Officers Relying on Previous Experience in Warrantless Arrests

Deandre Palmer, 2025 ONSC 5995

In the early hours of October 6, 2024, police officers drove into the parking lot of a strip club in Brampton and approached a group of men standing outside. Following a conversation with the accused and another individual, a struggle ensued between the police and the accused as he tried to run away.

Police searched the accused’s satchel and located a firearm. The accused was subsequently charged with firearm related offences. Following evidence elicited at a preliminary inquiry, the accused argued that police lacked objective grounds to perform an arrest and search and instead were performing “shakedowns” of racialized men in the vicinity of strip clubs. Ultimately, the accused was successful in excluding the firearm from evidence.

While the arresting officers testified that they had 45 seconds to a minute to observe the accused before reasonable grounds were formed and a decision to arrest was made, critical video surveillance showed the time between the officers entering the parking lot and arriving at the group of men, who were about 100 feet away, was only about ten seconds.

The Court agreed that ten seconds to observe is “very different” from one minute – the latter, a “relatively short span of time”, and the former, “barely a glimpse”. The Court further noted that because officers were inside the vehicle, the ability to observe at nighttime when the scene was only illuminated by artificial light was poor.

Subjective and Objective Grounds

To make an arrest without a warrant, officers must have reasonable subjective and objective grounds that a person is committing a criminal offence. In this case, the officers used their previous experience in dealing with crime around nightclubs to justify their arrest. Specifically, they relied on the following:

• the officers could not see the accused’s face and concluded he was trying to conceal his identity by wearing a medical mask and wearing a hoodie. The Court did not accept this explanation, given the ubiquity of medical masks since COVID 19 and reasoning that hoodies are more of a fashion statement than a means of concealment;
• the officers stated the accused carried a satchel over his shoulder and kept it close to the body for easy access to firearms. Similarly, the Court did not accept this explanation, stating that, “obviously”, the fact that someone is wearing a satchel cannot, in and of itself, be sufficient grounds to search a person;
• the officers stated that strip clubs are rife with criminal activity, but the Court found this explanation too general to have any weight towards the reasonable grounds analysis;
• the officers testified the accused and another individual were continually looking around in a suspicious manner but video surveillance showed this to be false; and
• the officers testified that the other individual shouted “police” upon their arrival, but the Court was also doubtful of this occurring on the available evidence.

The Court found that the above observations fell “manifestly short” of reasonable grounds to believe there was contraband in the satchels, let alone firearms, as each could apply broadly to innocent people. The Court observed that, if the officers had believed firearms were present, they would have immediately apprehended the men instead of engaging in a conversation.

Having regard to the above, and in addition to other observations of prior searches of other individuals, the Court was critical of the officers’ conduct and on balance, the firearm was excluded for unlawful detention contrary to section 9 of the Charter, and unreasonable search and seizure contrary to section 8 of the Charter.

R v. Francois, 2025 MBCA 93

On September 28, 2023, in downtown Winnipeg, two officers were in uniform when they observed the accused, previously known to police, standing in the back lane behind an apartment building in a high crime area. The accused was bent over a purple BMX-style bicycle, operating a cordless angle grinder power tool, which caught the attention of the officers. The accused is Indigenous, although at no point was his race a part of any of the conversations between him and police.

As the officers drove closer, the accused was in the process of putting the grinder back into his backpack and was speaking with two individuals who had just exited the apartment. The officers announced their presence and one officer, Cst. Keith, approached the accused and announced that he was investigating him for bike theft. Cst. Keith also asked to see the accused’s hands as he had just put something in his backpack. As an avid biker who had personally operated trick bicycles, Cst. Keith saw that the bicycle was undamaged, with front brakes removed, which he understood to be common to allow an operator to do tricks.

Cst. Keith had a brief, polite conversation with the accused, observing that the accused’s comments about the bicycle did not accord with its typical use and value, and believed he was stealing or had stolen the bicycle. As the accused began to slowly walk away, Cst. Keith placed the accused under arrest based on his conversation with him about the bicycle.

After approximately fifteen minutes of computer searching, Cst. Keith realized that the accused had given the identity of his brother, and that he had three outstanding arrest warrants. During the computer searches, the accused’s backpack was searched, and a firearm was discovered along with ammunition and the grinder.

At trial, the accused argued that he was arbitrarily detained and was subject to unreasonable search and seizure. The trial judge found the motivation of officers was not racial profiling and accepted that Cst. Keith’s life experience regarding bicycles allowed him to form an opinion that the accused’s possession of the bicycle raised suspicions meriting investigation. The accused was convicted of seven offences.

Psychological Detention

On appeal, the accused argued that he was psychologically detained and that Cst. Keith had singled him out due to his race. Psychological detention can arise when someone is legally required to comply with a direction or demand in the absence of a legal requirement, because a reasonable person in the subject’s position would feel so obligated.

Determining whether an individual is psychologically detained involves a contextual qualitative analysis in a three-part test, including (1) examining the circumstances giving rise to the encounter as they would be reasonably perceived by the individual, (2) the nature of the police conduct, and (3) the personal circumstances of the accused. This is relevant to determining when the accused’s section 9 and 10 Charter rights trigger, and when police are required to have reasonable and probable grounds to arrest and lawfully conduct a warrantless search.

The Court of Appeal acknowledged that there were factors to support a finding of detention at the beginning of the encounter. The Court noted that, while focused suspicion (calling out an investigation into bicycle theft, asking to see his hands and asking questions about the bicycle) may not automatically trigger a detention, the circumstances in this case, including that the accused is Indigenous, were such that the accused did not believe he was free to walk away or decline to answer questions.

On the other hand, the Court also observed that the conduct of the officers was professional, there was no physical contact or aggressive activity, the encounter was in a public place, and the officers did not take any steps to make the accused’s departure impractical. Further, apart from race, there was no personal vulnerability that would bear on the dynamics of the encounter as he was described as mature and large in stature. Ultimately, while a “close case”, the Court agreed with the trial judge, and found there was no psychological detention at the beginning of the encounter and that sections 9 and 10 of the Charter were not engaged until the accused walked away from the officers and was placed under arrest.

Warrantless Search

The accused also argued the officers lacked objective grounds to arrest the accused to justify the warrantless search. At trial, the judge relied on six factors to satisfy herself that the officers objectively had reasonable grounds to effect the arrest:

1. that 8:30 am was an unusual time to be operating a grinder outside;
2. the grinder was being used in a high crime area in a manner suggestive of attempting to conceal what was being done;
3. using a grinder on a perfectly good bike;
4. the primary use of the bicycle being for tricks at a park, rather than transportation as the accused had stated;
5. the value of the bicycle, as stated by the accused, did not accord with the officer’s knowledge of bicycles; and
6. the accused beginning to walk away after officers questioned him about the bicycles, suggesting he was not being truthful.

The Court found that a reasonable person with Cst. Keith’s knowledge and experience would find the accused’s use of the grinder illogical and suspicious, and by asking relevant questions, Cst. Keith received information that made the accused’s possession of the bicycle even more suspicious. Cumulatively, the evidence provided an objective basis that the accused had stolen or was in the process of stealing the bike. On balance, the firearms-related derivative evidence was accepted, and the convictions were upheld.

Conclusion

In these cases, the officers leaned heavily on their previous experience in vouching for the persuasiveness of the grounds in which they arrested the accused, with differing results.

In Deandre Palmer, officers knew that criminals often concealed their identifies by masking themselves and wearing hoodies, and that they often carried satchels to conceal firearms, and were ultimately correct in their theory. Despite this, the Court found that the nature of these observations was ordinary, held no significant probative value, and even cumulatively, did not justify a warrantless arrest.

In Francois, Cst. Keith relied on his previous experience and knowledge of bicycles but did not rush into an arrest. He politely asked relevant, probative questions to solidify his reasonable suspicion which led to the discovery of significant evidence on more serious charges than what was initially anticipated.

These cases are a reminder for officers to be mindful when relying on previous experience, and to ensure they form objectively reasonable grounds before moving to a warrantless arrest or risk exclusion of evidence.

If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.