Monthly Archives: September 2014

Bill C-489 Summary

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders)

Bill C-489 contains several measures to help prevent contact between the accused and victim. It came into force September 19, 2014. This enactment amended section 161 of the Criminal Code (certain offences against a person who is under the age of 16 years) to require a court to consider making an order prohibiting certain offenders from being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order resides or of any other place specified in the order. It also amended subsection 732.1(2) (probation) to ensure that the offender abstains from communicating with any victim, witness or other person identified in a probation order, or refrains from going to any place specified in the order, except in accordance with certain conditions. It made similar amendments to section 742.3 (conditional sentence orders) and subsection 810.1(3.02) (conditions of recognizance).

The enactment also amended section 133 of the Corrections and Conditional Release Act to provide that the releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect the victim or the person, including a condition that the offender abstain from having any contact, including communication by any means, with the victim or the person or from going to any specified place.

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Are clones “plants” for the purposes of s. 7 of the Controlled Drugs and Substances Act?

R. v. Machula 2014 ONCJ 461 – Machula plead guilty to one count of Production of Marihuana, contrary to s. 7 of the Controlled Drugs and Substances Act. A sentencing hearing was then held to establish the number of plants produced by the accused. This was relevant of course due to the various minimum sentences that apply depending on the number of plants.

During the search, officers found 398 three to five inch clones, plus 23 mature plants in the basement. Outside, they located an additional 32 three to five inch clones. It was agreed that the 430 three to five inch clones were cuttings from the mature plants which had been placed in soil, watered, fertilized, and situated under grow lights. They were all in individual peat moss pots.

The issue was whether a clone is a plant as that term is used in s. 7(2)(b)(iii) of the CDSA. Mr. Machula testified that some clones had been cut and planted some two to three weeks earlier and he agreed that they would have root systems. He said, however, that he had cut new clones and put those in pots just two days prior to the search. He said those would not yet have grown roots. He did not say how many recently cut clones there were.  The defence argued that in order to be a plant, there must be a root system. In other words, that a cutting from a mother plant stuck in a pot of dirt is not a plant.

There is no definition of plant in the CDSA. The Crown’s expert testified, that while there was a dispute for legal purposes as to what constituted a plant, he expressed the opinion that:

“A plant was an organism which had or has, the ability to sustain life through photosynthesis. Once a cutting had been planted in some sort of suitable substrate, it became a plant…It was not necessary for a plant to have roots.”

The Crown’s expert included a dead plant within his definition. The defence witness expressed the opinion that a plant was a viable vegetative entity that is capable of sustained and independent life. A cannabis cutting became a plant once it had developed a good root system which was viable in the sense that the cutting was capable of maintaining photosynthesis through it.

The Court decided that a plant “included a cutting which had struck or established roots.” It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a part of that plant. This meaning also included a dead plant. Thus, the existence of roots, whether alive or dead, is what distinguished a cutting which had become a plant from a cutting which was simply a piece of the mother plant.

Ontario Court Justice R.G. Selkirk then examined the definition of “propagate” and believed that this definition describes the process of cloning whereby a piece of the mother plant is inserted into soil, watered, etc. in the hopes a viable plant will ensue.

“The act of cutting a piece of the mother plant off and treating it with a root hormone, as Mr. Machula did here, and placing it in soil which is watered and fertilized and placed under grow lights fits well within the common usage of the words cultivate or propagate. This requires the cutting to be something more than just a piece or a part of the mother plant. It requires evidence of efforts to grow that piece into a mature plant by placing the cutting into soil and providing it with the necessities for growth such as water, nutrient and light.”

Justice R.G. Selkirk said this definition was appropriate because it avoids mere pieces or parts of the mother plant without anything more falling into the definition of plant, but captures pieces being cultivated or propagated into mature marihuana plants whether or not there are roots. It captures the recently started grow operation which still has all the inherent dangers and risks of a grow operation.

“I will define a marijuana plant as a substance analysed to be contained in Schedule II which is being cultivated or propagated or harvested. Pursuant to that definition, the existence of roots is irrelevant…”


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Pretending to have a gun in one’s pocket during a robbery is not “use of an imitation firearm” contrary to s. 85(2) of the Criminal Code

R. v. Benedict 2014 ONSC 4918 – Benedict plead guilty to charges of robbery and 3 counts of breach of recognizance. He plead not guilty to use of an imitation firearm, specifically a 9 millimetre gun, while committing the robbery.

Benedict attended the convience store in a white limo which he had rented as his means of transportation for the night. He entered the store and asked to purchase a 25 pack of John Player’s cigarettes from the store clerk. During the transaction, Benedict while holding his right hand in his jacket, told the clerk that he had a 9 mm gun in his jacket and that he would shoot him if he did not provide him with the money from the cash register. As a result, the clerk provided Benedict with the cash from the register totalling approximately $440.00, as he feared for his safety and believed that Benedict was carrying a concealed firearm. Benedict then left the store with the stolen $440.00 and the stolen 25 pack of John Player’s cigarettes. Benedict then entered the limo and the clerk immediately contacted police.

Section 84 CC defines “imitation firearm” as any “thing that imitates a firearm, and includes a replica firearm”. The prosecution submitted that “thing” in the context of this section must be interpreted to include intent, words and gestures that lead the intended target of the offence, in the present case, the robbery, to reasonably believe that there is a firearm present and available for use by the offender. The defence took the view that the words “imitation” and “thing” must be interpreted to mean a physical object, either brandished or in some way discernable or observed by the intended victim.

The Honourable Robert Pelletier said there is a rather remarkable absence of any jurisprudence on this specific point. Whether a person committing a robbery, hand in pocket, claiming to have a gun, commits the offence of using an imitation firearm in the commission of an indictable offence, the Court informed and despite counsel’s exhaustive review of the jurisprudence, had never been determined. The determination of this issue revolved around the interpretation of “any thing that imitates a firearm” (s. 84).

Justice Pelletier examined the dictionary definition of “thing” and other contexts, but was unable to endorse the prosecution’s definition of “thing” for the following reasons:

“On its face, the use of the words “imitation firearm” and “thing” would tend to suggest that the section contemplates the presence of a physical object, brandished, partially revealed or otherwise detectable, which would give the intended victim to believe that a firearm is present and ready for use. That the penalty for using a firearm in the commission of an offense is the same as the penalty for the use of an imitation firearm in the commission of an offense would tend to support the view that the gravamen of the offense, and its moral blameworthiness, is the vulnerability and horror experienced by the intended victim confronted by an offender in possession of either an actual firearm of an imitation firearm intended to be perceived, and perceived as a real firearm.”

Further, said Justice Pelletier, the word “thing” appearing elsewhere in the Criminal Code is used to denote a physical object, notably section 491, as opposed to references to words or gestures, as opposed to tangible items (things), as in s. 264.1 CC.

In the end, the Justice concluded that on the specific facts of this case, the offence under section 85(2) had not been made out.

“Mr. Benedict threatened to use a firearm in robbing Mr. Amit. His plea of guilty to the charge of robbery is based on those facts. Mr. Amit must certainly have believed that Mr. Benedict possibly had a gun in order to carry out that threat. However, based on this Court’s conclusion that imitation firearm means an object which must be brandished, visible or otherwise detectable, Mr. Benedict’s conduct does not amount to the use of an imitation firearm in the commission of an offense.”

An acquittal was entered.

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Section 9 of the Charter was breached by a drinking driver’s overnight detention after refusing to provide a breath sample in response to an ASD demand

R. v. MacDonald 2014 ABPC 118 – on the voir dire, there was no argument that the constable had grounds to make an ASD demand has he had done. In response to the demand, Mr. MacDonald asked, “Do I have a choice?” The constable re-read the demand from the card he carried with him for that purpose. The answer was, “no.” He arrested Mr. MacDonald, and “Chartered” and “cautioned” him by reading from cards. Mr. MacDonald indicated a desire to speak to a lawyer, and he was taken to the local detachment, arriving at 2:47 AM, at which time the constable started on “the paperwork.”

At 2:58 AM, Mr. MacDonald was placed in the phone room and given instructions. There followed a series of exchanges between he and the constable regarding the following: how to make calls; the constable assisting him; his being unable to reach anyone; his asking for and receiving a pen and paper; his apparent lack of activity; his pen and paper being taken away and his being placed in a cell for 10 minutes because of that perceived lack; his being handcuffed during this time for being “resistant;” the return of his pen and paper and his return to the phone room; whether he had fallen asleep several times or was “resting his eyes;” and finally, regarding his having left a message for a lawyer and now waiting for a return call.

As Mr. MacDonald was now simply waiting for a return call, at 4:11 AM the constable removed him from the phone room and placed him in a cell, on the basis that it was unnecessary for him to wait for the call in the phone room. The constable’s notes indicated that at 5:50 AM a tow truck was en route to tow the vehicle, to comply with the new rules regarding seizures and suspensions, but his notes ended there. He indicated that Mr. MacDonald was in cells at that time and was released some time later.

It was not clear when exactly the decision to charge Mr. MacDonald was made. The constable testified that he was prepared to allow the accused to change his mind regarding giving a breath sample if he wished. He anticipated Mr. MacDonald speaking with counsel at the detachment, and then asking if he could provide a breath sample; the constable considered that if that occurred, the accused could provide one, and he wouldn’t be charged with the earlier ASD refusal. Those thoughts were not conveyed to Mr. MacDonald. The constable indicated that he conclusively determined to charge Mr. MacDonald when he felt he wasn’t making a sufficient effort to obtain legal advice; presumably, that was near the end of the activities in and around the phone room.

Crown and Defence counsel provided cases relevant to this issue.  One such case was R. v. Sparrow, 2006 ABQB 284, in which Justice Sanderman made these remarks in relation to a situation rather similar to this one, in paragraph 14:

“Once Mr. Sparrow refused the lawful demand, the offence was complete. He should have been released. It was inappropriate and improper for Constable Smith to continue to detain Mr. Sparrow so that he could consult counsel. He need not have been kept in police custody in order to facilitate this desire. Once charged, he should have been released as originally contemplated and given the opportunity to consult counsel of his choice on his own terms. There was no justifiable reason for keeping Mr. Sparrow in custody for this limited period of time. Although well-intentioned, and possibly in accordance with established policy, Constable Smith’s actions were not justified. It seems somewhat capricious to allow one Charter right to be breached in order to ensure that another one can be fulfilled. The better approach is to ensure that both are recognized and protected. Mr. Sparrow was arbitrarily detained.”

Of note in the Sparrow case, the detention was only an hour and 40 minutes, rather than over 6 hours as in the case at hand. The crown argued that Mr. MacDonald’s refusal to provide a breath sample in response to the ASD demand did not become unconditional until he had been given an opportunity to consult with counsel, and that consultation with counsel was necessary before the constable could properly consider the offence complete. The crown’s argument was that the constable was obliged to provide Mr. MacDonald with an opportunity to speak to a lawyer before he could properly be charged with the ASD refusal, and therefore taking him into custody was reasonable and necessary for that purpose.

Provincial Court Judge D.R. Shynkar said it is settled law that ASD demands do not require the police to accord an individual the opportunity to speak to a lawyer (except of course where the “forthwith” component cannot be met as per R. v. George, [2004] O.J. No. 3287…this is my note, not the judge’s in this case as it was not an issue here), while a breath demand does, as per R. v Thomsen [1988] 1 S.C.R. 640. Because an individual’s. 10(b) rights must be respected in relation to a breath demand, it makes sense to consider a refusal as conditional until an individual has had a reasonable opportunity to exercise those rights. For an ASD demand, however, there is no such reason to consider a refusal conditional. In this instance, Judge Shynkar said the offence was complete when Mr. MacDonald answered “no” to the demand, notwithstanding that he wanted to contact a lawyer.

“[The constable], in an effort to be fair to Mr. MacDonald by allowing him a chance to change his mind about providing a breath sample after speaking with counsel, and by endeavoring to see that he had prompt access to counsel, unfortunately turned the night’s narrative down an unintended path. A breach of Mr. MacDonald’s s.9 right not to be arbitrarily detained was the regrettable result. He could have, and should have, been given a “Promise to Appear” and sent to his residence, only steps away; alternatively, while it could be said that the arrest and initial detention were justified under s. 495 for the purpose of investigating a possible impaired driving charge in addition to the ASD refusal (although there was no clear evidence of such an investigation being pursued), Mr. MacDonald ought to have been released as soon as it became clear that such a charge would not be laid.”

A stay was granted in this case.

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Overnight detention of the driver following breath tests resulted in a Section 9 Charter breach

R. v. Ternowsky 2014 ABPC 109 – another trial judge has examined whether or not the accused’s section 9 rights were breached by his being held in custody overnight. While this case focused on more than one Charter issue, it essentially hinged on the overnight detention of the accused following breath test results of 130 mg% and 120 mg%. The accused was 79 years of age, has high blood pressure, expressed an intention to spend the night in the sleeper of his truck, he was in a town unfamiliar to him, and it was October 17th, cool but not likely life-threatening on a short term basis, or necessarily even uncomfortable, given access to a vehicle with a sleeping compartment.

Provincial Court Judge D.R. Shynkar said that the gist of this issue was essentially whether Mr. Ternowsky should have been detained, and if so, whether he ought reasonably to have been released prior to the 6 hours until the following morning, and whether his being kept in cells breached his right to be free from arbitrary detention? The arresting officer was due to get off shift a little later than 2:35 AM and a guard watched Mr. Ternowski until the next officer came on shift at about 9 AM, when Mr. Ternowski was released. 

Section 497 of the Criminal Code imposes a duty on peace officers to release an arrested person “as soon as practicable,” and detention is not to continue unless it is “necessary in the public interest.” Of course, some specific examples of the public interest are set out in s. 497(1.1) of the Code.

At para. 27, Judge Shynkar said:

There are a number of decisions in this area, and as one might expect, they are very much dependent on their individual facts. An individual who is intoxicated to the point of being unable to walk unassisted is likely a suitable candidate for being held overnight; a mildly intoxicated individual who has a responsible person ready to pick him up should very likely be immediately released. Between these extremes there are countless permutations of facts that demand careful attention in each particular situation.

At paras. 31-32:

…  Police officers must be live to the fact that an intoxicated person may be a danger to himself or others. Mr. Ternowski’s blood alcohol was over the legal limit, he did show signs of at least mild intoxication, and he was in a town the constable understood to be unfamiliar to him. It is not perfectly clear, however, that he would have been in danger because of his intoxication had he been released. There is no evidence as to what became of his truck, and whether he could reasonably walk to it, and stay in the sleeper without being “in care or control.” Unfortunately, that question was not explored, and it should have been.

The fact that an individual’s blood alcohol level exceeds the legal limit is not in itself reason for detention: citizens cannot be detained on the basis that they are at risk of driving simply because they have access to a vehicle and are “over.” The assumption could not be made in this case that because Mr. Ternowski intended to stay in the sleeper of his truck that he would necessarily drive it before his blood alcohol level dropped sufficiently. Indeed, having just been arrested and charged, one would expect him to be rather careful in that respect.

Judge Shynkar was of the view that the decision to detain Mr. Ternowski at the onset was defensible based on the circumstances existing at that time.  The officer made a judgment call at that point based on the existing considerations, and the judge did not find that it was unreasonable. He was an elderly man, at least slightly intoxicated, in an unfamiliar town in the small hours of the morning, with no one to take charge of him. His s. 9 rights were not breached at that point.

However, the length of the detention following that time became problematic, said the Judge. Given that Mr. Ternowski’s level of intoxication was not particularly high, it was clear that the circumstances justifying his continued detention would change long before the start of the next shift at 9 a.m., over six hours away. Sometime during that six hour period, very likely close to the beginning of it, and perhaps in as little as an hour, it could be expected to be abundantly clear that Mr. Ternowski’s sobriety just did not justify keeping him in a cell, notwithstanding his age, the time of day, or the unfamiliar town. At that point, his s. 9 Charter rights were breached.

At paras. 41-43:

It needs to be noted that there was in fact an opportunity for a reassessment at about 4 a.m., when the [arresting officer], then off-shift, came back to the detachment to see that Mr. Ternowsky had his medication. As noted above, there was evidence that at that time Mr. Ternowsky was wanting release, and while it appears there was discussion of his also wishing to go to his truck, there was unfortunately no exploration of the possibility of immediate release. Given my finding that his detention several hours earlier was defensible but not mandatory, he would almost certainly have been releasable at this time.

Implicit in the evidence is that he was not released because there was no one there, officially, to release him: [the officer], before going off-shift after 2:30 or so, decided that Mr. Ternowsky would be held until 9 the next morning, not because that is when he would be releasable, but because that would be when the resources available to the detachment would permit release; also implicit is that she did not reassess and release Mr. Tarnowsky at 4 a.m. because she was off-shift, and there only to ensure he had his medication.

Police officers working in such circumstances are necessarily constrained by the resources available to them; they cannot work 24 hours a day, and cannot be faulted when they simply do not have the manpower required. At the same time, the breach of an individual’s Charter rights cannot be overlooked because of a lack of police resources: if that lack is resulting in Charter breaches, it is a lack that requires attention.

As a result of the s. 9 Charter breach, Judge Shynkar excluded evidence of the service of the certificate of analyst and “notice of intention”.  Without that evidence, all that was left for the trial proper were the observations and testimony of the officer regarding Mr. Ternowsky’s ability to operate a motor vehicle and whether it was impaired by alcohol.  The Judge said while it was suspicious that Mr. Ternowsky’s ability to operate a motor vehicle was impaired by alcohol, the court was not able to conclude that to be so beyond a reasonable doubt, based on the available evidence. Both counts of 253(1)(a) and 253(1)(b) of the Criminal Code were dismissed.

As a side note, I particularly enjoyed seeing Judge Shynkar’s comment at para. 28 of this case, as it confirms what I have been saying to the cadets and in-service officers all along; not that it changes a court’s decision though:

Here, as in other areas, police officers are called upon to make prompt judgment calls in the course of their working day, knowing that a decision made with the best intentions in the short time available to make it may be scrutinized and argued about for hours or even days in a subsequent court proceeding, and that a judge has the luxury of taking weeks or even months to consider exactly what decision should have been made and in what fashion.

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Does the act of a police officer opening a vehicle door amount to a search within section 8 of the Charter?

R. v. Thomas 2014 ABPC 172 – although this is a Provincial Court decision, I found it important to post as it again addresses the confusion of the “safety search” and the threshold to conduct one.  On the early morning of October 4th, 2013, a female R.C.M.P. officer was on patrol in the Village of Forestburg, Alberta. Police had received 911 calls before midnight complaining of trucks and motorcycles speeding there. The early morning hours also tended to be a busy time as there is a bar in Forestburg. At 12:55 a.m., the officer heard the sound of a truck accelerating and saw it pass her police vehicle “quite quickly”. She formed the opinion that it was travelling at a high rate of speed and elected to undertake a traffic stop. The truck had two occupants, neither of whom was known to the officer. Thomas was in the driver’s seat and a female occupied the passenger seat. The officer directed Thomas to produce his operator’s licence. He did not do so, advising the officer that he had left it at a gas station. Both Thomas and his passenger were questioned about the consumption of alcohol and both denied having consumed any liquor. However, the officer could detect an odour of alcohol from within the vehicle. Given the officer’s height (just under 5’3″) and the height of the truck, she could not see the occupants’ hands unless they were on the dash or steering wheel.

The officer testified that Thomas was looking through his papers and what not, kind of leaning farther away and low down, and with it being dark, not very well lit, with no street lights, she could not see very well into the truck, so she opened the door of the truck. At this time, the officer saw a beer can and smelled alcohol on the driver’s breath. Thereafter, she demanded that Thomas provide a breath sample suitable for analysis by an approved screening device and Thomas refused.

“I needed the door open to see hands, to see if there was any – – if they were doing something different, you know, than what I asked them to be doing. If they [sic] was any knives, if there was any – – anything that could hurt myself or, you know, bystanders, guns, anything like that.”

And further, in cross-examination:

Q.  … Tell us why you could not have focused your flashlight on those three areas [the glove compartment, console and wallet] without opening up the door?

A.  When looking into the vehicle, it’s hard to see in and over and to what’s going on. It’s much easier to be able to see what’s happening in people’s hands to open the door.

Q.  So it was easier for you just to do it that way?

A.  To see what — what’s in somebody’s hands, you know, maybe it’s my height, maybe I’m, you know, too small, but you just can’t see in properly being my height in a big vehicle.

It was the officer’s policy to always maintain visibility of a detained motorist’s hands. On some occasions, this necessitated opening of the vehicle’s door. When asked what were the grounds for making the demand, the officer testified that she could smell alcohol coming from his breath when he was in this vehicle, so she suspected that he had alcohol in his body and he was operating a motor vehicle.

The issue was whether the act of opening the driver’s door of Thomas’ truck constituted an unreasonable search or seizure? The court said that officer safety during a roadside traffic stop involves different considerations than officer safety in other circumstances, including those described by the SCC in R. v. MacDonald, 2014 SCC 3 . Officer safety needs may also differ from one traffic stop to the next. In this case, the officer was a shorter individual, acting alone, who had stopped a truck on a rural highway late at night. She was dealing with a complete stranger. Moreover, she could not see into the truck and had lost sight of Thomas’ hands. These circumstances required the opening of the truck door for officer safety reasons. The extent of any safety search needed to ensure the safety of an investigating officer will also vary, depending on the circumstances of each case, said the court. Here, the safety search involved only the opening of a truck door and the truck itself was parked on a public highway.

The Respondent took no issue with the submission that the officer’s opening of the truck door was a search, but argued it was authorized by law on the pretext that safety searches are authorized on a threshold of ‘reasonable suspicion’ (R. v. Mann, 2004 SCC 52); a reasonable possibility of an imminent threat to the public or the investigating officer, and there is support for that view (see my earlier post on this issue: R. v. Le, 2014 ONSC 2033). Thomas argued that was not the interpretation adopted by the Supreme Court itself. In the minority, concurring judgment authored by Moldaver J., the court expressed the view that Lebel J.’s use of the phrase “reasonable grounds to believe” imported the standard required for a lawful arrest or making of the demand authorized by s.254(3) C.C. (MacDonald, at para.91). At least one provincial superior court has recognized its obligation to follow the express words of the majority decision (see my earlier post on this issue: R. v. Green, 2014 ONSC 1470).

The court in Thomas said that the judgment of the court in MacDonald is not ambiguous or unclear. Its wording has been considered by three members of the Supreme Court and interpreted to mean what it clearly states. If that meaning works a profound change in the law, it is for trial courts to embrace and apply that change; not ignore it, said the judge. The judge was satisfied that a safety search can only be justified where a police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. A ‘reasonable suspicion’ will not suffice.

Provincial Court Judge B.D. Rosborough had no hesitation in concluding that the officer honestly believed that it was necessary to open the driver’s door of Thomas’ truck in order to see his hands and thereby ensure both her safety and the safety of the public.  However, there was no evidence whatsoever available to the officer to enable her to fear the presence of weapons, and there was nothing else, other than the speeding, about the manner in which Thomas operated his vehicle that would have raised safety concerns.

Judge B.D. Rosborough:

Was it ‘reasonably necessary’ for [the officer] to open the driver’s door of Thomas’ truck? Were there other reasonable means to ensure officer safety without (or before) opening the truck door?

I am loathe to second-guess the actions of the police and I recognize that they are often required to make split-second decisions in fluid and potentially dangerous situations.


the Respondent has not proven that [the officer] had reasonable grounds to believe that there was an imminent risk to her safety or the safety of the public when she opened the driver’s door of Thomas’ truck.

Accordingly, Judge Rosborough found that the officer’s search of Thomas’ truck by opening the driver’s door constituted an unreasonable search in violation of the Charter, s.8. However, given the particular facts of this case, it was Judge Rosborough’s view, after the three-prong Grant analysis, that the breach in this case was not serious, the judge was not satisfied that Thomas had proven on a balance of probabilities that admission of the officer’s ‘post-search’ evidence would bring the administration of justice into disrepute, so Thomas’ application was dismissed.

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Whereas an investigative detention “does not impose an obligation on the detained individual to answer questions posed by the police”, the accused has a duty to provide his or her name to the police where the arrest is valid and the accused knows that he or she is under arrest

R. v. Pauli 2014 SKQB 246 – two members of the Saskatoon Police Service attended the appellant’s residence in response to an emergency 9-1-1 call. The 9-1-1 call was placed by the appellant’s daughter. The information relayed by the appellant’s daughter to 9-1-1 was that her father had strangled her mother and pushed her mother into the bathtub. Officers were dispatched to the scene. Upon gathering information at the home from the appellant’s wife and considering the 9-1-1 call, the officers formulated reasonable grounds to arrest Mr. Pauli for assault. The female officer attempted to handcuff the appellant, but he resisted. This triggered a scuffle that ultimately involved both officers, the appellant, his wife, and the family cat. The appellant was eventually handcuffed and taken outside the home. The appellant remained uncooperative and refused to provide his name to the officers. The female officer attempted to read the appellant his Charter warnings, but the appellant would not respond as to whether or not he understood his rights. The appellant was subsequently taken to the police station, where he continued to refuse to identify himself. The appellant was eventually identified at the station by another police officer.

At trial, the appellant faced three charges. He was charged with assault, contrary to s. 266 of the Criminal Code; assaulting a peace officer contrary to s. 270(1)(b) of the Criminal Code; and, wilful obstruction of a peace officer contrary to s. 129(a) of the Criminal Code. The Crown elected to proceed summarily on all three charges. At trial, the Crown did not proceed with the charge of assault in relation to Count 1. On Count 2, the trial judge found the appellant not guilty of assaulting a peace officer, but guilty of the included offence of obstruction under s. 129(a). This conviction related to the appellant’s resistance when the female officer attempted to arrest him. The trial judge also convicted the accused on the charge of obstruction on Count 3. This conviction related to the appellant’s refusal to provide his name to the police upon his arrest. Accordingly, the appellant was convicted of two counts of obstruction.

The appellant’s appeal to the SKQB related to his conviction for wilful obstruction for failing to provide his name or personal information upon arrest. The appellant’s ground of appeal, as set out in his memorandum of argument, was that the trial judge erred in concluding that the appellant had an obligation to identify himself to police such that his refusal to do so constituted obstruction contrary to s. 129(a) of the Criminal Code.

Since Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.), the law appears settled that in general, absent a law to the contrary, citizens are not obligated to provide information, even their name, to the police.  In that case, Lord Parker, C.J. noted at p. 651:

“Wilful” in this context in my judgment means not only “intentional” but also connotes something which is done without lawful excuse … Accordingly, the sole question here is whether the appellant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest.

 In R. v. Bonnycastle, [1969] 4 C.C.C. 198, 68 W.W.R. 407 (B.C.C.A.) at para. 5, McFarlane J.A. stated:

The duty of a peace officer to make enquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.

More recently, the British Columbia Court of Appeal confirmed that generally, a person cannot be convicted of obstruction by refusing to provide their identification. In R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, at para. 49, Lowry J.A. noted:

Generally, a person cannot then be convicted of obstructing a police officer in the execution of duty for simply refusing to say or establish who he or she is when asked to do so: Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.); and R. v. Guthrie (1982), 21 Alta. L.R. (2d) 1, 69 C.C.C. (2d) 216 (C.A.). The law in this respect is no different after Mann. Iacobucci J. noted that “[a]bsent a law to the contrary, individuals are free to do as they please” ([paragraph] 15). He further stated that recognition of a police power to conduct investigative detentions “does not impose an obligation on the detained individual to answer questions posed by the police” ([paragraph] 45).

Although a pre-Charter decision of the Supreme Court of Canada, many of you have probably read or heard of R. v. Moore, [1979] 1 S.C.R. 195, 43 C.C.C. (2d) 83 in which the SCC considered a similar question as to this case before the SKQB. The accused in Moore drove his bicycle through a red light, but was caught in the act by a police officer. The officer stopped the accused and asked for his identification, with the intention of writing him a traffic citation. The accused refused to give his name and address and was charged with obstruction. The Supreme Court of Canada, in Moore, concluded that the accused was not subject to a statutory obligation to provide his identity to the police as provincial traffic laws requiring motorists to provide such identification did not apply to the accused, as he was riding a bicycle.

However, Spence J., for the majority in Moore, noted that the accused had committed the offence in plain sight of the police officer. Justice Spence stated that the police officer, in asking the accused for his name, was “carrying out the duty of enforcing the law of the province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or… a ticket.” Spence J. held:

I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constable’s request for his identification he was obstructing that constable in the performance of his duties. As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings.

In Moore, supra, the Supreme Court found that the accused’s failure to identify himself constituted obstruction.  A similar situation was addressed in R. v. Hudson (1990), 83 Sask.R. 177, [1990] S.J. No. 205 (QL) (Q.B.) (aff’d. (1990), 87 Sask.R. 288, [1990] S.J. No. 476 (QL) (C.A.)). In Hudson, a Saskatoon City Police special constable observed the accused violate a city bylaw by allowing his dog to run loose on public property. The constable identified himself and asked the accused to provide his name and address. The accused refused, on the basis that the officer would write him a citation if he acceded to the demand. The accused was charged with obstruction, and was convicted at trial. On summary appeal to the Court of Queen’s Bench, Baynton J. held that an obligation to disclose his identity had been imposed on the accused by Moore, supra, and that Moore remained good law in the Canadian Charter of Rights and Freedoms era. On appeal to the Saskatchewan Court of Appeal, the Court of Appeal upheld the decision on different grounds, explicitly declining to consider the Moore issue.

The appellant in Pauli asserted that an arresting officer must actually see an accused commit a crime before that accused is obliged to reveal his or her identity. In other words, an accused who is arrested on the basis of reasonable grounds, but who is not directly observed by police to commit an offence, has no obligation to disclose his or her identity.  The Honourable Madam Justice C.L. Dawson said:

I am of the view there is no distinction between whether an officer bases an arrest on his/her actual observation of the accused committing an offence, or on reasonable and probable grounds to believe that the accused has committed an offence. In either circumstance, the officer is empowered to make an arrest. Correspondingly, in both situations, the accused has a duty to provide his or her name to the police, where the arrest is otherwise valid and the accused knows that he or she is under arrest.

In the case at bar, Cst. Krowchenko arrested the appellant for assault. The appellant knew why he was being arrested. The arrest was lawful, and was based on reasonable and probable grounds. Once arrested, the appellant had an obligation to reveal his identity. The case law has established an obligation on the part of an accused to disclose his or her identity, upon lawful arrest. To require otherwise is to unnecessarily impede the police in the course of their duties.

The trial judge committed no error when he found the appellant guilty of obstruction by refusing to provide his name after the appellant had been legally arrested.

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