Category Archives: Worthy of a Review

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament)

Bill C-75 came into force, or will come into force, on three different dates: July 21st, 2019, September 19th, 2019, and December 18th, 2019. In December, the latest “coming into force” will become law and this part of the Bill contains some changes for police procedures and authorities.  Others will indirectly affect law enforcement. For example, as a result of amendments to the Criminal Code in force as of September 19th, 2019, the procedure known as a ”preliminary inquiry” with respect to indictable offences, will only take place if the accused is charged with an indictable offence that is punishable by 14 years or more of imprisonment, and has requested such an inquiry (s. 535 CC). But the next amendments will directly affect the way law enforcement does business, and not surprisingly, many officers have not been fully made aware by agencies and organizations.  Probably the biggest of those changes come in the way of release for police, but before I can into that, let’s discuss something else.

In addition to the peace officers’ general powers of arrest without warrant under s. 495(1) of the Criminal Code, on December 18th, there is a further power of arrest under s. 495.1 of the Code (those versed in law may recognize it as closely resembling the old 524(2) of the Code. This new provision allows the peace officer to arrest without a warrant a person for the contravention or reasonably apprehended contravention of any one of the following peace officer issued documents – summons, appearance notice, undertaking – and a justice/judge issued release order. In addition, a peace officer may arrest without warrant a person who has committed an indictable (or dual procedure) offence after any one of the above-mentioned documents have been issued. This section does not create an offence but does create an arrest authority independent of s. 495(1) of the Criminal Code.  A person who is arrested under this section must be taken before a justice, for a hearing, who will decide whether the accused has contravened or is about to contravene the specified form of release, or whether there are reasonable grounds to believe the person committed an indictable offence while on release. If a justice so finds, the person’s release on the initial charge shall be cancelled and the person shall be detained in custody on the original charge for which the person was released unless the person can show cause why their detention in custody is not justified. This is a reverse onus provision, opposite the initial detention burden, which is on the Crown to show cause why the person should be detained.

Administration of justice offences (AOJOs) are offences committed against the integrity of the criminal justice system. The most common AOJOs include failing to comply with bail conditions (i.e., disobeying a curfew, drinking alcohol), failing to appear in court, and breaches of probation (e.g., failing to report to a probation officer).  When the failure has not caused harm to a victim, including physical, psychological or financial harm (e.g., property damage or economic loss), the police (and Crown Attorneys) could direct AOJOs to a judicial referral hearing as an alternative to charging the accused with an AOJO.  At the judicial referral hearing, the judge or justice will review any existing conditions of release and could decide to take no action, release the accused on new conditions, or detain the accused, depending on the particular circumstances of the accused (e.g., mental health issues, existence of neurocognitive disorders such as FASD, addictions, homelessness) and of the offence. Under s. 496 CC, an appearance notice can be issued to the offender to appear at the hearing. This new procedure does not impact current police powers relating to deciding whether or not to lay charges.  It instead enhances police (and prosecutorial) discretion by allowing us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges, when it is considered appropriate under the circumstances and when it is believed that the alleged breach should still be brought to the attention of a judge or justice. It provides another tool for police, prosecutors, and courts to deal more effectively with these AOJOs (i.e., failures to comply with conditions of release, and failures to appear in court or as required) that do not involve harm to victims (including physical, emotional and financial harm).

Since a judicial referral hearing involves the review of the conditions imposed after an accused was charged with an earlier offence, as opposed to considering the guilt or innocence of the accused in relation to an alleged AOJO, the AOJO itself does not appear on a criminal record following such a hearing.  No finding of guilt or innocence is made at the judicial referral hearing and any charges that may have been laid regarding that specific AOJO are dismissed by the judge or the justice once a decision is made with respect to the release status of the accused.  In the case where no charges have been laid against the person and (s)he fails to appear at a judicial referral hearing under section 523.‍1 CC, as required in the appearance notice, charges may be laid against the person for the alleged offence.  An important thing to note is that if the person does not attend their judicial referral hearing, they are not be charged with the offence of failure to appear for the hearing, but instead may be charged for the breach that was to be addressed through the judicial hearing in the first place.  In the alternative, the officer also has the choice of dropping the matter or offering the accused another hearing.

I will caution you that s. 496 CC in its wording is silent on whether an arrest can or cannot be effected in such a case, so until our courts interpret this wording, we can only presume that the appearance notice could be issued for the judicial referral hearing without or following an arrest for the violation of the administration of justice offence where no harm has been caused to the victim.  Since offences against the administration of justice are criminal offences, it stands to reason that an arrest is authorized under our general arrest provision in any regard, and all s. 496 attempts to do is to provide us with another avenue and discretion to allow us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges and not to override our decision to lay charges, whether an arrest has occurred or not.

Okay, now on to the biggest change that will affect our work.  Come December 18th, say goodbye to promise to appear, recognizance (both officer and judge issued), and undertaking documents as we now know them.  Police release options will now be two only: via an appearance notice, or with the issuance of an undertaking (summons still available, but technically person is not ‘released’ on a summons since they are either released unconditionally with intention to be served later to appear in court, or served without an arrest having been effected) .  A judge’s will be via a release order – no longer undertakings or recognizances (peace bond recognizances are not affected).  With that, the charge sections are also affected: violation of appearance notice or summons, 145(3) CC, and violation of undertaking is 145(4) CC.  Violation of the judge’s release order conditions will be 145(5) CC and failure to appear in court is 145(2) CC.

Think of the new Undertaking as a combination of the old PTA, Recog, and Undertaking.  Let me explain: under the old system, we could place conditions or ‘promises’ upon the person as part of release to address the P.R.I.C.E. concerns we had, but a PTA or Recog had to be issued as well because the Undertaking did not compel them to court or ICA processes.  Further, a Recog could be issued where we had court attendance issues, or person resided in a province outside the province of arrest, etc. because it allowed us the either request a deposit (up to and including $500) or have them acknowledge they would owe Her Majesty the Queen that amount should they not show up for court. These latest changes are intended to streamline our release provisions and streamline the process by increasing the types of conditions police can impose on accused, so as to divert unnecessary matters from the courts and reduce the need for a bail hearing when one is not warranted.  So, the new Undertaking compels the person to court and ICA processes, lists conditions/promises that we can require of the arrestee, and it also allows the officer to require the arrested person to either enter into an acknowledgement (i.e. deposit is not taken from the person at time of release), in order to secure release, that they owe Her Majesty the Queen an amount of money not exceeding $500 if the person fails to attend court as required, fails to appear later for photographing and fingerprinting under the Identification of Criminals Act, if required, or if they fail to comply with any condition of the undertaking (i.e., s. 501(3)(i) CC), or deposit a sum of money (not to exceed $500) with the officer before release (only authorized for a non-resident of the province of the arresting agency, or for those residing more than 200 kilometres of the place of custody).

Some other changes:

  • Any peace officer has the discretion to release a person arrested on an endorsed warrant (i.e. 507(6) CC endorsement) – now longer sole discretion of officer-in-charge, and where release is favoured, the person can be issued an appearance notice or undertaking.
  • Of note, Bill C-75 legislated a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention, that bail conditions are reasonable and relevant to the offence and necessary to ensure public safety, that sureties are imposed only when less onerous forms of release are inadequate, and requires that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions.
  • Bill C-75 also provides that certain warrants and orders no longer require an out-of-province-endorsement to be executed.  So, warrants such as wiretap authorizations, search warrants, general warrants, DNA, tracking, CDSA, and others can be executed anywhere in Canada.  However, the officer executing the warrant must be empowered to act (i.e. is a peace officer in the executing province) in the province where the warrant is executed.
  • The Bill has hybridized a lot of offences and has increased the default penalty for summary conviction offences from 6 months, $5000, or both, to two years less a day, $5000, or both.
  • The statute of limitations for summary conviction offences has also been increased from 6 months to 12 months.
  • The Identification of Criminals Act now includes an amendment to paragraph 2(1)(a) of the ICA to allow for fingerprints to be taken for hybrid offences, regardless of whether the Crown proceeds by indictment or summarily.

That’s the changes in a nutshell.  I may have missed some, and I’m still trying to get my head wrapped around these changes myself in preparation for the police recruits in January, 2020, and updating all my training material.  No one has explained the changes to me unfortunetly, so I have done my best to get this out to you and explain it to you as I’ve interpreted the changes, so please take some steps to ensure my interpretation is correct before you act. The new release forms should be made available to you soon (hopefully before December 18 in any regard).  I have a copy of the ones for Nova Scotia as we speak, but not for the other provinces yet.

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Vehicle Stops – Law and Analysis

This post is not conclusive but meant to provide some guidance to officers conducting vehicle stops.

A motorist in Canada is legally obligated to stop their vehicle when directed to do so by a police officer: see, for example, Highway Traffic Act s. 253(2) PE; Motor Vehicle Act s. 83(1) NS; Motor Vehicle Act s. 105 NB,  Highway Traffic Act s. 201.1(1) NL; Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 216(1)-(2), etc.

A driver has no choice but to comply with such a direction. When a motorist does so, they are “detained” from a Charter standpoint: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31; R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 631-632; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-644, but that detention is justifiable under s. 1 of the Charter provided that the stopping of the motorist is for reasons related to traffic safety, this includes things, “such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1287. See also, Hufsky. It also includes the authority to detain a motorist whom a police officer observes or reasonably suspects of committing an offence: R. v. Wilson, [1990] 1 S.C.R. 1291, at p. 1297 (a.k.a. articulable cause).

The Supreme Court of Canada has held that a police officer who lawfully detains a motorist for traffic safety reasons may also harbour ulterior criminal investigative purposes for the detention. Provided that traffic safety remains a motivation for the detention, the fact that the officer is also interested in discovering evidence of another offence does not in itself invalidate the detention. That said, in such cases, a police officer must be careful not to exceed the limits of his or her traffic-safety powers. If they do so, they violate the Charter: see R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

A police officer’s authority, “must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised.” R. v. Stevenson, 2014 ONCA 842, at para. 56, leave to appeal refused [2015] S.C.C.A. No. 37.

A police officer is empowered to briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. The power to detain is not confined to crimes known to the police but includes crimes that are reasonably suspected: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35; R. v. Nesbeth, 2008 ONCA 579, at para. 18, leave to appeal refused [2009] S.C.C.A. No. 10.

Section 10(a) of the Charter guarantees everyone the right “on arrest or detention” to be “informed promptly of the reasons therefor”. This constitutional right imposes an informational duty on police that they can discharge with relative ease. It merely requires a police officer on detaining a person to tell them in “clear and simple language” the reason(s) why: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at p. 888.

This obligation applies whether a police officer is detaining a pedestrian or a motorist: Orbanski & Elias, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel does not apply during motor vehicle stops motivated by traffic safety concerns: Orbanski & Elias, at para. 60. As a result, a detained motorist is often, “wholly reliant on the police to provide him with the information he requires to be able to make informed choices.”: R. v. Mueller, 2018 ONSC 2734, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is especially important during traffic safety stops.

In terms of when the person detained must be told of the reason(s) for their detention, the text of s. 10(a) instructs that this take place “promptly.” The case law makes clear that this means immediately: R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. The only justification for delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: R. v. Boliver, 2014 NSCA 99, at paras. 15-20.

Driving is a licensed activity that is subject to regulation and control in the interests of public safety. The Supreme Court of Canada has upheld a variety of police powers meant to combat the threat posed by impaired, unlicensed and uninsured drivers, as reasonable limits on the constitutional rights of motorists under s. 1 of the CharterOrbanski & Elias, at paras. 54-60; Hufsky, at pp. 636-637; Ladouceur, at pp. 1279-1288; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 653-656.

Nevertheless, a person who is lawfully entitled to operate a motor vehicle has a reasonable expectation of privacy in their vehicle, albeit of a diminished nature as compared to a dwelling or a private office. Given this, under s. 8 of the Charter, they enjoy the right to be secure against unreasonable search or seizure in their vehicle: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19; R. v. Grant, [1993] 3 S.C.R. 223, at p. 242; R. v. Mooiman and Zahar, 2016 SKCA 43, at para. 39. In assessing what is constitutionality permissible during the detention of a motorist, much depends on a police officer’s purpose and actions.

If traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take a variety of steps without engaging the driver’s s. 8 Charter right. For example, a police officer may visually inspect the passenger compartment of the vehicle, including with the aid of a flashlight, require the driver to produce their license, car registration and proof of insurance, and also inspect the vehicle to assess its mechanical fitness. Such measures do not encroach upon a motorist’s reasonable expectation of privacy during a lawful traffic stop: Hufsky, at p. 638; Belnavis, at para. 28; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-625. These steps do not engage s. 8 even when a police officer also harbours an ulterior criminal investigative purpose for the detention, provided the officer’s traffic safety motivation for the detention persists, and they do not act in excess of the limits on their associated powers: Nolet, at paras. 32-41.

If during the lawful detention of a motorist for traffic safety purposes a police officer happens to observe an item that is immediately recognizable as evidence of a crime or illicit contraband, the plain view doctrine provides the officer with authority to seize the item: Criminal CodeR.S.C., 1985, c. C-46, s. 489(1)Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(8); R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27. Alternatively, if while operating within the parameters of their traffic safety powers, a police officer acquires the grounds necessary to undertake more invasive investigative steps, then they are entitled to act on such grounds: Nolet, at para. 28.

Once a police officer’s interest in traffic safety ends, however, any intrusion on a motorist’s reasonable expectations of privacy must comply with s. 8 of the Charter. Ordinarily, this means that the police officer will require reasonable grounds to search the vehicle for evidence of a crime: Mellenthin, at pp. 624-625; Nolet, at paras. 28, 39, 43. Alternatively, if the motorist is lawfully arrested, the vehicle may be searched for evidence or weapons incidental to that arrest, provided the vehicle is connected to the reason for arrest and there is a reasonable prospect that evidence will be located in the vehicle: see, generally, R. v. Caslake, [1998] 1 S.C.R. 51. Short of this, a protective weapons search could potentially be justified, but only if the police officer believes on reasonable grounds that his or her safety is at stake and that such a search is necessary: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. Depending on the circumstances, this may justify searching a motorist’s vehicle for weapons: see, e.g.R. v. Plummer, 2011 ONCA 350, at para. 65; R. v. Lee 2017 ONCA 654 at para. 43.

Entirely different considerations apply if traffic safety does not truly factor into the officer’s decision to detain and is merely offered as a pretext (a false justification) to detain a motorist and look for evidence of a crime. Without any traffic safety justification, not only will the pretextual detention result in a violation of the motorist’s s. 9 Charter right from the outset, any resulting intrusion on the motorist’s reasonable privacy expectations will also be unlawful and violate s. 8 of the Charter: see, e.g.R. v. Ladouceur, 2002 SKCA 73, described as “fatally flawed from the outset” in Nolet, at para. 25. Where traffic safety is not the reason to conduct the stop, the officer must have at least articulable cause to stop the vehicle, meaning… “A constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: Simpson. The threshold is lower than the threshold for an arrest, which is reasonable grounds, but it is something more than an officer’s hunch based on intuition gained by experience.

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Sidebar from the Reeves decision…worthy of a post

I didn’t want to take away from the “consent” issue/debate in the Reeves decision by cluttering it with a couple of other issues that require their own post.  Of note in Reeves was whether the police infringed Reeves’s Charter rights by entering the shared home without a warrant. This issue was not fully canvassed by the majority since it was not the main issue on appeal (Reeves conceded during oral submissions before the Court that he was not challenging the police entry into the Reeves-Gravelle residence). That being said, Justice M.J. Moldover, concurring with the majority, took some time to address the issue and I believe it’s something worthy for officers to appreciate. Justice Moldover wanted to express some tentative views on the issue of police entry into a shared residence, a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.  Justice Moldover felt that this is an important issue for debate since the police entry into the Reeves-Gravelle residence on the strength of Gravelle’s consent was the catalyst giving rise to a chain of events that culminated in the discovery of child pornography on the shared computer. If the entry contravened s. 8, it follows that the evidence discovered during the search of the computer was “obtained in a manner that infringed or denied” Reeves’s rights, bringing it within s. 24(2)’s exclusionary reach.

Further, Justice Moldover wrote that the legality of the police entry has implications beyond the four corners of this case. Police frequently attend residences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home. Counsel’s concession that police entry into a shared residence is not a “search” therefore has the potential to affect a large swath of Canadian society by shifting our understanding of the right to be free from unreasonable search or seizure. Do police have the authority to enter the shared residence at common law under the ancillary powers doctrine, to take a statement, for example?

Consider a situation where a complainant calls the police and informs us that her partner has physically abused her but has left the house. There is no emergency that would allow the police to enter the home under the emergency search power articulated in Godoy. Without each occupant’s consent, the police would be unable to enter the home. At present, the police would appear to have two options. They could ask the complainant, who has just been assaulted, to suffer the embarrassment of speaking to the police outside of her home — a request that could understandably be met with a refusal. Or, we could try to obtain the consent from the co-resident who allegedly perpetrated the abuse — an exercise almost guaranteed to prove futile. Or a situation after being called by a resident who reports a theft of property from a home she shares with six roommates, are we required to (1) determine how many people live in the home, and (2) seek out and obtain the consent of each before entering the home to take a statement? In each of the foregoing examples, short of intruding on the co-resident’s expectation of privacy, we would effectively be powerless to investigate the reported criminal offences.

Our homes have the potential to reveal the most intimate details about our personal lives. Individuals therefore typically have a heightened expectation of privacy within their homes. That said, five constraints on the police entry power that Justice Moldover articulated to minimize the extent of the interference with that expectation, inlcude:

  1. First, the police must query whether conducting the interview in the person’s home is necessary. If, after being presented with the option of having the interview at home or elsewhere, the person is ambivalent as to where it takes place, then the interview should be conducted outside the home. On the other hand, if the person indicates a preference to speak with the police at home, the police may act upon that preference. They need not attempt to weigh the strength of the person’s conviction not to be interviewed outside the home. Nor ought the police to cross-examine the person about his or her underlying fears and motivations, in an effort to determine whether the person will leave the home if pressed or cajoled.
  2. Second, the scope of the entry power would be narrowly tailored to its purpose. Courts regularly focus on the purpose of a particular police action to evaluate its legality. For example, in Evans, this Court held that residents are deemed to grant the public, including police, an implied licence to approach their home and knock. However, the police may only approach a residence under the implied licence to knock doctrine if their purpose in approaching is to communicate with an occupant: Evans, at paras. 13-16. Similarly, a search incident to arrest is only lawful if the purpose of the search relates to the purpose of the arrest: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19-25. The purpose of the entry power that I am articulating is to take one or more statements in connection with a criminal investigation, whether from the authorizing resident, or from other willing occupants, as the authorizing resident may permit. Absent further lawful authority, the legality of the entry ends when the police exceed that purpose. To be precise, the police may not go further and lawfully search the residence or seize evidence from it unless they obtain the necessary grounds in the course of taking the statement or statements.
  3. Third, the police would only be permitted to enter the common areas of the home. This too flows from the purpose of the entry. Because the police are only in the residence to take a statement, there is no need to enter any private areas, such as bedrooms, where a resident’s expectation of privacy is generally at its highest. In contrast, each co-resident has a reduced expectation of privacy in common areas of their home.
  4. Fourth, the police can only enter if invited in by an occupant with the authority to consent. Unlike many of the other statutory and common law police entry powers, forced entry would be strictly prohibited. Furthermore, the consent must be voluntary and informed, and the resident’s consent must be continuous and may therefore be revoked. The police must respect the resident’s wishes if he or she revokes the consent.
  5. Fifth, the entry would only be for a limited duration. If, after taking the statement, or statements, the police do not obtain the requisite grounds to undertake any further investigative action, they must immediately leave the residence.

To summarize, the common law police power that Justice Moldover tentatively described to allow a narrow entry power to take a statement from an individual with the authority to grant police entry, or from other willing occupants, as the authorizing resident may permit, has five criteria:

(1) The police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location — if one is available — that does not potentially intrude upon the reasonable expectations of privacy of co-residents in their home. (2) The purpose of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants, in connection with a criminal investigation. The police may not go further and search for or seize evidence unless they obtain the necessary grounds to do so in the course of taking the statement or statements. (3) The police are only permitted to enter the home’s common areas into which they have been invited. (4) The police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous. (5) Unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants.

Another interesting tidbit from the Reeves decision was from Justice Cote, concurring with the majority:

“Nevertheless, even though I am of the view that the entry into the home and the seizure of the computer were both lawful, I would still exclude the evidence under s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to comply with ss. 489.1 and 490 of the Criminal Code, R.S.C. 1985, c. C-46, by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.”

Don’t forget or neglect to file the Report to Justice and Detention Order!

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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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