R v Hartai, 2016 ABQB 225

Court of Queen ’ s Bench of Alberta Citation: R v Hartai, 2016 ABQB 225 Date: 20160418 Docket: 130739170S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - Robert Andrew Hartai Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.G. Park _______________________________________________________

Appeal Against Acquittal M.L. Graham The Honourable Judge Filed on the 17 th day of July, 2015 Dated the 30 th day of June, 2015 (Docket Number: 130739170P1) [ 1 ] The Crown appeals a ruling on the Charter application of the Respondent (Hartai), which led the trial judge to enter an acquittal on the following charge: Count 3 On or about the 26 th day of June A.D. 2013 at or near the Town of Canmore in the Province of Alberta did resist Constable Ling and Constable Wells, Peace Officers to wit: Police Constables of the Royal Canadian Mounted Police in the Town of Canmore engaged in the execution of their duty by pulling away from them contrary to

Section 129(

A) of the Criminal Code . [ 2 ] Prior to the trial Hartai provided a filed Notice under the Canadian Charter of Rights and Freedoms alleging breach of his rights under s.7 , which is the right to life, liberty and security of the person and further under s.9 which is the right not to be arbitrarily detained. [ 3 ] Hartai alleged the arresting RCMP officer breached these rights in effecting his arrest on June 26, 2013 at or near Canmore in the Province of Alberta. That arrest formed the basis for the laying of the charge before the court. [ 4 ] A voir dire was held on the Charter breach challenges.

The arresting officer, Constable Ling, was the only witness called. His testimony indicated he attended at the residence of Hartai in Canmore on June 26, 2013 and arrested Hartai in the residence without a warrant. [ 5 ] At the conclusion of the voir dire , the trial judge found breaches of s.7 and s.9 and determined the arrest was unlawful. She decided to exclude the evidence under s.24(2) of the Charter . [ 6 ] As a result of that ruling, the Crown closed its case and invited the trial judge to dismiss the charge.

Accordingly, the charge was dismissed and Hartai was acquitted. [ 7 ] At issue in the voir dire was whether the RCMP officer had the authority to effect an arrest of Hartai in Hartai’s residence for an alleged breach of the condition of an undertaking. [ 8 ] There was evidence called in the trial before the voir dire commenced. I set it out to provide a background for the evidence heard in the voir dire . Hartai had been charged with 3 counts of assault alleged to have occurred on June 24, 2013, in Canmore, Alberta. On his arrest on these 3 counts, he was taken to the Canmore RCMP detachment.

He eventually was released from custody on June 25, 2013 on a recognizance which set out the 3 counts of assault, each under s.266 of the Criminal Code . On that same day he also executed an undertaking in Form 11.1 of the Criminal Code . Specifically, that undertaking was given to a peace officer or officer in charge of the Canmore RCMP detachment. [ 9 ] The undertaking, which Hartai was alleged to have breached, set out as a condition that he, Hartai, was: “to abstain from: (

i) the consumption of alcohol or other intoxicating substances; or (ii) the consumption of drugs, except in accordance with a medical prescription.” [ 10 ] In the undertaking Hartai acknowledged that failure without lawful excuse to abide by any of the conditions specified is an offence under s.145(5.1) of the Criminal Code . [ 11 ] The trial judge summarized the remaining facts as follows, as found at AB 72 lines 7-37: On June 26 th , 2013, two members of the Canmore RCMP, namely Constable Ling and Constable Wells attended the accused`s residence in Canmore for two purposes: One was to talk to him about the condition that he was not to have contact with the complainant, as the complainant Ms.

Rain was allegedly contacting the accused and also to check that the accused was complying with his conditions generally – that is, conditions of the recognizance and the undertaking. The officers knocked on the door, stated who they were, and the accused answered the door. They told him they were there to talk about the condition that he wasn`t supposed to have contact with Ms. Rain.

During the conversation, Constable Ling asked the accused if the officers could come in and chat inside the residence rather than on the doorstep and the reason given was so that the neighbours didn`t hear the discussion and so the accused could have privacy. The accused agreed and he allowed the officers into the residence. Once inside, Constable Ling smelled alcohol on the accused`s breath and so he asked him if he had been drinking tonight, in those words.

Seeing a wine glass on the table along with a dinner plate, Constable Ling then asked the accused, How much have you had to drink tonight, in those words, and the accused stated he`d had a couple of glasses of wine with dinner.

Constable Ling then told the accused he was under arrest for breach of conditions. The accused said no, raised his hands, and backedaway. A struggle ensued whereby the accused resisted arrest until he was eventually subdued on the floor by both officers andhandcuffed. The accused was then charged with two counts of breaching an undertaking by failing to keep the peace and by consumingalcohol and he was charged with resisting Constable Ling and Constable Wells while they were engaged in the execution of their duty.

It was clear that prior to entering the residence, which was with the consent of the accused, the RCMP officers had no grounds to arrestthe accused. [12] In the voir dire reasons, the trial judge noted decisions given at various court levels, which referenced the Supreme Court ofCanada case of R v Feeney, (SCC), [1997] 2 SCR 13. She observed it outlined the general rule that a warrant isrequired for an arrest in a dwelling house. She further referenced s.529.1 of the Criminal Code.

It states: A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for thepurpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by informationon oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that (

a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada; (

b) grounds exist to arrest the person without warrant under paragraph 495(1)(

a) or (

b) or

section 672.91; or (

c) grounds exist to arrest or apprehend without warrant the person under

an Act of Parliament, other than this Act. [13] This

section provides for issuance of a judicial warrant to authorize a peace officer to enter into a dwelling house to arrest orapprehend a person identified or identifiable by the warrant. It deals with arrest by judicial warrant and does not specifically apply to thefactual situation in this appeal where Constable Ling entered the dwelling house without a judicial warrant but with the consent of Hartai. [14] The trial judge further referenced s.529.3 of the Criminal Code.

In essence it permits a peace officer to enter a dwelling-houseto arrest or apprehend a person without a warrant if the peace officer has reasonable grounds to believe the person is in the dwelling-house and the conditions for obtaining the judicial warrant under s.529.1 exist, but by reason of exigent circumstances it would beimpractical to obtain a judicial warrant. Again in my view, this

section does not specifically apply to the factual situation in this appeal. [15] The trial judge next proceeded to review s.495(1) and s. 495(2) of the Criminal Code. In my opinion, these are the correctsections applicable to the factual situation in this appeal. Those two sections and s.495(3) state: 495(1) Arrest without warrant by peace officer - A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) Limitation - A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to bedealt with according to law.

(3) Consequences of arrest without warrant - Notwithstanding subsection (2), a peace officer acting under subsection(1) isdeemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that thepeace officer did not comply with the requirements of subsection (2).

[16] The trial judge posed this question at AB 73 Lines 26-28: “So, then the question is does

section 495.1 provide authority for arrest without a warrant and I find only if I can determine that thepolice found the accused committing a criminal offence as per

section 495.1(

b) would that arrest be lawful.” [17] She answered that question as follows at Appeal Book 73 Lines 36-41: “So the question really is does the fact that the officers smelled alcohol on the accused’s breath equate to finding the accused committingthe offence of breaching the undertaking he was then subject to by consuming alcohol? And I find that it does not equate to finding theaccused committing the offence. So thus, I conclude that the arrest was unlawful and that the accused then had a – that there werebreaches of

section 7 and

section 9 and by extension that the accused was justified in resisting arrest.” [18] In her required analysis under s.24(2) of the Charter, the trial judge noted an arrest on a hybrid offence [which the Crownprosecuted in this trial as a

summary conviction offence] in a person’s home was a serious step taken by the arresting officers. She notedno concrete evidence of alcohol was observed or seized. In addition she found the admission was made by Hartai in the absence of anyright to counsel having been provided by the arresting officers. As a result on those points, the trial judge did not favour the admission ofthe evidence on the first prong of the test set out in R v Grant, 2009 SCC 32.

Again referring to the seriousness of a warrantless arrest ofHartai in his own home, the trial judge addressed the second prong of the Grant test and found it did not favour the admission of theevidence. Finally, the trial judge applied the third prong of the test in Grant and determined the admission of the evidence would causethe administration of justice to be viewed poorly. [19] As a consequence, the trial judge declined to admit the evidence of Hartai’s verbal admission, the presence of the wine glassand Hartai’s behaviour subsequent to his arrest.

Crown’s Position on Appeal [20] The Crown argued that the trial judge erred in finding that Hartai’s arrest was unlawful due to breaches of s.7 and s.9 of theCharter and further that the trial judge erred in excluding the evidence. [21] The Crown submitted the trial judge erred in law in not applying the proper legal question in the reference to s.495(1)(b). TheCrown argued the proper legal question to be addressed revolved around whether the arresting officer held an objectively reasonablebelief that Hartai was “apparently” committing a criminal offence.

The Crown contended the legal question set out by the trial judge,whether the smell of alcohol “equates” to finding Hartai committing the offence of breaching his undertaking by consuming alcohol, wasincorrect. Respondent’s Position on Appeal [22] In submitting the trial judge correctly applied the correct legal test and make proper and sound findings of fact, Hartaireferenced the relevant rules of statutory

interpretation and the definition of the words “finds committing” as set out by Alan D. Gold inHalsbury’s Laws of Canada: Criminal Procedure (2014), HC02. That definition articulates the person effecting the arrest “must havecome upon someone who, at that very moment and at that very place, is engaged in criminal activity.” [23] Hartai cited numerous case authorities to buttress the argument that the words “finds committing” in s.495(1)(

b) requiresConstable Ling find Hartai committing a criminal offence in order to make a lawful arrest without a warrant. Hartai submitted based onthe circumstances apparent to Constable Ling at the time the arrest was made, it could not be said that he was found in the act ofconsuming alcohol at that very time and at that very place. Further, Hartai submitted it could not be said Constable Ling was presentwhen he was failing to abstain from the consumption of alcohol.

In this connection Hartai argued the trial judge properly addressed theissue whether Constable Ling found him committing a criminal offence and the trial judge subsequently correctly found that ConstableLing did not. Hartai noted at best Constable Ling had reasonable grounds to believe Hartai had failed to abstain from the consumption ofalcohol at some unknown time. [24] In conclusion Hartai submitted the trial judge correctly found the arrest was unlawful resulting in breaches of s.7 and s.9 ofthe Charter and consequential exclusion of all material evidence under s.24(2) of the Charter.

Standard of Review [25] Both the Crown and Hartai agree that the standard of review for an error of law is correctness. They further agree the standardof review for an error of mixed fact and law is “palpable and over-riding error”. See Housen v Nikolaison 2002 SCC 33 , 2002S.C.J. No 31 @ paras 8-37. Reasons [26] The applicable

section in this appeal is s.495(1)(b). It reads: 495(1) A peace officer may arrest without warrant ...(

b) a person whom he finds committing a criminal offence ...

[ 27 ] It is common ground that Constable Ling did not have a warrant for the arrest of Hartai. The significant facts revolve around his attendance upon Hartai’s residence to have a conversation with Hartai respecting Hartai’s concerns regarding one of the conditions of Hartai’s prior undertaking. Further, Constable Ling wanted to check that Hartai was abiding by the release conditions set out in the undertaking. Cst Ling was met at the door of the residence by Hartai. Hartai was advised why Ling and his police partner were there. Constable Ling asked if he and his partner could come inside.

Hartai invited them into his residence. They entered the residence with the consent of Hartai. [ 28 ] Within seconds, Constable Ling smelled the odor of alcohol coming from Hartai’s breath. The constable asked: “Have you been drinking tonight?” and a second question, “How much have you had to drink tonight?” [ 29 ] Hartai replied, “I had a couple of glasses of wine with dinner.” [ 30 ] Constable Ling immediately advised Hartai that he was under arrest for breaching his conditions. Hartai backed away and put up his hands and said, “No”. The constable said, “Yes you are” and told Hartai he was under arrest.

The constable laid his hands on Hartai and a struggle ensued. Hartai was taken into custody and was transported to the RCMP detachment. [ 31 ] There can be no doubt on the evidence that Constable Ling did not observe Hartai drinking alcohol. [ 32 ] However, that is not the issue involved in determining whether Hartai was observed to be breaching the conditions of the undertaking.

That undertaking condition required Hartai to abstain from the consumption of alcohol or other intoxicating substances. [ 33 ] Thus the issue is not restricted to whether Constable Ling observed Hartai consuming alcohol, as framed by the trial judge. The key and applicable wording is not the sole word “consuming”, but rather the words “abstain from the consumption of alcohol”.

Hartai was required to abstain from the consumption of alcohol by virtue of his undertaking given to the peace officer or officer in charge in order that he be released from custody on June 25, 2013. [ 34 ] Constable Ling smelled alcohol on Hartai’s breath and Hartai admitted that he had a couple of glasses of wine with dinner. Constable Ling did not need to observe Hartai consuming alcohol.

Rather, the objective factual observances apparent to him were the smell of alcohol on Hartai’s breath and Hartai’s admission of earlier consuming alcohol. [ 35 ] These two objective facts led Constable Ling to a reasonable belief and conclusion that Hartai was not abstaining from the consumption of alcohol when he was in the presence of the constable. Hartai demonstrated to Constable Ling by the odor of alcohol on his breath and by his words of admission that he was not abstaining from the consumption of alcohol on that day.

A reasonable inference could be drawn from the evidence of the odor of alcohol on Hartai’s breath that Hartai still had alcohol within his body at the time of his encounter with Constable Ling. This objective presence of alcohol in his body demonstrated he was breaching the condition of his undertaking in that he was not abstaining from the consumption of alcohol on that day.

The breach of his condition of abstinence was continuing when he was in Constable Ling’s presence. [ 36 ] The fact that no one observed him consuming alcohol did not provide him with a subsequent clean slate with respect to his requirement to abstain from consumption of alcohol. Once he consumed alcohol, he breached his condition in his undertaking and he remained in a flawed state. [ 37 ] Once his abstinent state was violated, he could not regain it as far as his undertaking condition was concerned.

As soon as he failed to remain abstinent, the condition was broken and his failure to abide by his undertaking condition meant it was a continuing offense under subsection s.145(5.1) of the Criminal Code . In his undertaking he acknowledged any failure to abide by any of its conditions was a criminal offence under s.145(5.1) . [ 38 ] In addition, in my view the trial judge erred in law in the overall

interpretation of s.495(1)(

b) and s.495(2). [ 39 ] The trial judge found s.495(2) did not apply as the conditions that would allow an arrest without a warrant were not present on the facts. In my view that was a rather

summary approach to the application of the section. The constituent elements combined in s.495(2) were not fully addressed by her. [ 40 ] Section 495(2) states:

(2) Limitation - A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iv) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and

(

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to bedealt with according to law. [41] There was evidence which had to be addressed to determine whether Constable Ling was limited in his ability to arrest Hartaiunder the provisions of s.495(2). [42] That evidence included the testimony of Constable Ling that he arrested Hartai because he observed him, in effect, to bebreaching the release conditions in the undertaking. Constable Ling advised Hartai he was breaching the release conditions.

There isevidence from which it could be taken that Constable Ling, in effecting the arrest, was preventing the continuation of the offence. [43] The trial judge did not appear to assess that evidence when she found the conditions under s.495(2) which would allow anarrest without a warrant were not present on the facts. Further, there was no assessment under s.495(2)(

d) and s.495(2)(

e) on theevidence as to Constable Ling’s belief on the limitation of his ability to arrest Hartai under those sections. [44] Not only was there not a detailed assessment of the evidence whether Constable Ling was subject to the limitation containedin s.495(2), there was not an assessment of the evidence as it applied to s.495(3) of the Criminal Code. It must be examined. It states: 495(3) Consequences of arrest without warrant - Notwithstanding subsection (2), a peace officer acting under subsection(1) isdeemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that thepeace officer did not comply with the requirements of subsection (2). [45] This

section deems a peace officer acting under s.495(1) to be acting lawfully and in the execution of his duty for the purposesof s.495(3), notwithstanding non-compliance with s.495(2). [46] The charge Hartai was facing at trial involved an allegation he resisted Constable Ling, a peace officer, engaged in theexecution of his duty contrary to s.129(

a) of the Criminal Code. Chief Justice Culliton delivered judgment for the unanimousSaskatchewan Court of Appeal in R v Adams, (1973), (SK CA), 21 C.R.N.S. 257. The case ruled any person whoresists arrest for an offence referred to in s.495(2) is guilty of obstructing a peace officer in the execution of his duty where the officerwas acting pursuant to his powers of arrest under s.495(1), although the evidence demonstrated the officer did not satisfy therequirements of s.495(2). [47] Chief Justice Culliton stated at p 260: “The question then arises – if a peace officer arrests without a warrant a person for one of the offences set forth in paras. (a), (

b) or (

c) ofsubs.(2), and it is established that in so doing he failed to meet the requirements of subs.(2), can it be said in proceedings under the Codethat in making such arrest a peace officer was not acting lawfully and in the execution of his duty? If it were not for subs.(3) a strong argument might be advanced that the peace officer, in making an arrest under such circumstances, wasnot acting lawfully in the execution of his duty. In my opinion, however, subs.(3) must be construed as denying the right to raise adefence, based on the non-compliance with subs.(2), in any proceedings under the Code or any other Act of Parliament. Paragraph (

a) ofsubs.(3) clearly states that, notwithstanding subs.(2), a peace officer, acting under subs. (1) (that is, arresting without a warrant) isdeemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Code or any other Act ofParliament. Paragraph (

b) goes on to provide that this presumption does not necessarily prevail in any other proceedings, that is, in anyproceedings other than proceedings under the Code or

an Act of Parliament. This subsection has no relevance to the question in issue onthis appeal. In the present case, Adams was arrested without a warrant for impaired driving. That is an offence within para. (

b) of subs.(2).Notwithstanding this, because of subs. (3) no reliance can be placed on subs.(2) to establish that the peace officer, for non-compliancewith the requirements of that subsection, was not acting lawfully and in the execution of his duty.

In my respectful view, the learned trialJudge erred in law failing to give proper effect to subs.(3). [48] That passage was approved by the British Columbia Court of Appeal in R v McKibbon (1973), (BC CA),12 C.C.C. (2d) 66 (B.C.C.A.), and by the Alberta Court of Appeal in R v Fuhr, (1975) (AB CA), 4 W.W.R. 403 [AltaC.A.]. [49] In the case at bar, the trial judge erred in not considering s.495(3) in the consideration of the Charter breach and the attendantconsideration of the relevant principles of exclusion of evidence under s.24(2) of the Charter. [50] Finally, there are the provisions of s.524(2)(

a) of the Criminal Code. That

section was not argued before the trial judge oraddressed by the trial judge. It states: 524(2) Arrest of accused without warrant - Notwithstanding anything in this Act, a peace officer who believes on reasonable groundsthat an accused (

a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that wasissued or given to him or entered into by him, or may arrest the accused without warrant. ....

[ 51 ] It allows a peace officer, who believes on reasonable grounds that an accused has contravened an undertaking given by him, the authority to arrest the accused without a warrant. [ 52 ] In that the trial judge found the police officers were allowed to enter the residence with the consent of Hartai, the trial judge should have addressed the issue as to whether Constable Ling possessed the reasonable grounds to believe Hartai had contravened the conditions in the undertaking, to abstain from the consumption of alcohol or other intoxicating substances.

The evidence certainly presented an air of reality on this point. [ 53 ] The trial judge failed to consider s.524(2)(a). This was an error of law. That consideration must be addressed. [ 54 ] For the various reasons set out the breaches of ss.7 and 9 of the Charter are set aside. With this finding, it is not necessary to consider the decision of the trial judge to exclude evidence under s.24(2) of the Charter after she found the breaches of ss. 7 and 9 . [ 55 ] Consequently, the acquittal is set aside. [ 56 ] A new trial is ordered on Count 3.

Heard on the 3rd day of March, 2016 Dated at the City of Calgary, Alberta this 18 th day of April, 2016 . A.G. Park J.C.Q.B.A. Appearances: Britta Kristensen for the Appellant Kaysi Fagan for the Respondent