Monthly Archives: February 2015

The principles discussed in R. v. Godoy [1999] 1 S.C.R. 311 still have implications today

R. v. Alexson 2015 MBCA 5 – police responded to a 911 hang-up call by attending Alexson’s home. They heard him yelling at his wife and child and saw the wife and child clinging to each other in fear from outside the home. The wife allowed the officers into the home where they instructed the wife to take the child out of the room. Alexson was clearly intoxicated and belligerent with the officers, who believed they had to remove Alexson from the home for the safety of his wife and child. He fought the officers and had to be handcuffed. As he was being placed in the police car, Alexson kicked an officer in the jaw with his booted foot. At trial, the judge considered the officers’ removal of Alexson from the home unnecessary and unlawful, such that they were acting outside the execution of their duty when Alexson kicked one of them. The appeal judge found that Alexson’s forcible removal from his home constituted police assault, and that Alexson was therefore justified in using reasonable force to defend himself. The Crown appealed to the Manitoba Court of Appeal from the dismissal of its summary conviction appeal from Alexson’s acquittal on a charge of assaulting a police officer engaged in the execution of his duty.

This case forced the MBCA to reexamine implications of cases decided years ago. Unfortunately, domestic violence incidents like this one are often before the courts. What are officers to do when they believe a belligerent and intoxicated person poses a danger to others in the home? Do they arrest that person and risk being assaulted with impunity and sued in civil court for unlawful arrest; or, do they leave and risk being blamed if another member of the household is hurt because they did not remove that person? This appeal provided the MBCA with an opportunity to clarify the scope of police authority to enter the home and deal with such situations.

The sources of legal authority for police to enter a home will typically arise through statute, common law, or by the consent of a person with the authority to grant access. In this case, the officers were investigating a 911 hang-up call. When they attended to the home, they knocked on the door and a woman let them in. The circumstances of this case did not allow the officers to ascertain whether she had the authority to do so. They were now in the home and had to rely on their experience and judgment to deal with a potentially volatile situation.

Let’s examine some prior cases that were discussed for this appeal: when police action constitutes a prima facie interference with a person’s liberty or property, the two-pronged Waterfield/Dedman test provides useful guidance as to whether the officers had the authority to enter the home for investigatory purposes and were thereby lawfully acting in the exercise of their duty (R. v. Waterfield, [1963] 3 All E.R. 659 (Ct. Crim. App.); and Dedman v. The Queen et al., [1985] 2 S.C.R. 2). At the first stage, it must be determined whether the entry in the home to deal with the 911 call fell within the general scope of any duty imposed on the police by statute or at common law. In this particular case, the Police Services Act, C.C.S.M., c. P94.5 (the PSA), provides at s. 24(1) that an officer has all the powers and duties of a peace officer at common law and at s. 25 that the duties of an officer include preserving the public peace and preventing crimes and offences (as a side note, similar provisions exist in s. 13 and s. 15(2) of the Police Act R.S.P.E.I. 1988, c. P-11.1; s. 42(1)(2) of the Police Act S.N.S. 2004, c. 31; s. 2(2) and 12(1) of the Police Act S.N.B. 1977, c. P-9.2, etc.). As well, under the ancillary common law powers and duties, an officer must preserve the peace, prevent crime and protect life and property (see Dedman at para. 14; and R. v. MacDonald, 2014 SCC 3 at para. 35, [2014] 1 S.C.R. 37).

This case was very similar to the fact situation found in R. v. Godoy, [1999] 1 S.C.R. 311. As a reminder, in that case, the Supreme Court of Canada held that the police officers had the authority to forcibly enter the home without a warrant to investigate a 911 hang-up call and to provide such assistance as may be required. This authority was not limited to 911 hang-ups. It also extended to situations where it could be inferred that the 911 caller was or could be in some distress (at para. 16). However, their authority to enter the home was limited to addressing the safety concerns of the residents and did not extend to a right to search the home or otherwise intrude on a resident’s privacy (at para. 22). In Godoy, the investigation led to an arrest of one of the occupants in the home.

The MBCA said, in light of Godoy, there can be no question that the officers in this case had the authority to enter the home to investigate the reason for the 911 call, irrespective of whether the person that let them in had the authority to do so. In fact, they could have used reasonable force to enter to ascertain the health and safety of the 911 caller, had it been required (see Godoy at paras. 22-23). Their investigation, as brief as it was, led them to believe, based on their judgment and experience, that an assault on the wife or child was about to occur. As a result, they decided to forcibly remove the respondent from the home.

For the second part of the two-pronged Waterfield/Dedman test, it must be determined whether this forcible removal was justifiable in the circumstances. In Godoy, the Supreme Court of Canada set out a number of factors to be weighed to balance the police duty against the liberty in question. These factors have recently been reframed by the Supreme Court of Canada in MacDonald, at para. 37, to include: (a) the importance of the performance of the duty to the public good; (b) the necessity of the interference with individual liberty for the performance of the duty; and (c) the extent of the interference with individual liberty. These factors are to be weighed together to ascertain if the police action was “reasonably necessary” (MacDonald at para. 32). The Honourable Mr. Chief Justice Richard J.F. Chartier, speaking for a unanimous court, at para. 20 said the justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions (see R. v. Golub (D.J.) (1997), 102 O.A.C. 176 at paras. 44-45, leave to appeal to S.C.C. dismissed, [1997] S.C.C.A. No. 571 (QL); and MacDonald at para. 32).

“The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience.”

The officer testified that he was taking the respondent to a detoxification centre to prevent him from assaulting them and to sober up. He was not going to charge him with an offence. Justice Chartier said that a cumulative assessment of the relevant factors satisfied him that the arrest and detention were reasonably necessary for the carrying out of the duty to preserve the peace and prevent crime. It was a preventative and restrained measure taken to protect other members of the household. The nature and extent of the interference with the respondent’s liberty was limited to the time it took for him to sober up. It was also a reasonable interference that served an important public purpose.

The MBCA also examined another issue: did the SCA judge err in law in holding that the officers lacked reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene? At para. 24, Justice Chartier said:

“The police power to arrest people without a warrant is not without limits. It is governed by a requirement which serves to protect a person’s liberty against unwarranted interference from the state: there must be “reasonable grounds” upon which to base the arrest. Section 495(1)(a) of the Criminal Code (the Code) gives officers this power when they believe, on reasonable grounds, that a person “is about to commit an indictable offence.” This requirement carries both a subjective and objective component: was the officer’s subjective belief that the respondent was about to assault one of the occupants of the home objectively reasonable in the circumstances? See R. v. Storrey, [1990] 1 S.C.R. 241.”

In this case, the trial judge held that the officer did not have reasonable grounds to believe that the respondent was about to commit an assault. The SCA judge concluded in her reasons that, because the respondent’s conduct did not present an “imminent and substantial threat of some act of violence” (at para. 28), the trial judge was correct to find that the officer lacked reasonable grounds to believe an offence was about to be committed. Justice Chartier said under s. 495(1)(a) of the Code, officers do not have to wait until a person overtly threatens or becomes very violent before intervening. The threshold is much lower. In R. v. Shepherd, 2009 SCC 35 [2009] 2 S.C.R. 527), the Supreme Court of Canada reiterated that the reasonable grounds threshold is relatively low. An officer “need not demonstrate a prima facie case” (at para. 23). See also R. v. Jacob (J.A.), 2013 MBCA 29 at paras. 24-34, 291 Man.R. (2d) 135. What is required is that the officer’s belief that an assault was about to occur be more likely than not (again see Storrey). Moreover, the evidence that can form the basis for the officer’s reasonable grounds can be hearsay evidence (see Eccles v. Bourque et al., [1975] 2 S.C.R. 739; and R. v. Collins, [1987] 1 S.C.R. 265 at 279).

In Justice Chartier’s view, the SCA judge erred in law in holding that the police lacked reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene. There was ample evidence to meet the requisite threshold and to objectively support the officer’s subjective belief that the respondent was about to commit an assault on either the wife or child. Someone had called 911 and it can reasonably be inferred that it was the wife; the respondent was seen screaming at them; he was yelling at them that he was “pissed off”; he was intoxicated and undeterred by the police presence; he attempted to go after the wife and child when the officers sent them to the other room; and he clenched his fists and took a fighting stance against the officers. In the circumstances, Justice Chartier concluded that the officer had reasonable grounds to arrest the respondent for an assault about to be committed. In light of this conclusion, it was unnecessary to decide, alternatively, whether by statute or common law, the respondent could have been arrested for a breach of the peace under s. 31 of the Code (while s. 31 requires the breach to have already occurred, at common law an arrest for an anticipated breach of the peace can be made (see Hayes v. Thompson et al. (1985), 18 C.C.C. (3d) 254 (B.C.C.A.)).

Justice Chartier overturned the acquittal, substituted a conviction, and remitted the matter to the trial judge with the direction that he impose a sentence that is warranted in law.

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Filed under Search and Seizure, Worthy of a Review

Right to Counsel of Choice

It seems most case law as of late is in regards to s. 10(b) of the Charter, or the implementational facet of the right. This latest post is out of a Provincial Court, so although it has no binding authority, it discussed an important principle for us to keep in mind.

R. v. Lafrance 2015 SKPC 13 – Lafrance was arrested on a Saturday night, just after 10 PM, for driving while his ability to do so was impaired by alcohol. First, Lafrance contacted a private lawyer, received a recorded message saying the office was closed, so he left a message. Lafrance next asked to call another private lawyer, so an officer called on his behalf, and  received no answer. Next, Lafrance called a law office and received a live operator for an answering service who asked him to hold while she attempted to contact a lawyer; he did so. An officer observed Lafrance through the window and could see that or thought that he was on hold because he was not talking. Eventually, after an undefined length of time, but not more than 23 minutes, the officer entered the room and checked the phone. He thought it was dead and hung it up. The officer believed that Lafrance was not exercising rights and was stalling the investigation and process for obtaining samples within the legislated time frame.

The officer testified that he didn’t know if the answering service had connected Lafrance and he had a brief conversation or not; the officer didn’t see that happen. However, the officer wanted to ensure that Lafrance talked to an open law office and suggested to him it was in his best interest to at least talk to a Legal Aid lawyer to ensure he had that opportunity to exercise his Charter rights. The officer then dialed the number for Legal Aid duty counsel and passed the phone to Lafrance, who spoke to counsel. Following that, he gave two breath samples.

Lafrance testified that he knew other lawyers he would have tried to call, but the officer said they needed to hurry and said words he understood to mean that if he didn’t reach counsel soon, he would be “charged” with refusing the breathalyzer or refusing to exercise his right to counsel. Lafrance said that when the officer dialed Legal Aid, he yelled to him: “Pick up the phone! Pick up the phone!” So he did. He said he felt “pushed and guided” and that he had no choice but to talk to Legal Aid counsel. Provincial Court Judge B.J. Tomkins accepted that evidence.

Judge Tomkins said:

The implementation component requires the police to do two things: first, they must give the accused person a reasonable opportunity to consult counsel and, second, they must defer attempts to gather evidence until the accused has had a reasonable opportunity to exercise his or her right.

The right to counsel of choice is an integral part of the right...

Thus, police are not allowed to choose a lawyer for a person who is detained, nor are police allowed to direct or “stream” someone to Legal Aid in lieu of counsel of choice.”

The Judge said that the implementation component of the right must be meaningful. That is, it cannot be enough to place a call to an office that you are virtually certain will not be open and where the accused is unlikely to reach counsel. According to Judge Tomkins, that would be little better than making no call at all as it does not meaningfully afford an accused person a reasonable opportunity to consult counsel. Calls to Lafrance’s counsel of choice were made to those lawyers’ offices after 10:00 PM on a Saturday night. Not surprisingly, said the Judge, each call resulted in a message informing that the office was closed and invited callers to leave a message. Given the day and time, common sense suggested that the chance of a lawyer from the firm retrieving and returning the message within a reasonable time were negligible.

Judge Tomkins felt that none of the officers involved took any steps to obtain meaningful contact information for the lawyers Lafrance wished to consult and telephone calls to offices which one would expect to be closed cannot meet the officers’ implementation obligation. When the officer checked and thought the phone was dead following the call to the law office, this was because he did not hear music or any other sound suggesting the call was on hold. However, he also did not hear a dial tone. As such, in Judge Tomkins’ view, the officer did not know if the call had been disconnected or not. Given this, it might be expected that the officer would place a second call to the service to confirm that the call had been disconnected or, maybe, to learn that the call had remained alive until he hung it up. This is common practice in most other circumstances where a person believes a telephone call has been disconnected, according to the Judge, so Judge Tomkins could not see any reason why this would not be a reasonable expectation in this case.

The officers actions were seen to go well beyond reminding Lafrance of the availability of Legal Aid. He hung up a call which he believed – but did not know – had been disconnected, dialed Legal Aid and instructed Lafrance to pick up the phone. Judge Tomkins noted that there was no urgency in the situation. The call to Legal Aid was placed at about 11:00 PM, almost an hour before the window of time for taking the breathalyzer tests would close for the presumption. The Judge was also mindful that Lafrance did not directly ask for access to the white pages of the phone book, nor did he ask the officer to consult them. However, once the police officers take responsibility for implementing the accused’s counsel rights, they take on the obligation to take such steps as a reasonably diligent accused person would be expected to take.

Judge Tomkins said the officer did not consult the white pages to learn if either private lawyer had residential numbers listed. He did not consult computer resources to see if either had a reachable number listed. He did not call back to the Merchant Law Group Service to learn whether or not the call had been cut off and if so, to reinstate the request to seek counsel. All of these are reasonable expectations in an attempt to actually connect a person to counsel and neither would have taken very much time. Instead, their efforts were likely doomed even before the counsel calls were made and the officer knew that.

Following the Grant analysis, the Certificate of Qualified Technician was not admitted as evidence in the trial of these charges.

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Filed under Recent Case Law, Section 10 Charter

No factual foundation to 20 minute delay of breath tests occasioned by “officer safety” concerns in this case

R. v. Moiz 2015 ONCJ 40 – the officer stopped the defendant for speeding. The defendant was alone in his car. As the officer spoke to him, explaining the reason for the stop, he formulated the requisite grounds for an ASD demand, to which the defendant complied. The officer conducted a “cursory” search of the defendant for weapons before placing him in the rear of his police cruiser; the sample registered a “F” and the defendant was arrested. Arrangements were then made for a qualified technician to conduct further testing once the defendant was taken back to the police division. In addition, the officer also requested a back-up unit and a tow truck. The officer testified that because of concerns for his own safety and that of the defendant, he decided to leave him secured in the rear of the police cruiser until back-up arrived. In terms of his own safety concerns, the officer explained that the defendant was not handcuffed and that protocol required that he be so while being transported. Given that the officer was not acquainted with the defendant and had just advised him he was under arrest, he worried that if he removed him to handcuff him he might respond aggressively. Similarly, the officer noted that a street was close by and should the defendant try to flee, he worried that a passing vehicle could hit him.

The officer also gave evidence that as the defendant was seated in the rear of the police cruiser and was being apprised of his right to counsel, a friend of the defendant just happened to come by and approached them. The friend asked if he could speak to the defendant and the officer told him that would not be possible. With the defendant’s approval, the officer told his friend where the defendant would be taken (that individual ultimately arranged for the defendant’s parents to pick him up from the police division after his eventual release from custody later that morning). Although the officer testified that he was initially startled when the defendant’s friend approached the police cruiser, as he did not notice him until he was standing at his window, he did not suggest that the friend’s presence or behaviour gave rise to any safety concerns.  Backup arrived, 20 minutes after the arrest, and the officer left the scene with the defendant. Once back at the station, the defendant was processed, given access to counsel, and turned over to a qualified breath technician.  The first sample was provided some 69 minutes after the arrest; each of the samples registered a reading of 160 milligrams of alcohol in 100 millilitres of blood.

The officer explained that Peel Regional Police protocol necessitated that he not transport the defendant without first securing his hands with handcuffs. The Honourable Justice James Stribopoulos said, “Quite obviously, it is not my place to second-guess police operational decisions of this nature.” In any event said the Justice, it was not the protocol about transporting prisoners with handcuffs that led to the delay. Rather, it was the decision to await the arrival of another police officer before removing the defendant from the back of the police cruiser and handcuffing him that led directly to this significant period of delay. In terms of an explanation for it, the officer cited concerns for his own safety and that of the defendant. At para. 35, Justice Stribopoulos said:

I am of course extremely sympathetic to the dangers faced by police officers, they are invariably called upon to deal with quickly unfolding, fluid and inherently unpredictable situations that can quickly and rather unexpectedly turn violent. Recent events in Alberta provide a stark reminder of the constant dangers faced by police officers. Such concerns have led the Supreme Court of Canada to develop protective search powers aimed at helping police officers ensure their safety and the safety of the public.

And a para. 38:

…In circumstances where a police officer has well-founded safety concerns about a person just arrested for a drinking and driving related offence, it would no doubt be entirely reasonable to wait at the roadside until back-up arrives to assist with handcuffing and searching before the person arrested is transported to the police division. So, for example, in a situation where the person arrested has a prior record for violence, or is being uncooperative or combative, or is simply behaving erratically, a delay to await the arrival of back-up would undoubtedly be entirely reasonable and not serve to call into question the “as soon as practicable” requirement. That was not, however, the situation here.

And at para. 39:

…the evidence clearly established that the defendant was polite and cooperative throughout his dealings with the officer. In addition, there was also evidence that even before placing the defendant in the rear of the police cruiser [the officer] had conducted a protective pat-down search, eliminating any concern that the defendant might be carrying a weapon. In other words, at least from an objective standpoint, there was nothing about the circumstances faced by [the officer] that served to justify the safety concerns he cited as the reason for delaying the defendant’s departure from the roadside for nearly twenty minutes to await the arrival of a back-up officer. To be clear, I am not questioning the veracity of [the officer’s] claim that he was motivated by concerns for safety. (In that regard, I note that he has only been a police officer for 3 1/2 years, which I think explains his extraordinarily cautious approach.) My point is that where safety concerns have no objective foundation and are premised on little more than creative speculation, they should not serve to excuse a police officer from the statutory directive that breath samples be collected “as soon as practicable after the time when the offence was alleged to have been committed”.

For all of these reasons, the Justice was simply not satisfied that the Crown had established beyond a reasonable doubt an essential precondition for engaging the presumption found in section 258(1)(c) of the Criminal Code. The Justice was most concerned with the nearly twenty-minutes of delay at the roadside between the defendant’s arrest and when he was finally transported back to the police division. As a result, the Crown was not entitled to seek the benefit of that presumption. Without the presumption found in section 258(1)(c), there was no evidence before the court capable of establishing the defendant’s blood alcohol concentration at the time of driving. The charge against the defendant was therefore dismissed.

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Filed under Impaired Driving, Safety Search

Section 10(b) of the Charter violated where accused arrested for impaired driving, indicated he wished to speak to a lawyer, but then after the breath demand was asked whether he would comply and he refused.

If you recall an earlier post of mine, R. v. Wiebe 2013 MBPC 27, from June of 2013, a similar situation has resulted again, so I have made this post as a reminder. This time, it comes out of a Quebec court. In Hammoud v. R. 2014 QCCQ 13252, following a traffic stop and after having observed a few symptoms of impairment by alcohol, the officer demanded that Mr. Hammoud provide a breath sample for analysis by an approved screening device. The result was “Fail”. Mr. Hammoud was then placed under arrest for operating a motor vehicle while his ability to drive was impaired by alcohol. The officer informed Mr. Hammoud of his constitutional rights and police warning. When the officer asked Mr. Hammoud “Do you wish to consult a duty counsel or any other lawyer?”, Mr. Hammoud answered “Yes”. Following the breath demand,  the officer asked Mr. Hammoud “Do you understand?” Mr. Hammoud answered affirmatively again. The officer then asked Mr. Hammoud whether he consented to follow him to the police station; Mr. Hammoud responded by asking “Do I have a choice?

That answer raised a doubt in the officer’s mind as to Mr. Hammoud’s comprehension of the information on the card, as it clearly sets out that refusal or failure to comply with the order is a criminal offence that may result in additional charges, so the officer read the card again. He went through each part carefully, and provided additional explanations in his own words as well. When asked if he understand, Mr. Hammoud responded affirmatively. The officer again asked Mr. Hammoud whether he consented to follow him to the police station. Mr. Hammoud answered “No”. To be sure, another officer read the card to Mr. Hammoud one more time, and summarized the information in his own words. The second officer then asked Mr. Hammoud whether he understood. Mr. Hammoud replied that he understood that the officers thought he was impaired and intended to take him to the police station so that he could blow into the breathalyzer. He also understood that if he were to refuse, his driver’s licence would be suspended and his car would be towed. Mr. Hammoud then said, “No, I don’t want to go, my lawyer will take care of it. See you in court.”

If you recall, in R. v. Prosper [1994] 3 S.C.R. 236, a case involving a breathalyzer demand, the majority of the Court ruled that, where an accused has indicated the desire to consult counsel, the police must provide the person with a reasonable opportunity to do so and must “hold off” from attempting to elicit incriminatory evidence, such as breath samples, from the accused until he or she has had this opportunity. In this case, the Honourable Anouk Desaulniers J.Q.C. said allowing detainees to call their lawyer from inside a patrol car may potentially raise issues with respect to safety and confidentiality, but the police could have taken Mr. Hammoud to the police station, which was only a few minutes away, to provide him with an opportunity to make a confidential call to his lawyer, before asking him to respond to a breathalyzer demand, and on a balance of probabilities, ruled his right to counsel under section 10(b) of the Charter had been infringed (of note to the police cadets, this issue pertains to a breath demand. The Supreme Court of Canada has made it clear that requiring a motorist to blow into an approved screening device without being entitled to consult a lawyer is a reasonable limitation on the right to retain and instruct counsel; within limits of course).  The Judge ordered the exclusion of the refusal evidence under section 24(2) of the Charter.

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Filed under APA Cadets, Impaired Driving, Section 10 Charter