Her Majesty the Queen - v. -, 2016 SKPC 099

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2016 SKPC 099 Date: July 26, 2016 Information: Y362582 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.S. Appearing: Mr. Daniel Forbes For the Crown Ms. Joelle Graham For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act .

_____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The accused, A.S. is charged as a youth with assaulting a peace officer engaged in the execution of his duty, contrary to section 270(1) (

a) of the Criminal Code . The incident giving rise to the charge arose on October 12, 2014, at which time the young person was approximately 15 years of age. Defence counsel does not dispute that the accused’s conduct is legally capable of constituting an assault peace officer. The defence argues that the accused’s rights have been infringed or denied in various respects, contrary to the Canadian Charter of Rights and Freedoms , and asks that I exclude the Crown evidence and acquit the accused. THE EVIDENCE [ 2 ] The first witness called was Constable Ryan Cooney, of the Weyburn Detachment of the RCMP.

He testified that at the time of this incident, he had been with the RCMP for approximately five years. At approximately 12:49 a.m. on October 12, 2014, he and Constable Kabatoff were dispatched to the […] First Nation to answer a 911 call regarding a possible sexual assault upon a young person. [ 3 ] They arrived at the home and went to the front door. At the front door, they could hear yelling and arguing from the inside. They knocked at the door, and were directed to “come in”. They entered the house, and viewed a stairwell going up from the door or porch area.

At the top of that stairwell was the accused, A.S., and two older women. A.S. was kicking at the two women. The officer said that he asked the accused to calm down and attempted to tell her that she was not in any trouble. The accused paid no attention to this, and continued to yell and swear. She continued to kick at the other two women. The officer told A.S. she was under arrest for breach of the peace. The officers then put cuffs on the accused, and walked her downstairs and outside of the house. [ 4 ] At that time they noted that the ambulance was already there and in front of the house.

On the driveway, the accused just sat down on the driveway. The officers helped her back up and told her they were taking her to the ambulance to help her. The accused was very angry and upset and did not want to go to the ambulance. A little further on, and closer to the ambulance, the accused sat down again. Again, the officers picked her up and dragged or assisted her in walking the rest of the way to the ambulance. At the ambulance, officer Cooney was standing right beside the accused. At that time, she turned and spit on the side of his face and head.

He pushed her up against the side of the ambulance, and advised that now she was under arrest for assault peace officer. He held her against the side of the ambulance for a short time while she was briefly examined by the EMS personnel. She was then taken to the police car. After she was lodged in to the back of the police car, the officer spoke to the two women at the home, one of whom was the accused’s mother. The officer told the mother, Ms. C.D., that the accused would be held in custody for the night. He said the accused needed to calm down. He suggested that Ms.

C.D. come to Weyburn detachment the following morning to deal with this matter. [ 5 ] It would appear that the officers and the accused arrived at Weyburn Police Service at approximately 1:30 a.m. At that time, Constable Kabatoff lodged the accused in cells and Constable Cooney left to Weyburn hospital, to be cleaned up and tested for possible medical problems after having been spat upon. [ 6 ] Defence counsel crossed-examined Constable Cooney as to the reason for placing the accused under arrest. He stated that the accused was lashing out and was clearly the aggressor.

For everyone’s safety and to place control on the situation, he placed the accused under arrest. He advised that she was under arrest for a breach of the peace. He testified that he felt he had appropriate grounds to arrest her for breach of the peace. He agreed that at the time of placing her under arrest, he did not advise of her Charter rights. He also agreed that at the time of placing her under arrest, he was aware that she was possibly a victim of a sexual assault. He agreed that the accused was very upset and “inconsolable” throughout this incident. He agreed he told Ms.

C.D. that she would be able to speak to the accused and everything would be straightened out in the morning. He also agreed that he did not make any calls to the Ministry of Social Services or pursue other options before lodging the accused in cells. [ 7 ] Constable Eric Peters of the RCMP also testified. He testified that he began his shift at approximately nine a.m. on October 12, at the Fillmore Detachment of the RCMP. He read his emails and briefly reviewed file material. Then he went to Weyburn Detachment to deal with this matter, arriving there between 10:30 and 11:00 a.m.

He moved the accused from cells at the Weyburn Police Service office to the Weyburn Detachment of the RCMP. The accused’s mother then arrived at the station. The accused and her mother were allowed to consult privately with legal counsel. Thereafter, the officer obtained a warned statement from the accused. Defence counsel then admitted as a fact that when interviewed by Constable Peters, the accused advised that no sexual assault had occurred. After the taking of this statement, the accused was released to the custody of her mother. [ 8 ] The accused, A.S. testified. She is presently 17 years of age.

At the time of this incident she was 15. She lives on the […] First Nation. She testified that during the evening hours of October 11, she was with some friends and did a considerable amount of drinking. [ 9 ] The accused said that they were at her grandmother’s house and she and her sisters were drinking. At that time, one Jody Lonethunder joined them. I gather that Mr. Lonethunder is considerably older than the accused. Later they went inside the house. Then some cousins of hers came to the house. The cousins became suspicious and called the accused’s mother advising that Jody Lonethunder was there.

Within minutes, the accused’s mother, Ms. C.D. was at this home. I gather that Mr. Lonethunder quickly left. The mother

believed that a sexual assault had occurred, and called the police. The mother and the accused argued. The accused wanted to leave buther mother wouldn’t let her and held her there. That is when the police arrived. The accused testified that she tried to kick at her motherand her grandmother. At that time the police advised that she was under arrest and they put her in cuffs. On the way out to the policecar, she sat down on the ground. She said she thought they were taking her to jail. It hurt when they picked her up and dragged hertowards the police car.

As a result, she was mad and turned and spit on Constable Cooney. At that time he said she was under arrest forassault peace officer. [10] She testified that once in the police car, she was asked if she wished to call a lawyer, and she said yes. She then asked aboutcalling her dad and the officer said no. They then drove her to Weyburn and she spent the night in jail. She testified that she did not getto talk to a lawyer or her dad. [11] She testified that she resisted the police because she was scared. She didn’t want to get in trouble for drinking, and she was aminor.

She testified that she didn’t know why she spit on the officer, or what she hoped to accomplish by this. She said she was justmad. [12] The accused had earlier testified that she wanted to get away from her mother. That is why they argued and fought. I askedher why she didn’t simply leave with the police. She said she was scared and didn’t want to get into trouble. She said she was scaredthat she wouldn’t be able to go back to the reserve. I asked who would stop you. She said the social workers.

She indicated she wasscared that she would be put in a home. [13] The last person to testify was the mother of the accused, Ms. C.D.. She testified that she was advised that her daughter waswith Jody. She immediately went there and found them in the laundry room. She testified that she was very upset because he should notbe with her 15 year old daughter. She assumed that the two had been in a sexual relationship. She thought this was a crime and called911 right away. She then attempted to block her daughter from going downstairs. [14] The police arrived and they let them in.

The officer tried to talk to the accused but she wouldn’t cooperate. The officer thencuffed her. She agreed that the accused was kicking at them. [15] Ms. C.D. was clearly upset because she felt that her daughter had not committed a crime. She felt that Jody had committed thecrime, but the police were treating her daughter like a criminal. She said little efforts were made to calm her daughter down. It seemedto her that the police didn’t know what to do. She said this incident made the relationship with the police more difficult. She had calledthem as an agency for assistance.

She advised she probably wouldn’t call the police if she had it to do over again. ANALYSIS WAS THERE A BREACH OF THE ACCUSED’S CHARTER RIGHTS BY THE OFFICER NOT PROPERLYINVESTIGATING THE SEXUAL ASSAULT ALLEGATION, AND PLACING THE ACCUSED UNDER ARREST? [16] The Defence clearly established that the police were dispatched to investigate a possible sexual assault. They went to thehome for that purpose. Defence counsel argued they should have been dealing with the accused as a victim at that time.

The placementof the accused under arrest was a completely improper way of dealing with and investigating a possible sexual assault. This, in and ofitself, was a breach of the accused’s Charter rights. [17] There are some aspects of this argument that I wholeheartedly agree with, and some that I must disagree with. I am incomplete agreement with defence counsel that the officers dealing with this sexual assault complaint was very unorthodox or improper. I have never heard anyone even suggest that it is proper or acceptable to place a victim of a possible sexual assault under arrest.

I do notpurport to be any kind of expert on the appropriate technique to be used in investigating a sexual assault. However, I have no hesitationin suggesting that there must have been better and alternative techniques or approaches that could have been used. [18] Having said this however, I do not believe the accused’s Charter rights have been infringed by reason of an inappropriateinvestigative technique. The Canadian Charter of Rights and Freedoms does not speak to the right of an individual to have policeinvestigate a matter in a particular fashion.

As a result, I am of the view that there was no Charter breach, by reason simply of theofficer’s investigative technique or lack of compassion for the accused. DID THE OFFICER LAWFULLY ARREST THE ACCUSED FOR BREACH OF THE PEACE OR WAS THE DEFENDANTUNLAWULLY ARRESTED AND DETAINED CONTRARY TO HER CHARTER RIGHTS? [19] Defence counsel argued that Officer Cooney did not have the right to arrest the accused for breach of the peace. I disagree.

Section 31(1) of the Criminal Code reads as follows: Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting anyperson whom he finds committing the breach of the peace or who, on reasonable grounds, the peace officer believes is about to join in orrenew the breach of the peace. This

section was discussed in R v Lefebvre (1984) (BC CA), 15 CCC (3rd) 503 (BCCA). The court concluded thatwhere a police officer found an individual causing a disturbance the officer was justified in arresting for a breach of the peace. In thiscase, the uncontroverted evidence is that the accused was attempting to kick at her mother and grandmother. In my view, this is a breachof the peace and her arrest for breach of the peace was lawful.

[ 20 ] Even if I concluded that the officer could not arrest for breach of the peace, I would still conclude that the officer found the accused committing the criminal offence of assault, and her arrest on that basis was justified. In argument, defence counsel suggested that I should not consider whether an arrest on the basis of assault was justified, as the officer did not advise the accused she was being arrested for assault. In my view, in most cases, it is not appropriate that the police officer be required to accurately state each and every charge that may be laid following an arrest.

The officer is required to advise of the reason for the detention and arrest. The fact that the accused was kicking at her mother and grandmother, and the officer advised of an arrest for breach of the peace was adequate in the circumstances. There was no Charter breach on this basis. DID THE OFFICER LAWFULLY ARREST AND CHARGE THE ACCUSED FOR ASSAULT PEACE OFFICER? DOES THE ACCUSED HAVE A DEFENCE TO THE CHARGE OF ASSAULT PEACE OFFICER, AS SHE WAS RESISTING AN UNLAWFUL ARREST? [ 21 ] There is no question that the actions of the accused, in spitting in the face of the police officer, constituted an assault.

The only issue is whether the accused was justified in taking this step to resist an unlawful arrest by the officer. I have already determined that the arrest of the accused was lawful. As a result, the accused was not entitled to resist that arrest. In addition however, I would rely upon the case of R v EBK , 2002 YKYC 6 . At paragraph 38, the Court stated: Spitting can rarely be seen as a force that resists arrest. If the accused is handcuffed, in jail, or subdued in a manner that spitting cannot be reasonably viewed as a means of resisting, then it must be regarded as an assault.

The force used must be engaged to resist arrest. Spitting after an arrest has been affected, can only be seen for what it is, a disgusting manner of expressing frustration or anger. In this case, the arrest clearly had been affected, and spitting was not

an act of resistance. It was an assault. The arrest and detention of the accused for assault peace officer was justified. WERE THE ACCUSED’S CHARTER RIGHTS BREACHED IN THAT SHE WAS UNLAWFULLY DETAINED, AS OPPOSED TO BEING RELEASED TO HER PARENT? [ 22 ] Stated a little bit differently, is this an over holding case, and have the accused’s Charter rights been breached by reason of that over holding? The leading Saskatchewan authority on over holding issue is the case of R v Salisbury , 2011 SKQB 153 and 2012 SKCA 32 . In that case, Mr. Salisbury was detained for nine in a half hours after blowing .18.

In the Queen’s Bench decision, Mr. Justice Gerein determined that there was over holding and a breach of

section 9 of the Charter . However, he determined that there was no connection between the breach and the charges and as a result the remedy of the stay of proceedings was disproportionate to the violation of the Charter . His decision was upheld by the Court of Appeal. Since then, on a number of occasions, the Court has imposed the minimum penalty as a remedy for over holding. See for example R v Binetruy , 2014 SKPC 3 and R v Sherstobitoff, 2013 SKPC 77 . In this case, the accused was held for a period of approximately ten or eleven hours following her arrest, before she was finally released to her mother.

Section 28 of the Youth Criminal Justice Ac t makes the provisions of

section 515 and following, regarding judicial interim release, applicable to young persons. Section 25(2) of the same Act states as follows: Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel and be given an opportunity to obtain counsel.

Section 29(2) of the same Act : A youth justice court judge or a justice may order that a young person be detained in custody only if … [ 23 ] In this case, the Crown made no attempt to argue that any of the stated circumstances for detention of a youth accused were present. Simply stated, there is no factual basis upon which I can conclude that the holding of this accused for some ten or eleven hours following her arrest was justified. I clearly must conclude that the accused was unlawfully detained during this time in breach of her rights under

section 9 of the Charter . The fact that this accused is a young person, causes me to conclude that the Charter breach was more serious or egregious than would be the situation if I were dealing with an adult. REMEDY AND CONCLUSION [ 24 ] I am mindful of the fact that the accused was very young, being just 15 years of age, at the time of this incident. The officers approach, of placing the accused under arrest, while legally tolerable and appropriate, was very unorthodox, and not appropriate in dealing with the possible sexual assault.

In the circumstances, this unorthodox approach exacerbated an already tense and fractious situation. The accused reacted by committing the criminal offence of assaulting a peace officer. Thereafter, there was a serious breach of her Charter rights in that she was unlawfully detained for a period of some ten to eleven hours. In all of these circumstances I have determined that the appropriate remedy is to grant the accused an absolute discharge, and I so order.

Dated at the City of Weyburn, the Province of Saskatchewan this 26 th day of July 2016. _____________________________________ D. Kovatch, J