C.A.) 48 leave to appeal to
S.C.C. refused 20 D.L.R. (2d) 273 (S.C.C.) per Schroeder J.A. for the Court at
p.211.
49
R. v. Feeney [1997] 2 S.C.R. 13 per L'Heureux-Dube at para. 122, see also R. v.
Golub (1997) 117 CCC (3d) 193 (Ont.C.A.) appeal to Supreme Court of Canada
discontinued [1997] S.C.C.A. No. 1571.
50
R. v. Peters [1998] B.C.J. No.156 (B.C.S.C.)
51
Provided an officer does not exceed the intensity or scope of the interaction
authorized by law.
52
See for example R. v. McClelland (1995) 98 C.C.C. (3d) 509 (Alta.C.A.), R. v. Vivian
2000 ABPC 137 at para. 22, R. v. Lulu [1991] B.C.J. No.2491 (B.C.S.C.).
53
See R. v. Vance (1979) 48 C.C.C. (2d) 507 (B.C.C.A.) at p.514.
54
The issue in this case was whether the officer had the requisite reasonable
grounds to demand a breath sample.
48

For example see R. v. Kissen [1978] A.J. No. 266 (Alta.Dist.Crt.)
42
O'hara v. Chief Constable of the R.U.C. [1996] H.L.J. No. 41 (House of Lords) per
Lord Craighead.
43
The court was tasked with finding whether reasonable grounds existed for a
breath demand.
44
See R. v Duguay, Murphy, and Sevigny (1985) 18 C.C.C. (3d) 289 (Ont.C.A.)
affirmed[1989] 1 S.C.R. 93 (S.C.C.) per Zuber J.A. in dissent at p.302, R. v. C.M.G.
[1996] M.J. No. 428 (Man.C.A.) at para. 39.
45
See for example R. v. Vu 2000 BCCA 51 at para 15, R. v. Kissen [1978] A.J. No.
266 (Alta.Dist.Crt.)
46
R. v. Debot (1986) 30 C.C.C. (3d) 207 (Ont. C.A.) affirmed R. v. Debot [1989] 2
S.C.R. 1140 (S.C.C.) at p.220-221.
47
See comments of Southin J.A. at p.363, and McEachern C.J.B.C. at p.366.
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The important fact is not whether the peace
officer's belief…was accurate or not, it is whether
it was reasonable. That it was drawn from hearsay,
incomplete sources, or that it contains assumptions,
will not result in its legal rejection by resort to
facts which emerged later. What must be measured
are the facts as understood by the peace officer
when the belief was formed.

An unexpected result does not solely defeat the
legality of police conduct 55. In law, it is not the
accuracy of the belief or whether the belief was
"right", a term erroneously used to mean reasonable56,
but the reasonableness of the belief itself57. Society
does not, and cannot while at the same time recognizing
reality, demand perfection. The analysis will end with
the state/citizen encounter, not with its results, and
begin with a "whole picture" analysis. An inaccurate
result will not retroactively render a reasonable search
at inception unreasonable.

Portability: Relying on the Grounds
of Another Officer
It is not uncommon in police work for a police officer
to rely on the information, request, or direction of
another police officer. A police officer who takes
action is entitled to rely on the belief of another police
officer provided the other officer's belief met the
requirements of reasonable grounds (subjective/
objective analysis)58. For example, it is not necessary
that the police officer, effecting the arrest or
undertaking a search, to "obtain from [the other
officer] sufficient information about the underlying
facts to enable…an independent judgement that there
are reasonable grounds upon which to arrest or search
the suspect 59". The officer who conducted the police
action "is entitled to assume the officer who ordered
[it] had reasonable grounds for doing so60". However,
relying on this assumption does not prove reasonable
grounds in fact existed. It will be the other officer
who requested or ordered the action to justify the
requisite grounds for their belief.

R. v. Mulligan [2000] O.J. No. 59 (Ont. C.A.)
See Berntt v. City of Vancouver et al. (1999) 135 C.C.C. (3d) 353 (B.C.C.A.) per
Southin J.A. at p. 362.
57
See R. v. Musurichan (1990) 56 C.C.C. (3d) 570 (Alta.C.A.)
58
R. v. Venzi [1997] B.C.J. No. 3019 (QL) (B.C.S.C.), R. v. Laurier [1997] B.C.J.
No.276 (B.C.C.A.), R. v. Lam 2000 BCCA 545 at para.46.
59
R. v. Debot (1986) 30 C.C.C. (3d) 207 (Ont.C.A.) affirmed (1989) 52 C.C.C. (3d)
193 (S.C.C.) per Martin J.A.
60
R. v. Debot [1989] 2 S.C.R. 1140 per Lamer J.
55
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Volume 1 Issue 3
July 2001

Summary
The actions of police officers are often made at a
moment’s notice. Officers are required in many cases
to receive, process, and react to sensory observations
and information in an instant with no second opinion, no
appellant process, and no judicial review. Undoubtedly
the action chosen by officers will be subject to
critique. This review may be made by a supervisor, a
court, a board of enquiry, the media, the general public,
or the officers themselves who, in hindsight, may be
critical of their actions.
However, it is important to recognize that the
foundation on which the officer acts, their reasonable
grounds, is not to be assessed by the accuracy or
outcome of the belief, but the reasonableness of the
belief itself from the point of inception. Facts that
arise after the requisite grounds have been met do not
invalidate the initial grounds nor render the action by
the police unlawful. The grounds upon which the officer
acted are not to be examined in a "vacuum", although
there may be attempts by review authorities to "arm
chair quarterback" the officer's conduct in the
comfort of a controlled environment and with an
inordinate amount of time at their disposal. In fact,
they may reserve judgement for a later day, a luxury
the officer cannot afford. The proper test is "through
the officer's eyes" based on the totality of the
circumstances. The officer's perception of the stimuli
presented and their understanding and apprehension of
the unfolding events, through their experience and
training, is critical to the analysis. It is of utmost
importance the officer understand the concept of
reasonable grounds, their authorities in law, and their
corresponding responsibilities. In detailing the proper
foundation for their belief, the officer must
convincingly "paint a picture" for the critic who, at the
end of the day, will intuitively state to themselves: I
would have done the same thing if I was in that
officer's shoes.
For comments or topics you would like
to see published in this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca

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