Category Archives: Worthy of a Review

Sue Charlton: Mick, give him your wallet. Michael J. “Crocodile” Dundee: What for? Sue Charlton: He’s got a knife. Michael J. “Crocodile” Dundee: [chuckling] That’s not a knife. [draws a large Bowie knife] That’s a knife.

Is it just a knife, or is it a ‘weapon’ as contemplated in the Criminal Code?

The definition in the Criminal Code is as follows:

weapon means any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

In R. v. Vader 2018 ABQB 1, the accused was found in the driver’s seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically. When he was arrested, the police noted the handle of what turned out to be an old machete extruding from the under the driver’s side floor mat of the vehicle and a fishing knife, in a leather scabbard, in an open area at the bottom of the driver’s side door. Vader, at the time, was bound by two release documents, each of which provided as follows:

You shall not possess any firearms, ammunition, explosives or any other type of weapon whatsoever and you shall surrender any firearms, ammunition, explosives or any other type of weapon currently within your possession to the St. Albert RCMP Detachment within 24 hours of your release.

He was not charged under s. 88 or s. 90 of the Criminal Code, but with violating the terms of his release. The trial judge concluded that both items were “weapons” within the definition of “weapon” in s. 2 of the Criminal Code and convicted him. Vader appealed his conviction, based on the definition of ‘weapon’ in the Code. The focus at trial was on the middle portion of the definition (designed to be used).

On appeal, the Crown submitted that the inference which could have been drawn on the evidence was that the accused intended to use the items as weapons. The Crown argued that inference was, in all the circumstances of the case, inescapable, and should have been drawn by the learned trial judge. The appeal judge noted that items which have both violent and non-violent uses are not caught by an objective categorization. Context is necessary to determine if the violent aspect of the item is ascendant. Weapons offences are not absolute liability offences. An accused person retains the right to attempt to establish justification for possessing an item which is otherwise, by its nature, a weapon.

So, said the judge, while it may be reasonable to have a machete in the forest or a fishing knife at a lake, it’s not reasonable to have either on a residential bus in February in the City of Edmonton. In that latter context, it is not the manufacturer’s design or the modification of it performed by others which determines the character of the object. It is the accused’s design which is determinative. The accused’s design is determined by context. In those circumstances, the otherwise ambiguous nature of the item is determined by what possibilities the evidence does and does not support. In the absence of some other reasonable possibility, it leads to the inference that the possessor’s design was to use the machete as a weapon. Or, put another way, to have the machete as a weapon.

By way of another example, the judge said that an accused with a freshly sharpened machete in the leg of his pants in February, in Edmonton, at a local bar, in the absence of other reasonable possibilities, could be inferred to have the item which he designed to use as a weapon. He has an item designed to be used as a weapon, whether he intends to use it or not. If the circumstances are the same, but the accused is shown to have gone to the bar to seek retribution for an earlier beating at the hands of a fellow bar patron, one might infer intent to use the weapon, which the machete was found to be by virtue of the context and his design. An item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that it was the accused’s design and the context does not support any other reasonable possibility.

Vader’s appeal was dismissed.

 

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Shackles, handcuffs, and the courtroom

A Provincial Court Judge in Newfoundland and Labrador has conducted an extensive review of  cases that address the issue of restraint of in-custody accused in court. In R. v. Kalleo [2016] N.J. No. 57, the accused faced charges of assaulting her domestic partner and for breaches of court orders. At the time of trial, she was in custody and had been denied bail. RCMP brought the accused to court in handcuffs and leg shackles. Defence counsel objected. From 2006 until February 2015, RCMP practice in Nain was to bring in-custody accused to court in leg shackles only. The new practice arose after police brought two male prisoners in both leg shackles and handcuffs. A police witness testified that the policy was necessary for security reasons given the layout of the courtroom exits and the fact that only one officer was available for court. The police witness testified that the practice was consistent with unwritten RCMP policy to keep all in-custody prisoners in handcuffs during all aspects of court proceedings to safeguard against escape attempts. Defence counsel submitted that the RCMP policy was not based on any kind of risk assessment of the accused. The Judge allowed defence’s objection.

Judge J.L Joy said every one of the cases reviewed adopted the principle that restraint of prisoners in a courtroom is within the sole jurisdiction of the presiding judge. One case, R. v. D.D., 2009 ONCJ 772, reviewed the practice extensively:

(a) The defendant was entitled to maintain her dignity in the context of the presumption of innocence unless there was a valid reason for the use of restraints on her.

(b) In balancing the need for safety of all persons in the courtroom and the prevention of escape against the need to maintain the dignity of the defendant in the context of the presumption of innocence, the views and expertise of the security personnel must be given considerable weight. Deference to the opinions of the security personnel is inappropriate. The issue of restraint is a matter of judicial determination.

(c) This Court has no authority over security measures outside the courtroom but can provide guiding directions on security measures which may impact directly on the ability of the court to receive evidence and decide the issue of liberty and on the propriety and dignity of the proceeding when the court is in session.

(d) There is no onus or burden of proof on either party. A practical approach considering the context of the case and evidence before the court will assist the court in using its discretion in determining security issues.

(e) When the issue of restraints is raised, be it by the Crown, defence or the Court itself, a hearing is required.

(f) Restraints in a courtroom should be the exception not the rule.

(g) The use of restraints must be decided on a case-by-case basis.

(h) The unnecessary use of handcuffs constitutes a civil assault.

(i) This Court can set its own guidelines on procedures surrounding the defendant being brought into the courtroom in restraints.

(j) Provincial statutes, including the Ontario Police Services Act do not supercede the Court’s authority to determine the issue of restraints.

In R. v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), Leggatt, LJ. at page 902 said:

They [Magistrates], not the gaoler, must decide whether a prisoner should be handcuffed in court. No prisoner should be handcuffed in court unless there are reasonable grounds for the apprehending that he will be violent or will attempt to escape. If an application is made that a prisoner should be handcuffed, the magistrate must entertain it.

Citing R. v. F.D.J.F., 2005 CanLII 18707 (ON CA) and R. v. McNeill, 1996 CanLII 812 (ON CA), Judge J.L. Joy paraphrased:

(1) Police and sheriff’s officers should bring prisoners into a court room free of all restraints unless they have reasonable grounds to believe the prisoner will be violent or will attempt to escape;

(2) If the Crown, the police or sheriff’s officers intend to present an in-custody accused in court in restraints, then the Crown must make an application requesting an order authorizing those restraints. The court must then conduct a hearing;

(3) Police legislation and regulations do not override the authority of the court; and

(4) A judicial decision is required to determine the issue.

Other decisions, such as R. v. Smith, [1996] O.J. No. 3671, R. v. McArthur, [1996] O.J. No. 2974, and R. v. Brown, [1998] OJ No 4682, also ruled that a blanket policy to have all prisoners appear in court in restraints was not lawful. Recently, in R. v. Fortuin, 2015 ONCJ 116, Justice Schreck in six paragraphs confirmed, yet again, that it is against the law for police or sheriff’s officers to present in-custody accused in restraints of any kind, whether leg shackles, handcuffs, or other restraint.

The main points that pertain to us from the Kalleo decision are:

  • police and sheriff’s officers have the responsibility to provide security within courtrooms, but within applicable legal principles. A policy of restraints on all in-custody accused cannot be used to replace a plan to provide appropriate levels of security. The authorities must base their security plan on the assumption that in-custody accused may appear in court without restraints;
  • if the police or sheriff’s officers have a particular concern about an individual in-custody accused, then they must advise the Crown and the Crown, if they conclude that the officers’ concerns have merit, may apply for a hearing on the use of restraints with that particular in-custody accused;
  • judges should give considerable weight to the views and expertise of the police and sheriff’s officers concerning particular in-custody accused, but deference to them is inappropriate. The issue of restraint in the courtroom is a matter for the judge to decide;
  • it is illogical for police or sheriff’s officers to use leg shackles, handcuffs or other restraints in court on in-custody accused for whom the Crown is recommending release, including the young, the elderly or the frail, unless there are specific grounds to believe that each individual person will be violent or attempt escape. Such an approach brings the administration of justice into disrepute;
  • lest there should be any doubt in this particular case, a blanket policy of presenting in-custody accused in leg shackles and handcuffs into court is illegal, may amount to a civil assault, and give rise to an award of damages. The person may also have other remedies under the Charter of Rights and Freedoms.

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Obstruct Peace Officer?…it’s all in the ‘Act’.

Although at the provincial court level, the principles discussed in this latest post have great merit. In R. v. Chanyi 2016 ABPC 7, Provincial Court Judge J.T. Henderson ruled that the accused cannot be convicted of obstruction of a peace officer in the execution of his duty contrary to s. 129(a) of the Criminal Code for refusing to produce vehicle documentation when being investigated for a minor accident, since such refusal is punishable under a provincial motor vehicle statute. Chanyi was charged with obstruction of a peace officer in the execution of his duty contrary to s. 129(a) of the Criminal Code, refusal to comply with a demand to provide a sample of his breath contrary to s. 254(5) of the Criminal Code, and with impaired driving contrary to s. 253(1)(a) of the Criminal Code.

Ms. Derhami was driving home from work in the City of Edmonton when she was involved in a minor motor vehicle collision which occurred when a white Ford F-150 truck struck her vehicle from behind. Ms. Derhami attempted to obtain the usual insurance information from the other driver and when she was not successful in getting this information, she called 911 to seek police assistance. An officer arrived at the scene of the collision and, after a brief conversation with Ms. Derhami, he approached the truck. The officer noted that there was only one person in the truck, a male who was in the driver’s seat (Chanyi). When he arrived at the truck, the officer noted that the ignition was on and the engine was running. The driver’s side window was partially up. The officer asked Chanyi to shut the engine off. No response was received. Instead, Chanyi simply continued to stare out the front windshield of the truck, without acknowledging the presence of police. The officer repeated his request 6 or 7 times before Chanyi finally shut off the engine, removed the keys from the ignition, and jammed the keys forcefully onto the seat beside him. When the truck was shut off, the officer asked Chanyi to provide his driver’s licence, registration and insurance. Chanyi did not comply with this request, but instead continued to look forward with his hands on the steering wheel. Chanyi then became angry, he was belligerent and began swearing. He then advised the officer that he would not provide the documents.

The officer called for backup to attend to assist in dealing with the driver. Shortly after placing the call, a second police vehicle arrived. The two officers then approached the truck and again asked Chanyi to provide his documentation. Chanyi was also warned at this time that if he did not provide the documents, he would be arrested for obstruction. Once again, Chanyi refused to produce the documentation. As a result, an officer opened the door of the truck and both officers pulled Chanyi from the truck. Once out of the truck, Chanyi became limp and the police officers eased him to the ground. During this process, Chanyi was not fighting with police and he was not resisting. When Chanyi was on the ground, an officer advised him that he was under arrest for obstruction. The officer then assisted Chanyi to his feet. During this process, the officer noticed that Chanyi was unsteady on his feet. The officer also noted that he had bloodshot eyes, had saliva on the side of his mouth, and noticed a smell of alcohol (liquor) when Chanyi spoke. While this was occurring, Chanyi continued to be belligerent. Based on the information he had accumulated to this point, the officer formed the opinion that the ability of Chanyi to operate a motor vehicle was impaired by alcohol and as a result, he arrested Chanyi for impaired driving. Before placing Chanyi in the back seat of the vehicle, a frisk search was conducted and the officer located Chanyi’s driver’s licence in his pocket. While this was taking place, Chanyi told the officer, “I’m not telling you nothing”.

The officer read the standard Charter rights. When asked if he understood those rights, Chanyi made a number of unresponsive statements including: “Do I understand that you are a sack of shit? Is that your question officer? Yes, I understand that you are a fucking sack of shit”. In response to the breath demand, Chanyi responded, “Please, can I breathe”, “Come on man, I am a fucking Canadian man, what is wrong with you”, “you fucking animals”, “of course, just get me the fuck out of this fucking car man”. After more of this behaviour back at the station, Chanyi refused to provide a sample of breath.

Fast forward, the Judge ruled that the officer did not have objectively reasonable grounds to demand a breath sample from the accused and therefore the s. 8 Charter rights of the accused were violated (I won’t get into that decision in this post). This post will discuss whether a charge of obstruction was available to the officer in this case? The officer was investigating a motor vehicle collision when he first encountered the accused. He was lawfully seeking information and documentation from the accused pursuant to s. 69(1) of the Traffic Safety Act, RSA 2000, c.T-6, as amended (the “TSA”), but had no grounds to believe that any Criminal Code offences had been committed. The accused had an obligation to identify himself to the officer and to provide the vehicle documents referred to in s. 69(1) of the TSA. Failing to do so constituted an offence under s. 157(1) of the TSA and made him subject to arrest under s. 169(2)(f) of the TSA and potentially liable to penalties under s. 7 of the Provincial Offences Procedure Act, RSA 2000, c. P-34.

The accused relied on the decision of the Supreme Court of Canada in R. v. Sharma, [1993] 1 S.C.R. 650. In Sharma, the accused was employed as a flower vendor in Toronto and was displaying his flowers for sale on a public street. A municipal By-law required that such merchants have a licence to carry on this type of business. The accused did not have the licence contemplated by the By-law. On discovering this, a police officer gave the accused a violation ticket and instructed him to pack up his goods and move on. The accused was told that he would be arrested for obstruction if he continued with the unauthorized sale of the flowers. When the police officer returned sometime later, the accused and his merchandise were still present. He was arrested and charged with obstruction. At trial he was convicted of the offence under the By-law and also of obstruction. Intermediate appeals were unsuccessful and the accused appealed to the Supreme Court of Canada. The Supreme Court unanimously concluded that the Municipal By-law was ultra vires and therefore ordered that the By-law conviction be set aside. Similarly, the Court concluded that an acquittal should be entered in relation to the obstruction because the acts constituting the obstruction were based on the interference with the police officers duty in relation to enforcing a By-law which was ultra vires.

Sharma was applied by the Ontario Court of Appeal in R. v. Hayes (2003), 65 O.R. (3d) 787. In Hayes, the accused was a motorcyclist who was stopped by a police officer at a stop check which had been set up to target members of a motorcycle club which was holding its summer gathering in the area. One of purposes of the stop was to ensure highway safety by checking for compliance with highway traffic legislation. Police asked the accused to remove his helmet for inspection. He refused to do so. The officer warned him that he would be charged with obstructing a peace officer if he did not comply. He persisted in his refusal, and was arrested and charged with obstruction. The Court in Hayes noted that the accused had an obligation under the Provincial highway traffic legislation to remove his helmet and turn it over to police for examination. The penalty for non-compliance was a $1,000 fine. Furthermore, the legislation provided an enforcement mechanism by which police could provide written notice for an inspection. The Court set aside the conviction for obstruction and entered an acquittal because the statutory obligation to submit the helmet for inspection addressed precisely the same misconduct that formed the basis of the charge of obstruction.

More recently, Justice Paciocco in R. v. Yussuf, 2014 ONCJ 143 considered the law as described in Sharma and in Hayes. In Yussuf, the accused was stopped by police for distracted driving — driving while talking on a cell phone. He refused to identify himself as was required by the Ontario Highway Traffic Act. As a result, he was arrested for obstruction. The Court noted that police could have fulfilled their duty by simply charging Mr. Yussuf with refusing to identify himself contrary to section 33(3) of the Highway Traffic Act, and then immediately arresting him without warrant under the authority of section 217(2) of that Act and after establishing his identity in that way, charge him with the initial offence. The ONCJ said that Mr. Yussuf’s refusal to identify himself was to be remedied by charging him and arresting him contrary to the Highway Traffic Act, not the Criminal Code.

The Crown cited the decision of the Ontario Court of Appeal in R. v. Waugh, 2010 ONCA 100 in support of its position that an obstruction charge was appropriate and available to the officer. However, Waugh discussed the appropriateness of an obstruction charge where the interfering conduct of the accused person goes beyond “precisely the same conduct” that is prohibited or mandated by the Provincial legislation or the By-law.

In the end, Judge Henderson in Chanyi concluded that the decision of the Supreme Court of Canada in Sharma, and the authorities which interpret Sharma, make it clear that when police are exercising their duty pursuant to Provincial legislation or a By-law and where that legislation provides for a means of enforcement, then a suspect who simply refuses to comply with police demands that he do what the legislation provides, cannot be properly subject to an obstruction charge pursuant to s. 129(a) of the Criminal Code. Instead of invoking a criminal sanction, police are restricted to pursuing the means of enforcement specified in the Provincial legislation or the By-law. However, if in their attempts to pursue the specified means of enforcement, police are interfered with by the actions of the suspect, then an obstruction charge is appropriate provided that the conduct complained of is not “precisely the same conduct” as that prohibited or required by the legislation. The Judge decided that in these circumstances, police did not have the authority to proceed with the Criminal Code charge of obstruction contrary to s. 129(a). Instead police were restricted to the enforcement provisions of the TSA which included arrest under s. 169 of the TSA and a violation ticket for non-compliance with the obligation to produce the required documentation.

As officers, we have to know our regulatory legislation thoroughly, as well as the Criminal Code, and that is not a simple task. Similar provisions exist in other provinces in these types of situations (e.g. ss. 232 and 248 of the HTA, PE; ss. 97 and 261 of the MVA, NS; ss. 127 MVA, NB, and 119 POPA, etc., to name but a few).

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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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Reasonable and probable grounds to arrest

Can v. Calgary Police Service [2014] A.J. No. 1112 (C.A.) – an Alberta Court of Appeal has examined the threshold to be met for the “reasonable and probable grounds” standard, or to us officers after the 1985 era, the “reasonable grounds” standard. This will serve as a reminder to us experienced officers, while at the same time, hopefully I can assist the recruits in furthering their understanding of this concept.

The Supreme Court of Canada set out the governing test in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250-1:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

Section 495(1) of the Criminal Code stipulates that a peace officer may effect a warrantless arrest under a number of scenarios. One, set out in s. 495(1)(a), is that a “peace officer may arrest without warrant … a person who … on reasonable grounds … he believes has committed … an indictable
offence”.

But what degree of certainty is required before peace officer X can be held to believe that A has committed an indictable offence? If 100 percent certainty is not necessary, what lesser degree of certainty is required before one can conclude that X believes A has committed an indictable offence? Is it enough if X believes that it is more likely than not — fifty-one percent degree of certainty — that A has committed an offence? Is it enough if X is moderately certain — a degree of certainty approaching fifty percent — that A has committed an indictable offence? Is it enough if X suspects that A has committed an indictable offence?

Will the state allow a peace officer to arrest a person only if a fact pattern exists which allows a reasonable person to conclude that it is at least more likely than not that the person has committed a criminal offence? Professors Coughlan and Luther, in Detention and Arrest 76-78 (2010) are satisfied that this is the standard for a lawful warrantless arrest in Canada:

In the arrest context, the standard does not require so high a standard as prima facie case. However, it does require that the thing believed be more likely than not, that it be probable. … Many courts, the Supreme Court among them, have continued to use the phrase “reasonable and probable” when speaking of the required grounds for arrest. … It has occasionally been suggested that “reasonable grounds” in the arrest context can be satisfied by something less than probability, but this interpretation arises from failure to pay attention to context. The source of the confusion is a statement by the Supreme Court in Mugesera v. Canada … in which the Court said that reasonable grounds to believe required less than the civil standard of proof on the balance of probabilities. To apply this in the arrest context is to ignore that it is a statement about the standard in the Immigration Act for refusing entry to suspected war criminals, not a standard in the Criminal Code … There is no basis for thinking that it overrides [the Supreme Court’s] statements in Storrey, Debot, Barren v. Canada, or other cases which maintain the probability requirement.

A fifty-one percent degree of certainty is the starting point of the high degree of certainty sector of the spectrum. …

This point on the scale measuring likelihood of criminality — a high degree of certainty — would accord considerable weight to the liberty value. At the same time, settling on this measure as opposed to a less onerous standard, impairs to some extent the community’s ability to vigorously pursue law enforcement objectives. Most jurists would be reluctant to adopt such a demanding standard for a lawful warrantless arrest.

The Supreme Court of Canada has never stated with precision the degree of certainty that justifies an arrest under s. 450(1)(a) of the Criminal Code (revised to s. 495(1)(a) CC). Generally, speaking, it has been content to tell us what it is not.

A review of the Supreme Court of Canada’s opinions on warrantless arrest demonstrates that there are only two possible answers to how certain must the arrestor and the objective evaluator be before an arrest under s. 495(1)(a) of the Criminal Code is lawful. It is either a moderate or a high degree of certainty. There is no reason to argue that the extremely low, low or very high degrees of certainty have any judicial support.

First, the arrestor must believe, at the time the arrest was made, that there is (a) a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence. This is a subjective assessment and a question of fact. …

The second condition exists if a reasonable person, with the arrestor’s training and experience and aware of the facts known to the arrestor, would conclude that (a) there is a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence.

The existence of the second condition is a question of law and an objective evaluation. …

And as the Honourable Thomas W. Wakeling stated in this decision:

But I am troubled by the fact that the Supreme Court of Canada has not clearly articulated the standard it favors for a warrantless arrest. …”

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Does a Charge of “Keep the Peace and be of Good Behaviour” Require a Contravention of a Criminal Statute?

R. v. Smith 2014 NSPC 44 – Smith was placed on probation on the 16th day of December, 2012. He was ordered, among other things, that he had to keep the peace and be of good behaviour. On the 6th day of June, 2013, Smith agreed through intermediaries to meet for a consensual fight with another young man. Smith and another young man arranged to meet at what appeared to be a local ball field in a residential area of Parrsboro, Nova Scotia. Two separate videos were introduced from two separate videographers showing Smith aggressively approaching the other man and then striking him. The other individual fell to the ground, but proceeded to get back up saying, “Is that all you got?” He then proceeded to charge at Smith. Smith slapped the other man in the face several times, knocking him to the ground. The accused then backed off retreating to his vehicle and issuing the challenge, “Does anybody else want to have a f!!! go?” No one else took up the invitation.

Someone in the area called 911 during the fight to report what was occurring. In addition, there were at least eleven other people that observed the activities that took place that day. At least two of those individuals recorded videos of the encounter on their phones. Some of the bystanders shouted and at least one indicated that the other person involved in the altercation with the accused had had enough. The police became involved and, while no other charges were laid, the authorities did charge Smith with breaching his probation by failing to keep the peace and be of good behaviour. Smith argued that an individual cannot be convicted of a breach of the term of probation to keep the peace and be of good behaviour without committing a criminal offence. The Crown disagreed and argued that a failure to be of good behaviour can refer to “conduct that falls below the conduct expected of all law abiding and decent citizens”.

Provincial Court Judge Paul Scovil conducted an extensive review of the authorities regarding the concept of “keep the peace and be of good behaviour”. In R. v. Docherty [1989] S.C.J. No. 105, the Supreme Court of Canada considered whether then Section 666(1) of the Criminal Code was to be interpreted as an offence requiring its own mens rea or as an offence which automatically follows upon a conviction for any Criminal Code offence or other deliberate act which constitute a violation of the conditions of a probation order. Section 666(1) was the precursor to Section 733.1. Section 666(1) should be noted as having the word “willfully” as part of the offence as opposed to the term “without reasonable excuse” as contained in the now 733.1.

Justice Wilson in her decision in Docherty considered the Newfoundland Court of Appeal decision in R. v. Stone (1985), 22 C.C.C. (3d) 249. At paragraphs 21-22, the Court stated as follows:

Steele J. proceeded from the view, expressed at p. 255, that the two terms, “keep the peace” and “be of good behaviour”, impose “separate and distinct conditions though in certain circumstances may overlap”. At page 256, he draws the following distinction:

  • When considering whether there has been a failure “to keep the peace”, one is conscious of public opinion and its perception of peace and good order and what does or does not offend that nebulous standard. If the issue is an individual’s good behaviour, the emphasis shifts to a more personal analysis of his conduct. A breach of an undertaking “to keep the peace” means a disruption or the upsetting of public order whereas a breach of a bond of “to be of good behaviour” means some act or activity by an individual that fails to meet the fanciful standard of conduct expected of all law-abiding and decent citizens. It is quite possible, as I have already said, that one can fail to be of good behaviour yet not commit a breach of the peace. It is probably a matter of degree. We are only concerned with the second aspect of the statutory condition, namely, “to be of good behaviour”.

Steele J. goes on to say at p. 257 that a conviction for breach of a federal, provincial or municipal statute “may be — perhaps usually is — but not necessarily” a failure to be of good behaviour. Conversely, conduct which does not violate any statute may nevertheless breach the condition to keep the peace and be of good behaviour. The accused in that case was found not to have had the required intent for the underlying offence, i.e., the offence of fraudulently obtaining food. Nevertheless, his behaviour at the restaurant was found to fall short of “good behaviour”. The stated case did not raise the issue of the requisite mens rea for wilful failure to comply with the probationary condition to “be of good behaviour”, and Steele J. did not deal with it. By upholding the conviction under s. 666(1), however, he implicitly affirmed the trial judge’s finding that the appellant had the requisite mens rea for that offence.

While the decision in Docherty mainly considered what was meant by “willfully”, the paragraphs cited from Stone appeared to accept that the concept of “keep the peace” was a separate one from that of to “be of good behaviour”. That line of thinking pervades subsequent case law.

Judge Scovil then examined R. v. Johnston [1993] M.J. No. 539 (Man. Q.B.), a case which was factually similar to the matter before him. In Johnston, the accused had followed another individual from a building out into the public where a fight ensued. The trial judge in that case determined that it was a voluntary fight between the two combatants. The accused was charged with failing to comply with his probation order, namely: “keep the peace and be of good behaviour”. Justice Monnin’s decision contained a review of Stone and Docherty, but only tangentially considered the question of the difference, if any, between “keeping the peace” and “being of good behaviour”. At paragraph 4 of that decision, Justice Monnin stated as follows:

In dealing with the first ground of appeal, the appellant argues that for the offence to be complete, there must be a failure of both keeping the peace and being of good behaviour. In addition, the appellant argues that good behaviour is to be read as lawful behaviour because that is an objective standard while if the test was less than lawful behaviour, the test would of necessity become subjective and thereby not measurable in a precisely defined way.

 Justice Monnin spoke of there being failures of both “keeping the peace” and “being of good behaviour”. He did not go on to consider what exactly that would mean. He did go on, however, to find that the consensual fight in Johnston was an activity such as to justify a conviction based on as he said, “at the very least, the appellant breached the public peace”. His comments subsequent to that seem to state that it was on the first ground of “keeping the peace” as opposed to “being a good behaviour”. He stated at paragraph 10:

 I do not have to deal with the concept of good behaviour because of my finding but, if I had, I think that I would be hard-pressed to state that a public fight, even though maybe consensual, can be considered as good behaviour. A consensual fight might not be an offence but it is clearly not a behaviour pattern for adults that is condoned or sanctioned in a community of people living together.

In R. v. S.S. [1999] N.J. No. 230, the Newfoundland Court of Appeal reviewed the question of what is meant by “keeping the peace and being of good behaviour” in relation to breach of a probation order. The accused in that matter was charged under the Young Offenders Act with breach of probation when he had to be removed from his class at school due to disruptive behaviour. The accused was defiant of authority, disrespectful of rights of property, used foul language, and acted in such a manner that disturbed and disrupted the orderly operation of the classroom. S.S. had also engaged in a physical altercation with his teacher. The position of the defence in the matter was that in law, the scope of an obligation to keep peace and be of good behaviour did not extend to non-criminal behaviour in the school. The Newfoundland Court of Appeal considered the conflicting positions expressed in prior case law. The Court concluded that the concept of failure to “be of good behaviour” in the statutory conditions in the probation order is limited to noncompliance with legal obligations in federal, provincial or municipal statute and regulatory provisions, as well as obligations in court orders specifically applicable to the accused. It does not, however, extend to otherwise lawful conduct if that conduct falls below some community standard expected of all peaceful citizens.

Judge Scovil proceeded to examine other cases out of Ontario and Newfoundland, but for the sake of simplicity, I will summarize what Judge Scovil decided:

“A breach of the peace occurs where there is an actual assault, public alarm, or an excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence. The core notion of a breach of the peace is a violent disruption or disturbance of the public tranquility, peace or order. … It has also been described as “unacceptable conduct that unduly disrupts and violates public peace and good order” without any emphasis on any particular crime. …

I find that the term “keep the peace and be of good behaviour” has two distinct components. To be of good behaviour is limited to noncompliance with legal obligations found within federal, provincial or municipal statutory and regulatory obligations. I note that not necessarily all infractions of statutory obligations will trigger a breach of good behaviour. Breaches related to keeping the peace concern behaviour that is violent and disturbing to the tranquility of the public.

Here the accused engaged in public brawl that was of a clear violent action. It occurred in full public view causing obvious disturbance to those in the area. The accused failed in his obligation to keep the peace and in no way was he operating within the rehabilitative framework of his probation order. Accordingly, I find him guilty as charged.”

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Medical Information and the Police Investigation

I recently had the opportunity (or misfortune, depending upon how you want to look at it) to spend some time with a number of nurses that were visiting my wife. Over time, as in most cases, the topic of the evening came around to “shop-talk”. I was surprised when a few of the nurses asked me to what extent we (police) can ask them personal and medical information of a patient in their care, the same person currently under investigation by us (e.g. impaired driving investigation). I was equally surprised when they said they often feel obligated to tell the officer the information, although they know there are privacy concerns.

I summed it up by saying that just because we get the information (from them), it does not mean we are legally entitled to have it. This years police cadets have heard me say this phrase on numerous occasions during our sessions on search and seizure this year. I am surprised that experienced officers are still taking the risks associated with asking information where there is a reasonable expectation of privacy and expect to use this information to form grounds for a breath or blood demand, or in a warrant application. I would hate to be the officer on the witness stand when defence counsel alludes, even in the slightest, that the information was illegally obtained and suggests that the officer used this information to formulate reasonable grounds.

This is not a new issue by any stretch of the imagination, and given the volumes of case law that have followed since, it warrants a quick review if this practice is still occurring. I will touch on one case that most others have cited since then.

R. v. Dersch [1993] S.C.J. No. 116 – the accused was charged with criminal negligence causing death and bodily harm and having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing death and bodily harm. The motor vehicle he was operating had crossed the centre dividing line of a highway and collided head-on with another vehicle. The driver of the other vehicle was killed and three other persons, including the accused, were injured. A police officer at the accident scene observed a smell of alcohol from the accused and noticed that his eyes were glassy and bloodshot. The accused was taken to a hospital. The doctor who examined him attempted to insert an intravenous line into the accused’s arm, but the accused objected in strong language and refused to have a blood sample taken under any circumstances. The doctor requested the assistance of a surgeon present, who took a blood sample while the accused was unconscious, for medical reasons. One vial of the blood was used for a blood alcohol test. When the accused was subsequently asked by the police officer who had accompanied him to the hospital to provide a blood sample, he refused. In response to a written request by police, the doctor prepared a medical report which included the results of the blood alcohol test. A search warrant was later issued for the blood sample taken. The blood sample and blood alcohol test results were ruled admissible at the accused’s trial following a voir dire and the accused was convicted on all four counts. The Court of Appeal upheld the convictions. Defence appealed to the SCC, who allowed the appeal and directed a new trial.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:

Participation in the emergency treatment of the accused did not in itself render the physicians agents of government for the purposes of s. 32 of the Canadian Charter of Rights and Freedoms, nor were they acting as agents of government in taking the blood sample in this case solely for medical purposes. It is nonetheless clear that some of the physicians’ conduct was wrong. The blood sample taken despite the accused’s unequivocal instruction to the contrary was improper, and the provision to the police of specific medical information about the accused without his consent violated the doctor’s common law duty of confidentiality to the accused. Since the accused had a reasonable expectation of privacy in respect of the information revealed, the obtaining of that information by the police in the circumstances is analogous to a search or a seizure within the meaning of s. 8 of the Charter. The information was obtained without a warrant, rendering the search by the police prima facie unreasonable, and the Crown has not satisfied the burden of rebutting this presumption of unreasonableness. It has not been demonstrated that there is any basis in statute or under the common law for this search and seizure, nor was there any emergency in the sense of the evidence being in danger of being destroyed if the time were taken to obtain a warrant. In view of this conclusion, it is not necessary to determine whether there was also a violation of the accused’s rights under s. 7 of the Charter. Since it has not been established that there is any basis under statute or the common law for the conduct of the police, that conduct cannot be said to be “prescribed by law” within the meaning of s. 1 and therefore cannot be justified thereunder.

The net result of the Charter violation by police in this case was to take advantage of the physicians’ improper conduct in taking the blood sample contrary to the patient’s specific instructions. When this factor is considered together with the seriousness of the Charter violation and the importance of guarding against a free exchange of information between health care professionals and police, the impugned evidence should be excluded pursuant to s. 24(2) of the Charter. In the absence of the evidence of the accused’s blood alcohol level, there is no evidence sufficient to sustain convictions on the care and control charges, which should be dismissed. While there remains evidence to support the criminal negligence charges, this is not an appropriate case in which to apply the curative provision, and a new trial is directed.

In short, why obtain information illegally from the nurse or doctor; we obviously cannot use this information to formulate reasonable grounds for a demand or in a search warrant application? Getting the information in this way opens us up to attack from defence counsel and runs the high risk of losing the case. We have to get our grounds legally, which is not often the easiest route, but having a reason for doing something does not make that thing reasonable (or legal) to do in all cases.

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Corroboration and grounds to arrest based upon an informant’s information

A recent case, R. v. Day 2014 NLCA 14, out of the Newfoundland and Labrador Supreme Court – Court of Appeal, has prompted me to post a summary of some judicial decisions that may be of interest to the officers that handle informants (human sources) and then use that information to formulate reasonable grounds to arrest the suspect.  I won’t get into the facts of the case; instead I will discuss the points and issues that were brought up in the appeal that are of importance to us in the field.

No discussion on informants can begin without first mentioning the value of informants to the enforcement of criminal law in this country that has long been recognized and respected (R. v. Scott, [1990] 3 S.C.R. 979, pp. 993-994; and R. v. Leipert, [1997] 1 S.C.R. 281, para. 9). However, informant information can be variable in its reliability, and care must be taken by the police not to act on it without thought or indifference. This was recognized by the Supreme Court in R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421; and R. v. Greffe, [1990] 1 S.C.R. 755. In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval Lamer C.J.’s adoption of Martin J.A.’s statement in R. v. Debot (1986), 30 C.C.C. (3rd) 207 (Ont. C.A.), a case involving the lawfulness of a warrantless arrest, as the test for assessing confidential informer’s information:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search. … Highly relevant … are whether the informer’s ‘tip’ contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

Justice Sopinka went on to say, at page 1456, that:

“[h]earsay statements from an informant can provide reasonable and probable grounds to justify a search” but warned that evidence of a tip from an informer by itself is insufficient to establish reasonable and probable grounds.”

He concluded at page 1457 that:

“[t]he reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances'”, and said “[t]here is no formulaic test as to what this entails. Rather, a court must look to a variety of factors including: 1) the degree of detail of the ‘tip’, 2) the informer’s source of knowledge, and 3) indicia of the tipster’s reliability”.

Debot directs that police must attempt to confirm details in an informant’s tip. However, in doing so, the court said it is not necessary to confirm each and every detail, although the level of verification required may be higher in cases where the informant’s own credibility cannot be assessed (page 1172). Both Garofoli (paragraph 67) and Debot (pages 1168 to 1171) stressed that the credibility of the informant and the source of his or her information are very important.

The next thing to be examined in the context of arresting the suspect based upon the information received by an informant is the case which each and every officer should have imprinted in their memory: R. v. Storrey, [1990] 1 S.C.R. 241. In Storrey, at para. 17 the Supreme Court of Canada interpreted what is now paragraph 495(1)(a) and held that the reasonable grounds for arresting a person without a warrant encompasses both 1) a subjective belief on the part of the police that the person has committed or is about to commit an indictable offence, and 2) that the subjective belief must be “justifiable from an objective point of view.” The Storrey test, as it has become known, was summarized by Welsh J.A. of the NFCA at paragraph 19 of R. v. Warford, 2001 NFCA 64, 207 Nfld. & P.E.I.R. 263:

The proper test is twofold: (1) did the police officer, from a subjective perspective, have reasonable and probable grounds for arresting [the accused], and (2) could a reasonable person in the position of the officer conclude there were reasonable and probable grounds for the arrest?

The present case, Day, cited several cases that I will summarize as follows:

  • Provincial Court Judge Fradsham made a good logical point in R. v. Hilts, [1997] A.J. No. 516, (1997) 203 A.R. 161 at paragraph 30:

“The “anticipated pattern” in this case was the accused driving to High River in a particular motor vehicle. The fact pattern occurred. However, can one say that those two facts give any credence to the allegation of criminal activity by Mr. Hilts? In my view, if the police place reliance on an informer’s “tip” because some facts in that “tip” have been verified by them, then that “verified” information must be material to the criminal activity alleged by the informant. Otherwise, the exercise of verification is really an exercise in bootstrapping. Unverified allegations of crime are not bolstered because they are made with verified allegations of unrelated, innocent facts.”

  • A similar view was set out by Allen J. in R. v. Mori, [2012] O.J. No. 2837, 2012 ONSC 3433 at paragraph 56:

“They confirmed Mr. Cutajar’s identity, his residential address, and his telephone number. Although accurate, that information does not assist with predicting a criminal offence.”

  • And finally, the dissenting reason given by Justice Malcolm Rowe in this case:

The Crown has conceded that what the police had was insufficient to properly obtain a search warrant for Mr. Day’s residence. They now assert it was sufficient to arrest him. Must not the grounds for laying hands on a citizen, hand cuffing, searching and confining him be greater than for entering his house? Must they not at least be equal? I would say “yes”.

There you have it.  Some things to consider if you are basing your RGs (or RPGs for the older officers out there) to arrest based upon source information.

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Trial Judge’s decision not to exclude breath samples upon Grant analysis following a s. 10(b) Charter breach overturned and a new trial was ordered.

Surprisingly, I am still getting questions regarding the “Prosper Warning” from experienced officers in the field when this has been law and practice since 1994. I am not sure if there has been an issue with training in previous years during recruit training or agency training, or misinformation circulating due to the practice of not even having the “Supplemental-Warning” on the pre-printed Charter/Caution cards given to us by some of our agencies and officers not taking it upon themselves to ensure they have one.  Whatever the issue, in my role, I can only assist with the educational, training, and informational aspect of it, and I have no control over the latter (warning not included in the pre-printed cards). In the end, as officers, we are ultimately responsible for our legal knowledge and ensuring we have this “Supplemental-Warning”, for example, to use.  After-all, we are the ones on the witness-stand testifying, having to articulate and justify our actions on a daily basis, and being scrutinized by the courts in the process.  It’s not easy by no means, so if I can help IN ANY WAY, I will do my best when asked.

Hopefully, no one has been offended by my statements above, but I feel passionate about educating officers on such issues so that we don’t lose cases on cross-examination (or appeal) when a good defence counsel calls us on our actions, or non-actions, when maybe it could of been avoided if we had the training and information given to us to draw upon…..that’s now within my role and hopefully I can live up to the expectations. On to the case that coincidentally was decided just as I’ve been getting questions about this issue that will hopefully reaffirm why I feel this information needs to get out there to each of us. This is by no means meant to make anyone look bad or offend anyone, but rather for educational purposes and information like all my blog posts.

R. v. Deleersnyder 2014 ONSC 3207 – in this summary conviction appeal, the appellant appealed his conviction on a charge of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code, made by the Ontario Court of Justice.

On February 19, 2009 at 2:28 a.m. the appellant was stopped by an officer with the Sarnia Police Services. The appellant at the time was operating his motor vehicle. As a result of information received by the officer from the appellant, a demand was made pursuant to which the appellant provided a sample of his breath into an approved screening device. The analysis of the sample registered as a “failure” and at 2:35 a.m., and the officer arrested the appellant for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Following his arrest, the appellant was advised of his rights to counsel at 2:37 a.m. The appellant indicated that he understood the rights given and that he did not wish to contact a lawyer. The arresting officer made a demand for samples of the appellant’s breath for the purposes of analysis and the appellant was taken to the Sarnia Police Headquarters at 2:43 a.m., arriving at 2:49 a.m.

On his arrival at the police station, the appellant was paraded by the arresting officer before the supervisor, a Staff Sergeant, at 2:55 a.m. The arresting officer advised the Staff Sergeant as to the time and reason for the appellant’s arrest, that the appellant had been given his rights to counsel, and that the appellant had declined a lawyer. The arresting officer conceded during cross-examination that he had heard the Staff Sergeant ask the appellant if the appellant wished to call a lawyer, to which both officers heard the appellant’s response of “not yet”. Neither officer asked the appellant anything about contacting a lawyer or to clarify the words spoken by the appellant in response to the question from the Staff Sergeant, nor did either officer advise the appellant that the police were required to hold off attempting to obtain evidence from the appellant until the appellant had had an opportunity of contacting counsel (Prosper-Warning).

The arresting officer turned the appellant over to the breath technician at 3:04 a.m. The arresting officer advised the breath technician in the presence of the appellant as to the time and reasons for the appellant’s arrest and that the appellant had been given his rights to counsel and that the appellant had declined a lawyer. The arresting officer did not advise the breath technician that the appellant had replied “not yet” to the Staff Sergeant’s question about contacting a lawyer.

It was the Staff Sergeant’s evidence that in accordance with the usual procedure, he advised the appellant of his rights to counsel and he asked the appellant if he understood his rights to counsel to which the appellant answered that he did. He asked the appellant if he wished to contact a lawyer and the appellant replied “not yet” to him. It was the Staff Sergeant’s evidence that he took this to mean that the appellant did not want to speak to a lawyer, but perhaps he did later. The Staff Sergeant did not seek any clarification from the appellant as to the words “not yet”. Further, the Staff Sergeant did not discuss the appellant’s response “not yet” with the arresting officer, who was present. Further still, the Staff Sergeant did not relay this response to the breath technician. The Staff Sergeant admitted that the appellant’s answer “not yet”, was something that should be given to the technician who was doing the breath test. Having admitted that he should have advised the technician about the appellant’s answer, the Staff Sergeant did not explain why he did not inform the breath technician about the appellant’s answer “not yet”.

It was the arresting officer’s evidence that the testing procedure conducted by the breath technician took until 3:31 a.m. During this time, the arresting officer remained in the breath room, within earshot of the appellant and the breath technician, and during that time the arresting officer did not hear anything from the appellant about contacting a lawyer.

It was the breath technician’s evidence that after he took custody of the appellant, he gave the appellant his rights to counsel. The appellant stated that he understood the rights given to him and that in response to a question from the breath technician as to whether he wished to call a lawyer, the appellant stated that he did not wish to call a lawyer. It was also his evidence that at no time while the appellant was in his custody did the appellant ask for a lawyer. Although the breath technician conceded that he did not have a note as to the precise words spoken by the appellant in response to the question as to whether the appellant wished to speak to counsel, he was clear that the appellant would have been given an opportunity to contact counsel had the appellant requested to do so.

It was the appellant’s evidence that he was reasonably confident that he had told the breath technician that he did not have a lawyer rather than telling the breath techncian that he did not wish to call a lawyer. The evidence of the breath technician contradicted the appellant; it was the breath technician’s evidence that the appellant had indicated that he did not wish to call a lawyer. Further, it was the appellant’s evidence that he had not been told by the breath technician that there was a 1-800 number available to call duty counsel. In his evidence, the appellant conceded that he had not asked the police to assist him in contacting counsel. The appellant testified that he had been treated decently throughout this process. The appellant agreed that he could have had a private call to a lawyer if he wished to contact somebody, but that he had refrained from doing so because he was nervous and upset and he did not want to say anything because he did not know what to do.

The certificate of analysis as to the appellant’s breath samples, as completed by the breath technician, indicated results of 120 milligrams of alcohol in 100 millilitres of blood for both breath samples.

The main issue on appeal related to the first of the Grant factors: the seriousness of the Charter – infringing state conduct. The central argument advanced by the appellant was that both the Staff Sergeant and the arresting officer were aware of the appellant’s “not yet” response given to the Staff Sergeant in response to the question as to whether the appellant wished to contact a lawyer now. The appellant submits that the “not yet” response did not constitute a waiver by the appellant of his rights to counsel, and created an obligation on both officers to “hold off” on the process of obtaining breath samples until the appellant had an opportunity to contact a lawyer. Further, the appellant submits that neither officer informed the breath technician as to the “not yet” response; but rather the arresting officer had indicated instead that the appellant had waived his right to counsel (referring to the appellant’s response while at the roadside).

In relation to credibility, the trial judge concluded that the appellant’s evidence on the voir dire was vague, lacking in detail and not reliable. The trial judge found that the evidence of all three police officers was consistent and the trial judge accepted their evidence. The ONSC ruled there was no basis in this appeal to disturb those findings. The trial judge found that the appellant’s response of “not yet” to the Staff Sergeant’s question as to whether he wished to contact a lawyer now, was ambiguous and did not constitute a waiver by the appellant as to his s. 10(b) right to counsel. This led to the trial judge’s further findings that: the Staff Sergeant ought to have cleared up the ambiguity and he did not; that although the primary responsibility to clean up this ambiguity fell to the Staff Sergeant, that the arresting officer should have cleared up the ambiguity and he did not do so. The trial judge accepted what the arresting officer told the breath technician about the appellant’s arrest, including him advising the breath technician that the appellant had declined his right to counsel at the roadside. In examining the fact that although the breath technician was not made aware of the “not yet” response by the appellant to the Staff Sergeant, the trial judge considered the fact that the breath technician independently advised the appellant of his right to counsel and that the appellant declined. Specifically, the trial judge considered whether the appellant’s response to the breath technician constituted a waiver of his right to counsel. The trial judge concluded that there was no waiver by the appellant stating as follows:

… While in other circumstances Mr. Deleersnyder’s response to [the breath technician] would constitute a waiver of the right to counsel, it cannot here. [The arresting officer and the Staff Sargent] had an obligation to advise the accused of their obligation to hold off on the next step in the investigation. This is the law according to Regina v. Prosper, a decision of the Supreme Court of Canada which creates three duties on the police:

(a) the duty to inform of the right of counsel,

(b) the duty to give a reasonable opportunity to consult counsel, and

(c) the duty to hold off in eliciting further evidence from an accused who has expressed a desire to consult counsel until such times as they have had that opportunity.

As an aspect of this latter duty, there is an additional component where an accused asserts the right to counsel and then indicates the change in that position. As stated by Mr. Justice Lamer in Prosper, and I quote:

At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

The trial judge then considered the failure of the police to hold off on further investigation, as follows:

… After advising Mr. Deleersnyder of his right to counsel, [the breath technician] received what appeared to him to be a clear waiver of the right to counsel. Since there was no clear waiver in response to the [Staff Sergeant’s] question, Mr. Deleersnyder should have been told by [the breath technician], or by someone, of the obligation on the police to hold off in the next step of the investigation. …

The trial judge found that the failure of the police to notify the appellant of this additional obligation to hold off was a violation of the appellant’s s. 10(b) right based on R. v. Prosper, [1994] 3 S.C.R. 236 (S.C.C.). Having found a violation of the appellant’s s. 10(b) right to counsel, the trial judge relied on the fact that the appellant waived his right to counsel at the roadside, and that the police had therefore complied with the appellant’s Charter-protected right to counsel. The trial judge reached this conclusion by finding that the Staff Sergeant, and also the breath technician, had no obligation to advise the appellant as to his right to counsel. The trial judge viewed the steps taken by the Staff Sergeant in advising the appellant of his right to counsel only “as a precautionary measure”. The trial judge reasoned that this step was indicative of a respect for the Charter-protected right of the appellant. The trial judge characterized the failure of the Staff Sergeant and the arresting officer to clarify what the appellant meant by “not yet”, as more indicative of inadvertence rather than an act showing “flagrant disregard” for the appellant’s rights.

The ONSC said with respect to a detainee’s waiver, once a detainee asserts a right to counsel, there must be a clear indication that the detainee has changed his or her mind and the Crown bears the burden of establishing an unequivocal waiver: R. v. Prosper, at para.45. With respect, Justice V. Mitrow J. of the ONSC found that the trial judge’s conclusion that the police conduct was inadvertent and on the lower end of the spectrum of seriousness to be unreasonable. According to Justice Mitrow, the trial judge focused on the informational aspect of the state’s obligation towards the appellant’s s. 10(b) right to counsel. This occurred when the trial judge considered that after declining his right to counsel at the roadside, the appellant was later advised of that same right by both the Staff Sergeant and the breath technician even though there was no obligation to do so. The trial judge, in effect, found that this conduct mitigated the failure of the police to properly respond to the “not yet” statement by the appellant, leading the trial judge to find that the police conduct was inadvertent. The trial judge, in emphasising the informational component of the appellant’s right to counsel, gave insufficient or no consideration to the breach of the state’s obligation regarding the implementational component of the appellant’s s. 10(b) right.

Justice Mitrow said the trial judge’s finding “… that there was no need for any further advice by the police with respect to the Charter of Rights” was unreasonable given the failure of the Staff Sergeant and the arresting officer to properly respond to the appellant’s “not yet” response, and their failure to tell the appellant of the police obligation to “hold off”. In R. v. Grant, [2009] S.C.J. No. 32 , at para. 74, it was noted that state conduct resulting in Charter violations varies in seriousness from “inadvertent or minor violations” at one end of the spectrum to wilful or reckless disregard of Charter rights at the other end of the spectrum. Justice Mitrow said the totality of the aforementioned conduct, at least on the part of the Staff Sergeant and the arresting officer, was far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggested that the police were viewed as acting in good faith, which Justice Mitrow found to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence or wilful blindness cannot be equated with good faith: R. v. Grant, supra at para.75.

In view of the conclusion reached on the ground of appeal in relation to the seriousness of the police conduct, Justice Mitrow found that the appeal should be allowed and the conviction quashed, and a new trial was ordered before a different judge in the Ontario Court of Justice at Sarnia.

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If an officer was not lawfully on the premises of the accused’s and is subsequently assaulted, the officer cannot be said to be “in the execution of his duty”

R. v. Zargar 2014 ONSC 1415 – this case was interesting in that it touched upon alot of the common law and statutory authorities that we use for entry into private premises, and while this case is out of Ontario, the principles discussed in this case have applications throughout Canada.

One of the officers involved had been a Toronto police officer for “about five years” at the time of trial. He and his partner attended at the Appellant’s condominium unit in downtown Toronto in response to a noise complaint. The officers were in uniform and they arrived at the building at about 4:00 a.m. The complainant was the building security guard and he advised the officers that he had attended at one of the units in the building and had asked the male resident to turn down the music. There had been ongoing difficulties with this resident, according to what the security guard told the officers, but they were not advised of any security concerns. The officers proceeded to the eighth floor. They could hear music coming from the unit in question as they got off the elevator. They knocked on the door and the Appellant answered. The Appellant advised the officers that he was the owner of the unit and a “discussion” or series of questions and answers ensued. The officer thought that the Appellant was “confrontational” because he replied “what for” when he asked for his identification. The Appellant had simply identified himself as the owner of the unit, but he would not give his name. The other officer explained that the officers had received a complaint to the effect that the security guard had already told the Appellant once to turn down the music as he was disrupting other residents and again the officer asked the Appellant for his identification and the Appellant “again took exception” to this request. The officer testified that the above “discussion” with the Appellant took place “in the front doorway area of the foyer”. He acknowledged that he and his partner had “passed the threshold of the door” and were “inside the unit”, standing “side by side” in the “doorway foyer of [the] apartment”. The officer was standing about a foot away from the Appellant. He estimated that he was about “one step” inside the Appellant’s condominium unit. The oficer acknowledged in his testimony that the Appellant “took exception to us being inside and he wanted to close the door”, and he said something to the effect “get out of my house”.

In his testimony, the officer agreed that the Appellant was neither under arrest, nor was he detained. He testified that, “I’m investigating at that point”. The officer felt that he had sufficient grounds to arrest for mischief and that the Appellant “had completed the offence of mischief”. However, the investigation was proceeding so that the officer could determine “whether or not I will go by way of by-law, whether I will go by way of the Form 9 release, I have different things that I can proceed with … Just because I formed the grounds doesn’t necessarily mean I have to arrest”. The officer took the view that he “was investigating a Criminal Code offence of mischief to property, I was not going to leave his residence until my investigation was complete”. He needed to know “who I was speaking to” because this person “had committed a criminal offence”. The officer did not have an opportunity to explain his view of police powers because, upon asking a second time for the Appellant’s identification, the Appellant motioned and turned, “almost like he was going to get his ID”. The officer then took a second step forward into the unit and, at this point, the Appellant turned back and pushed the officer in the chest. The officer agreed that he had, “moved my way into the unit, yes.” The officer explained his second step forward, further into the unit, as being due to his desire to keep the door open. In the course of his “discussion” with the Appellant “in the foyer of the condo”, he could see that there were about eight to ten people inside the unit. There were about five males, one of whom had come outside of the unit and was standing in the hallway behind the officers. The others were females. The officer felt that there was a “safety concern” because “if that door was closed I didn’t know what was going to come at me afterwards”. The officers told the Appellant that they would not close the door. The Appellant wanted to close the door, which is when he pushed the officer. It was as if the Appellant was indicating to the officer, “like get out of my house and that’s when he pushed me”. The officer felt that the Appellant was not free to close the door or to refuse to answer his question about providing identification. The force used by the Appellant in the push “was minimal”, according to the officer. The effect of the push was that “my shoulder went back”. The officers proceeded to arrest the Appellant for assault police. There was a struggle to arrest him.

The Appellant was charged in a two count Information with assault police “in the execution of his duty” and with mischief by “playing loud music” which wilfully interrupted the lawful enjoyment of property at his condominium building.

The Honourable Michael Code said the facts of this case were unambiguous: the officer entered into a private residence and refused to leave when the owner asked him to leave; the officer’s admitted purpose was to investigate a completed offence of mischief, and not to make an arrest; finally, the officer took the position that he was not going to leave the residence until he had completed the investigation, in spite of a clear lack of consent from the owner of the premises. The only issue on appeal was whether this conduct by the officer was in accordance with the law.

The Judge said the answer to this question turned on the longstanding common law precept concerning the “sanctity of the home” (Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 129 (S.C.C.)). Given the clarity and strength of the common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called “exceptions” to the general rule include the following:

* Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”. See: R. v. Macooh (1993), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 226 C.C.C. (3d) 289 (Ont. C.A.);

* Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 12 C.C.C. (3d) 372 (Sask. C.A.);

* Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.);

* Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry. See: R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

* Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

Justice Code said given the relatively small number of exceptions to the rule against forced entry of residential premises by the police, and given their narrow definitions, the courts have repeatedly held that there is no power to enter a dwelling simply for purposes of furthering an investigation. This is precisely what the officer thought he had the power to do in the case at bar. In R. v. Ryan (1956), 116 C.C.C. 239 (B.C.C.A.), it was held that “the mere desire to make an investigation gives no such right of entry”. The Judge said the authorities are clear that police officers become trespassers when they enter premises, without the consent of the owner and without bringing themselves within one of the recognized exceptions to the “sanctity of the home” principle. The officer could not bring himself within any of the exceptions to the “sanctity of the home” principle: there was no “hot pursuit”; there was no purpose relating to prevention of serious injury or protecting life and safety; there was no warrant to arrest and no warrant to search; and there were no “exigent circumstances” such as imminent bodily harm or death or loss of evidence. The Judge said the officer was simply pursuing a mischief investigation as a result of a noise complaint. In these circumstances, the authorities are clear that the officer was a trespasser and the Crown could not prove that he was acting “in the execution of his duty”.

The Honourable Michael Code said the trial judge erred in law in that she made repeated findings to the effect that the officer was on the premises pursuant to the Appellant’s “invitation to enter”. The Crown on appeal conceded that there was no evidence of any such “invitation to enter”. However, the Crown submitted that the “implied license” doctrine did allow the officers to enter into the foyer of the condominium unit, in order to communicate more effectively with the Appellant. Justice Code disagreed. The leading authorities concerning the “implied license” doctrine make it clear that it is no more than a license to approach the door of a dwelling and knock. Indeed, the doctrine is often described as an “implied license to knock”. It has never been held to permit entry (R. v. Evans (1996), 104 C.C.C. (3d) 23 at paras. 13 and 40 (S.C.C.)). Similarly, in the leading Ontario Court of Appeal decision, R. v. Tricker (1995), 96 C.C.C. (3d) 198 at 203 (Ont. C.A.), Galligan J.A. stated that “the implied license ends at the door”.  

The Honourable Michael Code said the trial judge erred again when she held that the officer was also justified in stepping further into the unit, and not stepping back outside the door when he was asked to leave, because of concerns about “officer safety”. Weak and speculative concerns about “officer safety” have never been held to justify forcible entry into private premises according to Justice Code. The Supreme Court of Canada’s recent decision in R. v. MacDonald[2014] S.C.J. No. 3 at paras. 41 and 43, allows such entry (pushing the door open a few inches in that case) but only on the basis of a demanding standard of “reasonable grounds to believe that there is an imminent threat to their safety” and not on “the basis of a vague concern for safety”. In that case, the officers had grounds to believe that MacDonald had a weapon in his hand. In the case at bar, the officer’s articulation of his “officer safety” concerns could not possibly meet the standard set out in R. v. MacDonald, supra. He explained that there were eight to ten men and women inside the unit, and one man outside in the hallway, and he testified that “I didn’t know what was going to come at me afterwards”, if he was to step back and allow the front door to close. This kind of speculative fear of the unknown, when there is a gathering of people in a dwelling, could apply to any dinner party or house party and it would effectively allow the police to remain, uninvited, at any such gathering. This would amount to an extraordinary expansion of police powers said Justice Code.

For all these reasons, the defence’s appeal was allowed, the conviction was set aside, and an acquittal was entered.

 

 

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