Will the officer not having a copy of the arrest warrant with them result in a s. 9 Charter violation?

R. v. Gerlitz 2014 ABQB 252Mr. Gerlitz was arrested and detained on eleven outstanding warrants relating to the Income Tax Act and the Criminal Code. Gerlitz, a sovereign citizen (i.e. an individual who does not recognize the authority of the government), alleged that his rights under sections 7, 9, 10(a), 10(b), 10(c) and 12 of the Charter were breached from that incident. He sought a judicial stay of proceedings as the only appropriate remedy under s. 24(2).  While this case focused on other issues, the main issue was the rationale behind having a copy of the warrant upon arrest.

Despite acting on the basis of a valid warrant, the officers responsible for arresting and detaining Mr. Gerlitz did not have a copy of the warrant with them at the time of the arrest. The Crown conceded that it would have been feasible for the officers to have had a copy on them at the time of Mr. Gerlitz’s arrest. Therefore, by not having a copy of the warrant when it was feasible to do so, the police did not comply with s. 29(1) when arresting Mr. Gerlitz. However, the ABQB said that s. 29(2) is the applicable provision when dealing with an arrest warrant. As such, s 29(1) does not apply. Whether not having a copy of the warrant upon arrest amounted to a breach of Mr. Gerlitz’s Charter rights was the question.

In the analysis, the ABQB examined the pre-Charter case, Gamracy v. The Queen, [1974] SCR 640. The issue in Gamracy was whether the officer was acting in the execution of his duty in arresting a person on the basis of an outstanding warrant without having the warrant and without having any knowledge of the contents of the warrant. The accused was charged with assaulting a police officer in execution of his duty when the accused resisted arrest. The court found that the duty of the arresting officer is “fully discharged by telling the arrested person that the reason for his arrest is the existence of an outstanding warrant”. As such, the majority in Gamracy, found that the officer was in the execution of his duty.

In the case at hand, the Honourable Mr. Justice M.D. Gates said in cases where an arrest is made on the basis of an outstanding warrant, there are conflicting cases about what will satisfy the requirement under s 10(a) of the Charter. One line of authority, following the majority in Gamracy, states that informing a person that he or she is being arrested for “outstanding warrants” is sufficient. The other line, following the minority in Gamracy, states that a person needs to be advised not only of the warrant, but also the nature of the charge set out in the warrant. Thus, in R. v. Wrightman, 2004 ONCJ 210, aff’d [2005] OJ No. 1360 (SCJ), the failure of the arresting officer to advise the accused of the “particulars of the warrant” by stating only that there was a warrant for arrest fell below the constitutional requirement under s 10(a).

The evidence of the officer was that he told Mr. Gerlitz he was arresting him for outstanding warrants related to tax or fraud. In Justice Gates’ view, this satisfied the requirements under Gamracy and Wrightman. The inquiry under s 10(a) of the Charter did not, however, end there. The question was whether the information provided to Mr. Gerlitz, on his arrest and detention, “viewed reasonably in all the circumstances”, was sufficient for him to assess his legal position at the time.

Justice Gates said having a copy of the arrest warrant certainly would have been the “prudent police practice” as recommended in R. v. Beune, 2005 BCPC 175. While police are not required to always adhere to the best practices, the practice ultimately chosen in the circumstances of a given arrest must be sufficient to satisfy the Charter rights of the accused (see R. v. Cornell, 2010 SCC 31, at para 43; Beune, at para 59). The operative question in the analysis under s 10(a) of the Charter then was “whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

In the end, Justice Gates ruled:

While I am of the view that the officers could have easily satisfied s. 29(1) in having a copy of the warrant to show to Mr. Gerlitz, I am not persuaded that Mr. Gerlitz lacked sufficient information to properly assess his legal position. It is, of course, very unfortunate that a copy of the warrant was not shown to Mr. Gerlitz at or near the time of his arrest. However, I take into consideration that throughout this proceeding Mr. Gerlitz has insisted on seeing original signatures on each and every document related to this prosecution. I am not at all certain that seeing a copy of the warrant would have met Mr. Gerlitz’s specific concerns. Having said that, I recognize that the determination of whether or not there was a breach of s. 10(a) involves an objective and not a subjective test. Viewed objectively, I am satisfied that Mr. Gerlitz was provided with sufficient information in this instance. As such, there was no breach of s. 10(a).

Therefore, a violation of s. 10(a) of the Charter depends on the circumstances.  What we should learn from this: Best practice: have a copy of the arrest warrant upon the time of arrest. Alternative: advise the accused of the “particulars of the warrant” and provide a copy later when feasible.  

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Filed under Arbitrary Arrest or Detention

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