First, let me premise this post with a caveat that this information is to educate officers, and not to make any officer or agency “look bad”. This latest case out of the Alberta Court of Queen’s Bench (R. v. Hotte 2015 ABQB 323) has examined blanket police policy that conflicts with the law, and an officer’s awareness of his duty to release pursuant to s.498(1) of the Code. From a report of a hit-and-run accident, the Edmonton Police Service (“EPS”) responded and subsequently located the driver, administered an ASD test, which registered a “fail” reading. While one officer was arresting the driver for impaired operation of a motor vehicle, another officer searched the vehicle for more evidence of impaired driving. He found a hard black case containing a substance which appeared to be marihuana in a Ziploc baggie, and which he later determined to weigh some 15 grams. Nothing else of note was found in the vehicle.
The driver provided two samples of breath, which both resulted in readings of 120 mg%. The driver was from Beaverlodge, Alberta, a town some 500 kms. northwest of Edmonton. A conference was held between the arresting officers and the officer in charge that night, a Staff Sgt. At that conference, the officer is charge made two decisions: first, he decided not to release the driver on a Promise to Appear (“PTA”) or any other form of release, and instead to have him lodged in cells and transported to police headquarters downtown where he would be taken before a Justice of the Peace for a bail hearing. Second, given that the driver was to be lodged and not released, he ordered that the driver be strip searched. The officer in charge testified in-chief:
So there was a discussion that occurred around — revolving that and determining whether or not first he would qualify for a PTA or not, and under Edmonton Police Service policy, in order for a person to receive a Promise to Appear, you have to reside (a) in Alberta, (b) within a 200-kilometre radius. I was informed by the investigating members that Mr. Hotte resides in a northwest community in Alberta very close to the British Columbia border called Beaverlodge, and I understand that Beaverlodge is approximately 500 kilometres away from Edmonton. Based on that, I made the decision that Mr. Hotte would have to go for a bail hearing.
The officer in charge then went on to explain the rationale underlying the EPS policy as follows:
Q If you could explain for us a little bit about why that policy exists, why a 200-kilometre radius or within Alberta.
A Well, again, from what I recall speaking to the members, I mean, there’s certain things that we have to ensure that we’re satisfied with: whether or not this offence is going to repeat itself: do we have good identity, is this person going to be compelled to court and that, of course, Your Honour, became one of the concerns with the distance that we had of where Mr. Hotte was residing.
THE COURT: Okay. Can I stop you there and if you go back to the beginning and slowly indicate what these concerns were?
A The concern was for him to appear in court, Your Honour, due to the distance, and I was told that Mr. Hotte did not have any ties to Edmonton, that he comes there often and that, if I recall, he works within the oilfield industry and due to the geographical location, that is why the decision was made — I made the decision for him to go for a bail hearing.
During cross-examination, defence counsel asked the officer in charge whether or not he considered releasing the driver on the basis of a recognizance in the amount of $500 as contemplated by s. 498(1)(d) of the Criminal Code, being the release provision specifically applicable to persons who do not ordinarily reside within 200 km of the place of custody. The court allowed the recognizance language of s. 498(1)(d) to be read aloud to the officer in charge. In response, the officer testified that he had never heard of that method of release, and that it is not contemplated by the EPS policy that he followed.
Having determined that the driver would be lodged rather than released on a PTA or recognizance, the officer in charge then determined that the driver was to be strip searched. In doing so, he again relied upon the applicable EPS policy, which reads in relevant part as follows:
A legal threshold for conducting strip searches. The legal threshold required to strip search an arrested person depends on whether the person will likely be released from custody without being lodged in Detainee Management Unit, DMU, or lodged in DMU.
Persons being lodged in DMU. The strip search of persons who have been lawfully arrested and who are not likely to be lodged in DMU, shall not be strip searched unless there are reasonable and probable grounds to believe the arrested persons have in their possession a weapon, evidence or a device that may be used to facilitate an escape. Police officers must not only have reasonable and probable grounds to make an arrest, but also reasonable and probable grounds to conduct a strip search before a strip search will be permissible.
Persons being lodged in DMU. When an arrested person is to be in a short-term custodial sentence such as DMU rather than being detained for a brief period of time, the reasonable and probable grounds standard does not apply. A strip search of the accused can take place based on the standard of reasonable suspicion. The distinction between the standard for a strip search is incidental to arrest, i.e., reasonable and probable grounds, and strip searches in a custodial setting is justified because of safety concerns in relation to other detainees who might have contact with a detainee in DMU or en route to or at the bail hearing office or the Edmonton Remand Centre. An arrested person being in DMU cannot automatically be strip searched just because the person is to be lodged in DMU. A strip search of a person being lodged in DMU is only permitted when a reasonable suspicion exists that the arrested person is in possession of weapons, evidence or items to aid an escape.
The officer in charge applied the reasonable suspicion standard directed in the above passage from the EPS’s strip search policy:
A The concern is that if there’s drugs that then end up getting into these areas and that, and depending on what type of a drug it is, the last thing that I want to see happen is for someone to then end up consuming drugs or hiding them and taking them further where they’re into Remand. That’s not a good situation. And again, ma’am, for the health and the welfare of other detainees, we do our best to ensure that their safety is paramount.
Nothing was found from the strip search. The trial judge found that the officer in charge’s decision to further detain the driver was justified by s. 498(1.1)(b) of the Criminal Code, i.e. on the ground “that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.” On this basis, he dismissed the driver’s claim that he had been arbitrarily detained contrary to s. 9 of the Charter. Regarding, the strip search, the trial judge found that by applying the EPS policy in preference to the law established in in R. v. Golden, 2001 SCC No. 83, the officer in charge’s decision to direct that the driver be strip searched constituted a violation of s. 8 of the Charter, there being no reasonable and probable grounds supporting such a search.
The appeal judge said that the blanket EPS police policy stating that every person who resides more than 200 kms (outside of Edmonton) cannot be released on a Promise to Appear, if applied without exception, would effectively have taken away the officer in charge’s discretion to release pursuant to s.498(1) of the Criminal Code (for the purpose of this post, I won’t recite what that section states). It was clear to the appeal judge that the application of a blanket policy regarding the release of an individual can constitute an arbitrary detention (the judge cited some case law to support that conclusion). As such, the appeal judge found insufficient evidence from the officer in charge to support the trial judge’s finding that the officer considered anything more than just the distance from Edmonton that the accused lived, and accordingly there was palpable and overriding error in the trial judge’s finding of fact in this regard. The appeal judge concluded what happened here was that the officer was unaware of his duty to release pursuant to s.498(1), and was only concerned with applying the EPS policy, which policy the trial judge did not specifically address. Accordingly, in failing to release the accused without considering s.498(1), the officer violated the mandatory requirements of that section.
The appeal judge stated that the discretion conferred upon s. 498 of the Criminal Code is to be exercised by the “officer in charge”. It is not to be exercised months or years later by a reviewing court. Had the officer in charge actually turned his mind to the circumstances of this case — including the driver’s clean record, and the availability of a recognizance under s. 498(1)(d) — he may well have decided to release the driver. His decision to detain the driver may not later be justified ex post facto on the basis of factors which may have supported a similar decision, but which were not actually known to or considered by the officer in charge. The officer in charge’s detention of the driver for an additional 10 hours based upon a blanket EPS policy was contrary to s. 498, otherwise unsupported by lawful authority, and contrary to s. 9 of the Charter.
The accused’s appeal was granted, his conviction under s.253(1)(b) set aside, and a new trial was ordered.
For the cadets of the APA, remember that knowing departmental policy and procedure is very important to an officer. This is important in light of evolving court decisions holding that a breach of an internal policy and procedure may amount to a breach of the standard of care owed to an individual or the public at large. The police policies are carefully and thoughtfully drafted. They are designed to assist officers in the conduct of the activity that put them at more risk of harm or liability than any of our other duties. Although the policy may not, in itself, constitute the standard of care, compliance with the policy is a very important factor to consider in determining whether the standard of care has been met. At the same time, however, as officers we must not only be alive to applying the policy; we must also be alive to our duties and obligations under s. 495(2), 497, 503, and 498 of the Code, and so on. As the Honourable Justice Leggatt stated in R. v. Pithart (1987), 34 CCC (3d) 150 (BC Co. Ct.) at page 10:
… A decision to arrest and detain an individual should be based on reasons relating specifically to that individual. Section 9 of the Charter is intended to guarantee an individual, not a collective, right. This should be borne in mind when searching for an appropriate meaning to attach to “arbitrarily detained”, for, as the Supreme Court of Canada has said on numerous occasions, a purposive approach should be taken to the interpretation of the Charter. Accordingly, I conclude detention based on a blanket policy rather than on reasons pertaining to the individual detainee violates the right not to be arbitrarily detained, guaranteed by s.9 of the Charter.