Supplementary to the Authorities page, this post will focus on case law concerning reasonable grounds.  In other words, it will provide a reliable measuring stick when exploring whether or not law enforcement agencies had listened to and responded to your complaint in good faith.  In reviewing capacities, the same tests can be applied to police regulators, courts, professional standards offices, and overarching entities such as police boards and associations.

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The Constitution Act, 1982;

“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: [7] Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Policing Mandate

The most basic standard concerning police duties is cited in R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5 at paragraph 35;

“There is no question that police officers have a duty to enforce the law and investigate crimes.  The principle that the police have a duty to enforce the criminal law is well established at common law: R. v. Metropolitan Police Commissioner, [1968] 1 All E.R. 763 (C.A.), per Lord Denning, M.R., at p. 769; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.), per Lord Keith of Kinkel; P. Ceyssens, Legal Aspects of Policing (loose‑leaf ed.), vol. 1, at pp. 2‑22 et seq.”

McLachlin C.J. states the same in Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41 (“Hill”) at paragraph 1;

 

“The police must investigate crime.  That is their duty.  In the vast majority of cases, they carry out this duty with diligence and care. Occasionally, however, mistakes are made.  These mistakes may have drastic consequences.”
 

How should the policing mandate be construed?  An exceptionally low threshold is applied, as is cited in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656 (“Barclay”).  Juriansz J.A. states at paragraph 51;
 

“The function of police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor: Wong, at para. 56. Although this requires, to some extent, the weighing of evidence in the course of investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defense lawyers and judges: Hill, at para. 50.”

 

Paragraphs 44 and 140 in Hill further underscore responsibility and the public interest of reasonable and diligent police responses;

“The effective and responsible investigation of crime is one of the basic duties of the state, which cannot be abdicated.  [...]  The enforcement of the criminal law is one of the most important aspects of the maintenance of law and order in a free society.  Police officers are the main actors who have been entrusted to fulfill this important function.”

Paragraph 36 in Hill per McLachlin C.J. accentuates the compelling public interest in addressing and preventing police negligence;
 

"The personal interest of the suspect in the conduct of the investigation is enhanced by a public interest.  Recognizing an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism.  The unfortunate reality is that negligent policing has now been recognized as a significant contributing factor to wrongful convictions in Canada.  While the vast majority of police officers perform their duties carefully and reasonably, the record shows that wrongful convictions traceable to faulty police investigations occur.  Even one wrongful conviction is too many, and Canada has had more than one.  Police conduct that is not malicious, not deliberate, but merely fails to comply with standards of reasonableness can be a significant cause of wrongful convictions. (See the Honourable Peter Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at p. 10 (“Cory Report”); the Right Honourable Antonio Lamer, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), at p. 71; Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscarriages of Justice (2004); the Honourable Fred Kaufman, The Commission on Proceedings Involving Guy Paul Morin: Report  (1998), at pp. 25-26, 30-31, 34-36, 1095-96, 1098-99, 1101 and 1124.)"  
 

Reasonable Grounds - Definition & Test

With respect to defining reasonable grounds, the SCC clarified a unified definition.  Per Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 RCS 416 at page 447;

“As Wilson J. said in R. v. Debot, (…) the standard to be met in order to establish reasonable grounds for a search is “reasonable probability.”  It appears that the normal statutory phrase in Canada is “reasonable grounds,” and that some of the remaining exceptions requiring “reasonable and probable grounds” may have been amended in recent years, one imagines for the sake of uniformity, by deleting the words “and probable”.”

Reasonable grounds for belief is distinguished from reasonable suspicion, as outlined in R. v. Phung, 2013 ABCA 63.  Cases with reasonable grounds require more evidence to prove, but involve enough substance to tap the police mandate.  Per Paperny J.A. at paragraph 10;

“As for what “reasonable grounds” itself means, the standard was first described in Hunter v Southam, 1984 CanLII 33 (SCC), [1984] 2 SCR 145, 14 CCC (3d) 97 at 114-115 as “the point where credibly-based probability replaces suspicion”.  It has since been characterized in terms of “reasonable probability”: R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140 at 1166, 52 CCC (3d) 193.  This is a standard higher than a reasonable suspicion but less than a prima facie case: R v Shinkewski, 2012 SKCA 63 at para 13, [2012] 9 WWR 674.”

The SCC articulated specific parameters for reasonable grounds in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 RCS 100, 2005 SCC 40 at paragraph 114;

“The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minster of Employment and Immigration), 1993 CanLII 3012 (FCA), [1994] 1 F.C. 433 (C.A.), p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16793 (FCA), [2001] 2 C.F. 297 (C.A.), at para. 60.  In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16300 (FC), [2000] A.C.F. no. 1615 (1st inst.).”

The same test was reiterated in Gordillo v. Canada (Attorney General), 2022 FCA 23 at paragraph 112;

“The “reason to believe” standard the provision sets out is similar to the standard found in other statutes.  For example, as the Federal Court observed in Agnaou v. Canada (Attorney General), 2017 FC 338 at para. 8, it is similar to the “reasonable grounds to believe” standard found in paragraph 19(1)(j) of the former Immigration Act, RSC 1985, c I2.  The Supreme Court held in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114, that that standard “requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities” and that “[i]n essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.”

Standards in Determining an Objective Basis

Precedents are established concerning the establishment of an objective basis.  First, the grounds must be objectively reasonable.  As a guardrail, Sittampalam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1211 relied on a standard of reasonable public scrutiny.  In other words, the opinions of a police officer or investigator should align with the unbiased opinions of a reasonably informed public.  Per Hughes J. at paragraph 11;

“The existence of reasonable grounds must be established objectively, that is, that a reasonable person in placed in the same circumstances would have believed that reasonable grounds existed, in the case of an arrest, to make the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 R.C.S. 241, at page 250”

An epistemology of coherence was accepted as a means for determining an objective basis in R. v. Harding, 2010 ABCA 180.  In other words, in cases where a series of facts exist that may cohere, or could potentially be related.  Slatter J.A. held at paragraph 10 alongside his panel;
 

“The trial judge held at R. v. Harding, 2008 ABQB 761, that there were reasonable grounds for the warrantless arrest.  The trial judge held that Sgt. Topham had experience in enforcing drug laws, the vehicle had British Columbia plates (a province notorious for drug production), two large bags were seen in the back of the vehicle, the officer smelled a strong odour of raw marijuana, and the vehicle was a rental car (commonly used in the drug trade to avoid identification and detection).  The cumulative effect of all these circumstances was sufficient to provide the objective basis for the arrest which then ensued.  Sgt. Topham’s subjective belief in his grounds for arrest was clearly established and was objectively seen and established under the circumstances.”

The SCC in R. v. Kahsai, 2023 SCC 20 at paragraph 67, citing R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2nd) 222, at paragraph 89, held that scandals are predominantly ascertained by way of appearance, as deduced by reasonable and objective persons having insight into their context.  The test does not require that the observers require any legal training; only that the observers be objective, rational, and informed of the circumstances.

“A Standard Lower Than a Balance of Probabilities” - Civil Standards & Inference Criteria

In civil matters, the SCC has outlined test criteria concerning the formation of reasonable inferences in Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101.  Per the Chief Justice at paragraph 76;

“A sufficient causal connection standard is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21.” 

The same standard is further articulated in the high profile matter of Sherman Estate v. Donovan, 2021 SCC 25 at paragraphs 97-98, whereas an actionable inference need not be shown to be likely, but must be more than negligible, fanciful, or speculative;

“This Court has held that it is possible to identify objectively discernible harm on the basis of logical inferences (Bragg, at paras. 15‑16).  But this process of inferential reasoning is not a license to engage in impermissible speculation. An inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation (R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 45) [...] Where the feared harm is particularly serious, the probability that this harm materialize need not be shown to be likely, but must still be more than negligible, fanciful or speculative.”

Per the case law cited in the foregoing pages, the inference standard is in fact lower for officers of the peace when determining reasonable grounds in response to Citizen complaints (Gordillo v. Canada (Attorney General), Supra).

Reasonable Grounds in Practice

The concept of reasonable grounds to believe, as a basis to initiate a police response, does not require that the apprehended fact be proved or established.  It might further be argued that the decision-maker had made reasonable errors regarding the actual existence of a fact or in their apprehension of the situation.  What matters is that the person had, at the time of the action, reasonable grounds to believe that the situation existed.  Per R. v. Loewen, 2010 ABCA 255 at paragraph 32;

“To establish objectively reasonable grounds, the Crown needed only to show that it was objectively reasonable to believe that an offence was being committed, not that it was probable or certain.”

Likewise in R. v. Tim, 2022 SCC 12, paragraph 24; “The police are not required to have a prima facie case for conviction before making an arrest.”

McLachlin C.J. promulgates this exceptionally low threshold for the determination of probable grounds in Hill v. Hamilton‑Wentworth Regional Police Services Board, Supra, at paragraph 58, reiterating the onus of police to uncover evidence through the process of investigation;

"The lack of evidence of a chilling effect despite numerous studies is sufficient to dispose of the suggestion that recognition of a tort duty would motivate prudent officers not to proceed with investigations “except in cases where the evidence is overwhelming” (Charron J., at para. 152).  This lack of evidence should not surprise us,  given the nature of the tort.  All the tort of negligent investigation requires is that the police act reasonably in the circumstances.  It is reasonable for a police officer to investigate in the absence of overwhelming evidence — indeed evidence usually becomes overwhelming only by the process of investigation.  Police officers can investigate on whatever basis and in whatever circumstances they choose, provided they act reasonably.  The police need not let all but clearly impaired drivers go to avoid the risk of litigation, as my colleague suggests.  They need only act reasonably.  They may arrest or demand a breath sample if they have reasonable and probable grounds.  And where such grounds are absent, they may have recourse to statutorily authorized roadside tests and screening."

Juriansz J.A. reiterates the same principle at paragraph 52 in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, Supra;
 

“Nor is a police officer required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defense before being able to form reasonable and probable grounds: Kellman v. Iverson, 2012 ONSC 3244 (CanLII), [2012] O.J. No. 2529, at para. 16; Wong, at para. 59.”

As it pertains to this scandal and its interrelated components, and notwithstanding the fact that many of the aspects of the scandal I have been beset by are demonstrated in prima facie capacities, the account of Sgt. Topham in R. v. Harding, Supra, presents a comparable analogue with respect to the determination of reasonable grounds.
 

Standards for Judicial Review

Judicial reviews pertaining to harmful acts of negligence by police agencies are considered at the minimum recognizable standards.  In R. v. Araujo, 2000 SCC 65, [2000] 2 RCS 992 at paragraph 29;
 

“The authorizing judge must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard.”

A reasonable suspicion standard is set for judicial reviews of police conduct.  The matter of R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577 concerns acts of commission, but the same principle applies with respect to violations of the police code concerning negligence, which would likewise infringe upon a Citizen’s rights under the Charter.  Per the Karakatsanis panel at paragraph 24;

“In every context, the reasonable suspicion standard ensures courts can conduct meaningful    judicial review of what the police knew at the time the opportunity was provided (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26 and 58; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 41).  This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location (K. Roach, “Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches” (2011), 80 Miss. L.J. 1455, at pp. 1472-73; Ashworth, at pp. 304-5).  An objective standard like reasonable suspicion allows for exacting curial scrutiny of police conduct for conformance to the Canadian Charter of Rights and Freedoms and society’s sense of decency, justice, and fair play because it requires objectively discernible facts. As is the case with warrantless searches, “the trial judge [must be] . . . in a position to ascertain [these objective facts], and not bound by the personal conclusions of the officer who conducted the [investigation]” (P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 126 (emphasis added)).  This is essential to upholding the rule of law and preventing the state from arbitrarily infringing individuals’ privacy interests and personal freedoms (Chehil, at para. 45).”

The panel reiterates the public interest at paragraph 25;

“Doherty J.A., in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at pp. 502-3, makes the point compellingly: a reasonable suspicion standard is necessary where there is the fundamental need to balance society’s interest in the detection and punishment of crime with its interest in maintaining individual freedoms.”

Further concerning the standards of review, the SCC articulates the need for diligence and caution in matters of grave impact.  Per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at paragraph 133;

“It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25."

This diligence is underscored in R. v. Araujo, 2000 SCC 65 (CanLII), [2000] 2 RCS 992 at paragraph 29;
 

“The authorizing judge must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard.”

Unreasonable Concurrence is No Defense
 

Further to the case law in Sittampalam v. Canada (Minister of Citizenship and Immigration), Supra, a consensus among peace officers, should it nonetheless fail objective tests concerning reasonableness and fail to withstand public scrutiny, is no adequate defense in a judicial review.  The SCC held in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509 at paragraph 24;
 

“The integrity of the justice system was further tarnished, in the judge’s view, by the reticence and [translation] “sclerotic solidarity” that characterized the testimony at trial of Mr. Asselin’s fellow prison guards (para. 79).”

The same example is compelling by way of the characteristics of the scandal detailed on this website.  At paragraph 25 in Bellusci;

“Having found that Mr. Bellusci had been provoked and subjected by a state actor to intolerable physical and psychological abuse, it was open to the trial judge to decline to enter a conviction against him.  As the Court explained in Tobiass, “if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings” (para. 96).”​​