Cases

SCC Case Information

Summary

33031

Her Majesty the Queen v. Abede Burke

(Quebec) (Criminal) (As of Right)

Keywords

Criminal Law.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Canadian Charter - Criminal law - Arrest - Search - Exclusion of evidence - Whether trial judge’s reasoning requires peace officer to be certain or confident, rather than to have reasonable grounds to believe, that person he or she is about to arrest pursuant to s. 495(1)(c) of Criminal Code, R.S.C. 1985, c. C-46, is in fact person named in arrest warrant - In alternative, whether trial judge erred in failing to find that investigative detention of Respondent for purposes of identification was justified - Application of R. v. Mann, [2004] 3 S.C.R. 59 - Canadian Charter of Rights and Freedoms, ss. 8 and 24(2).

The Respondent was arrested while riding a bicycle. The police officer who arrested him believed him to be a person named in an arrest warrant whom he had arrested a week earlier but who had managed to flee. In reality, however, the Respondent is the brother of the individual in question, and the evidence showed that the two brothers look alike. On March 9, 2007, the Respondent was found not guilty of possession of cocaine for the purpose of trafficking. The trial judge found that the Respondent’s arrest was unlawful and, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, excluded the evidence of drugs found when he was searched. A majority of the Court of Appeal dismissed the appeal. Chamberland J.A., however, would have allowed the appeal and ordered a new trial. In his opinion, the trial judge had, in her decision, erred on a question of law in that the arrest of the Respondent without a warrant was lawful and in that, in any event, his detention for purposes of identification justified the search and would necessarily have led to the discovery and seizure of the items found on him.