R. v. Marges 2012 YKTC 102 – this case out of the Yukon discussed several issues that should be of interest to both police cadets and experienced officers in regards to a warrant of arrest. The testimony leading up to the vehicle stop will not be discussed in this post, but suffice it to say that the Judge found that the vehicle stop itself was lawful. Following the vehicle stop, the officer asked the driver, Mr. Marges, for his driver’s license and the vehicle registration and these were provided to him. The officer could smell liquor in the vehicle and Mr. Marges stated that he had consumed three beers. Thus, the officer formed the opinion that he had grounds to make the approved screening device (“ASD”) demand. As he did not have an ASD with him, the officer did not make the demand at that time. The officer asked dispatch to query Mr. Marges’ driver’s license and within a minute, this information was provided to the officer. In addition, dispatch told the officer that Mr. Marges had an outstanding warrant for his arrest in Saskatchewan on a charge of possession for the purpose of trafficking and that Mr. Marges was also on a Recognizance out of Saskatchewan, with several terms, including that he stay within 100 km of his residence in Newfoundland, that he abide by a curfew between 11:00 p.m. and 7:00 a.m., and that he abstain from the use of alcohol.
The officer testified that he asked dispatch to contact the RCMP in Saskatchewan and find out whether they wished to have the warrant “extended”. Dispatch told the officer that the warrant indicated that it was radius Saskatchewan only, and CPIC contained no further information. Dispatch contacted the RCMP in Saskatchewan to enquire further into their intentions, and the result was they did not wish to “extend” their warrant. The officer asked Mr. Marges about the outstanding warrant for his arrest out of Saskatchewan and Mr. Marges stated that it was for having weed in his possession about three years before. Subsequent to this, the ASD had arrived, so the officer gave Mr. Marges the ASD demand and administered the ASD. This occurred approximately 21 minutes following the initial vehicle stop. A “Warn” reading was indicated, so the officer advised Mr. Marges that his driver’s license would be suspended for 24 hours and the vehicle would be impounded. The officer asked that Mr. Marges and the two passengers wait outside the vehicle while he completed the paperwork for the suspension and the impoundment. Mr. Marges believed that he was being detained at this time only for the purposes of waiting until the ASD-related paperwork was completed. While the officer was doing the paperwork for the suspension and the impoundment, he received a further call from dispatch indicating that the Saskatchewan RCMP had changed their minds and now wanted to have Mr. Marges arrested and held overnight. This information came about approximately 27 minutes after the initial vehicle stop.
The officer testified that he believed that he had grounds to arrest Mr. Marges based upon the information about the warrant relayed to him by dispatch after the contact with the Saskatchewan RCMP. He stated that he believed that the warrant to arrest Mr. Marges was in effect in the Yukon and that he had the jurisdiction to arrest and hold Mr. Marges on it. The officer provided Mr. Marges his right to counsel and police caution, and Mr. Marges stated that he would like to speak to a lawyer. During the drive back to the holding cell, the officer asked Mr. Marges some questions regarding the circumstances of the warrant and Mr. Marges told him it was in regard to 20 lbs of marihuana. Once back in the holding cells, the officer conducted a more thorough pat-down search of Mr. Marges and found three marihuana joints, 1 oz of cocaine in Mr. Marges’ jacket pocket, half an ounce of MDMA, a marihuana grinder, a cell phone, and $195.00 in cash. Mr. Marges told the officer that the jacket was not his.
Counsel for Mr. Marges argued that he was arbitrarily detained. The first prong of the argument was that there was a 15 – 21 minute delay between the time that the officer formed the suspicion Mr. Marges was operating a motor vehicle after consuming alcohol, and the demand being made. Mr. Marges was not free to leave the scene and was not told why he was being kept there. Section 254 of the Code requires that the ASD demand be made forthwith after a police officer has a reasonable suspicion that the operator of a motor vehicle has alcohol in his blood and a failure to comply with the forthwith requirement constituted an arbitrary detention. Defence counsel also argued that his arrest on an unendorsed warrant from Saskatchewan was unlawful as it was not in force within the Yukon and none of the grounds for a warrantless arrest set out in s. 495 of the Code were applicable. At most, defence counsel argued that the officer had the basis for an investigative detention of Mr. Marges while he took further steps to obtain additional information regarding the basis for the warrant and whether the Saskatchewan RCMP in fact intended to take the required steps to execute the warrant in the Yukon.
Crown counsel, on the other hand, submitted that the arrest of Mr. Marges was lawful, citing the provisions of s. 503 of the Code in support of this position, stating that it is implicit in this section that there is a power of arrest. In the alternative, Crown counsel submitted that the provisions of s. 495 authorized the arrest of Mr. Marges.
Defence counsel also submitted that the search of Mr. Marges in which the drugs were found was unlawful as it flowed directly from his unlawful arrest, and that that his s. 10(a) and (b) Charter rights were breached because he was not promptly informed of the reasons for his detention and he was not informed of the right to speak to legal counsel and/or provided the opportunity to do so without delay.
According to the Judge, with respect to the impaired driving investigation, it is clear in law that s. 254 of the Code requires that both the demand and the provision of the sample be made forthwith upon the officer forming the suspicion that the operator of a motor vehicle has alcohol in his system. While a delay in either making the demand or in administering the ASD may be justified, it must be reasonably necessary in the circumstances. In the present case, the primary reason for the initial delay in making the demand was the fact that the officer did not have an ASD in his police cruiser. After the ASD arrived, the subsequent delay in making the demand and administering the ASD was due primarily to the officer making inquiries into the Saskatchewan warrant. While there is an understandable pragmatic reason for this delay, said the Judge, the correct approach, at a minimum, would have been to comply with the forthwith requirements of s. 254(2) of the Code as soon as the other officer arrived with the ASD and not wait another 6 – 16 minutes before making the breath demand and obtaining the sample. Alternatively, as Mr. Marges was in possession of a cell phone, the officer could have made the demand at the outset of the investigative detention and then provided him the opportunity to contact counsel during the delay.
The Judge ruled that Mr. Marges should have been provided the ASD demand as soon as the officer had the grounds for making the demand as it is better that any delay arising out of not having the ASD immediately available occur between the giving of the demand and the taking of the breath sample than prior to the giving of the demand. The reason is that the detained person is made aware of the reason for his or her detention early in the investigation and then can make an informed decision about whether they wish to contact counsel while waiting. This right to contact counsel can be triggered when delay occurs, depending on the circumstances in which the delay occurs, said the Judge. Accordingly, the Judge found that the requirements of s. 254(2) were not complied with and constituted breaches of Mr. Marges s. 8 and s. 9 Charter rights. As well, Mr. Marges’ s. 10(a) and 10(b) rights were breached in the course of the investigation because Mr. Marges should have been advised of the reason for his detention and of his right to contact counsel. He also should have been provided a number for duty counsel. He had a cell phone, and this call could readily have been made from the roadside while the officer was waiting for the ASD and completing other inquiries.
As well, the Judge found that there was a third distinct breach of Mr. Marges’ s. 10(b) right to counsel, which occurred after his arrest. Although at the time of arrest, the officer properly advised Mr. Marges of his right to retain and instruct counsel and was going to facilitate that contact once they had arrived at the holding cells, he did not hold off questioning Mr. Marges between the time of his arrest and the time he was able to speak to counsel. This was a clear breach of Mr. Marges’ s. 10(b) right said the Judge.
On the arrest with the warrant analysis, the Judge said once a warrant is issued, s. 514 of the Code sets out how it may be executed:
(1) A warrant in accordance with this Part may be executed by arresting the accused
(a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or
(b) wherever he is found in Canada, in the case of fresh pursuit.
(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer.
Where the accused is out of the territorial jurisdiction of the warrant, and where no peace officers from within the originating jurisdiction are involved in the execution of the warrant, s. 528 of the Code sets out a process whereby a warrant can be ‘endorsed’ in another territorial jurisdiction such that local police can execute it:
(1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703 [a section dealing with warrants issued by superior courts or courts of appeal], a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.
(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).
(2) An endorsement that is made up on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division.
An arrest warrant for an accused that has not been endorsed (or ‘backed’) cannot be executed in a different territorial jurisdiction by local police. That was the situation that arose here; i.e. the arrest warrant for Mr. Marges was issued in Saskatchewan and had not been endorsed in Yukon. Therefore, it was clear that s. 495(1)(c) of the Code did not apply to these circumstances as the warrant had not been endorsed in the Yukon, and thus the arrest was made solely on the basis of the trafficking charges outstanding in Saskatchewan. Next, the Judge examined whether knowledge of the existence of an extra-territorial warrant for an indictable offence was sufficient to constitute reasonable grounds for an arrest per s. 495(1)(a) of the Code in this case. Essentially, said the Judge, all the officer knew when he arrested Mr. Marges was that there was an outstanding warrant in Saskatchewan relating to a charge of possession for the purpose of trafficking under s. 5(2) of the CDSA. He did not know, with certainty, what substance or in what quantity. The extent to which he may have relied upon Mr. Marges’ comments regarding “weed” could not provide him with the required certainty. The officer knew from dispatch that Mr. Marges was awaiting disposition on the charge, but he did not know with certainty that it was a Schedule I or II substance, he did not know whether the Crown had made a summary election, which would have been possible for certain drugs in certain amounts, and he did not know that the warrant also contained the allegation that Mr. Marges failed to appear in court, which is an indictable offence. Accordingly, the Judge said it was incumbent on the officer to seek out additional information to satisfy himself that the offence that Mr. Marges was being sought on was indeed an indictable offence, and he failed to do so.
A peace officer can arrest someone for an extra-jurisdictional indictable offence. In that circumstance, the officer must take him or her before a justice in the officer’s territorial jurisdiction (s. 503(3)):
Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division to where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested.
However, said the Judge, s. 503 only applies when it is clear that the individual was indeed arrested for an indictable offence. This requirement tracks onto the warrantless arrest requirement in s. 495(1)(a), which is explicit about only applying to a person who there are reasonable grounds to believe has committed an indictable offence. In the case where an arresting officer has sufficient information to be satisfied that an extra-jurisdictional warrant is for an indictable offence, he can arrest prior to that warrant being backed, and in the event that the province or territory with jurisdiction over the offence does not wish to incur the costs of transport, the Code contemplates that the warrant will not be endorsed, the individual will be released, and the warrant will remain outstanding in the originating jurisdiction. Section 703(1) of the Code provides for warrants effective throughout Canada, provided they have been issued by the superior court or court of appeal, which was not the case here.
With all of this in mind, the Judge, therefore, found that Mr. Marges was the subject of an unlawful warrantless arrest as well. Although the officer knew that Mr. Marges was the subject of a warrant for possession for the purpose of trafficking extant in Saskatchewan, he did not have requisite reasonable grounds required by s. 495(1)(a) to believe that Mr. Marges had committed an indictable offence, as he did not have sufficient information to know that the offence was an indictable one, and by extension, the search of Mr. Marges at the holding cells was also unlawful.
*Note – Mr. Marges faced several breach of recognizance charges, two of which he entered guilty pleas to, and not argued in the voir dire.