Note on Standards of Suspicion and Belief under the Charter #

The common law makes the following distinctions on standards when assessing whether police acted with authority under sections 8 and 9 of the Charter:

• ‘suspicion’ would be something merely possible, even if its probability is low;

• a ‘reasonable suspicion’ would be a reasonable possibility, or something not quite probable but more than hypothetical (SCC: Kang-Brown, Chehil);

• ‘reasonable grounds to believe’ and ‘reasonable belief’ have been held by the SCC in Debot and Baron to be synonymous with ‘reasonable and probable grounds,’ and each is a way of saying there is a reasonable probability of something¹; and

• ‘balance of probability’ means greater likelihood or ‘more likely than not.’

Notable (and helpful) dicta on the meaning of these terms: #

Justice Jamal, for majority of the SCC in Beaver (2022), held that:

Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime […] At the same time, police do not require a prima facie case for conviction before making an arrest […] Nor do the police need to establish that the offence was committed on a balance of probabilities. Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” […]. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” […]. The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest. (Citations omitted)

Justice Paciocco on reasonable grounds (from R v Lambert ONCA 2023):

A person has reasonable grounds when they believe that there is a credibly based probability that the material fact exists: Hunter v. Southam, at pp. 168-169. They must have more than a suspicion that the material fact exists, and must subjectively believe that the material fact is probable (the “subjective component”), based on information known to them that would enable a reasonable person placed in their position to be satisfied that the material fact is probable (the “objective component”): R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 48; R. v. Notaro, 2018 ONCA 449, 47 C.R. (7th) 229, at para. 39.