Her Majesty the Queen - v. -, 2012 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 156 Date: September 24, 2012 Information: 24475107 Location: La Ronge, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Theodore Robillard Appearing: Ed Stephens For the Crown Ruth Fafard For the Accused DECISION F. DAUNT , J [ 1 ] Theodore Robillard stands charged that he did, on or about the 14 th day of February 2012, at Black Lake First Nation:

(1) Wilfully obstruct Cst. Rouheal Bose, a peace officer engaged in the lawful execution of his duty by running away when telling Theodore Robillard that he was under arrest, contrary to

section 129 (

a) of the Criminal Code .

(2) Resist Sgt. Brian Udey, a peace officer engaged in the lawful execution of his duty by resisting when trying to be arrested, contrary to

section 129 (

a) of the Criminal Code . (3) ...

(4) Assault Cpl. Larry Kurtenbach with intent to prevent the lawful arrest of Theodore Robillard, contrary to section 270(1) (

b) of the

Criminal Code. [2] Crown called two witnesses, Constable Rouheal Bose and Sergeant Brian Udey, both of the Stony Rapids RCMP. Defencealso called two witnesses, Elizabeth Alphonse and the accused, Theodore Robillard. [3] Sgt. Udey testified that the Stony Rapids police received a telephone call at about 2:00 p.m. from Elizabeth Alphonse, a bandcouncillor with the Black Lake First Nation. She said that she picked her adult son Kyle up from Ted Robillard’s house, where he hadbeen drinking all night. She told Sgt. Udey that she heard two gunshots from inside the house. She then took Kyle home. Sgt.

Udeyconsidered her an “upstanding member of the community” because she was a band councillor. She refused, however, to let the policespeak to Kyle on the telephone. Sgt. Udey agreed that this was a little suspicious. [4] Elizabeth Alphonse testified that she herself had not heard any shots. Someone had called the band office and made thiscomplaint to her, and she simply passed it on to the RCMP. She denied telling the police about anything that Kyle had said to herregarding a firearm in the residence. Ms.

Alphonse’s first language is Dene, and her ability to communicate in English is somewhatlimited. [5] In any event, Sgt. Udey understood the complaint to be that an upstanding member of the community had heard two shotsfired inside Ted Robillard’s residence. Mr. Robillard has a history of violence, and so the police took this complaint very seriously. Sergeant Udey decided that they needed to investigate further. Their first task was to interview Kyle Alphonse, “regardless of whatElizabeth Alphonse wanted or didn’t want”.

Once they had spoken to the eyewitness, “then there would be a direct approach to TedRobillard’s residence and investigation continued”. There was no discussion at this time about getting a warrant to enter Mr. Robillard’sresidence, either to search it for firearms or to arrest Mr. Robillard. Neither did it occur to the officers to interview Mr. Robillard’sneighbours to see if they could confirm the report of shots being fired. [6] En route from Stony Rapids to Black Lake, the police received further information that Ted Robillard was intoxicated andwalking home from the band office.

For some reason that was not adequately explained, things then became urgent in the sergeant’smind. Although he had no further information regarding the gun complaint, he instructed Constable Bose to try to arrest Mr. Robillardbefore he got home. It is unclear for what offence he was to be arrested. [7] Constable Bose saw the accused walking down the street carrying a shopping bag and yelled that he was under arrest. Mr.Robillard kept walking. Constable Bose yelled several more times that the accused was under arrest and gave chase. Mr.

Robillard hada head start and, after a brief slip in the snow, reached his house before Constable Bose could catch up. At no time did Constable Boseinform Mr. Robillard of the reason for his arrest, nor did he inform this Court for what charge he was purporting to arrest Mr. Robillard. Whatever it was, it was certainly not a reason that would have been readily apparent to Mr. Robillard under the circumstances. Constable Bose shouted words of arrest several times, so there was time to shout out the reason for arrest as well. [8] Mr.

Robillard was never in fact under arrest, as there had been no submission on his part, and no act of control on ConstableBose’s part (R. v. Whitfield, (SCC), [1970] SCR 46). [9] Constable Bose, however, informed Sergeant Udey that he had arrested Mr. Robillard. Sergeant Udey then mistakenlybelieved the accused had escaped lawful custody. He and Corporal Kurtenbach joined Constable Bose outside Mr. Robillard’s house. Sgt. Udey testified on cross-examination that he had no concern for the safety of anyone in the house. His concern was that “the generalpublic” was in danger.

However, nothing in the complaint suggests shots were fired anywhere but inside the house. There was noevidence of Mr. Robillard shooting out the window, endangering the community. Their only information was the opinion of Ms.Alphonse: the sounds she heard inside the house were gunshots. This information was unconfirmed by anyone who might havewitnessed it or anyone in the neighbourhood who might also have heard gunshots. [10] The police officers had a brief discussion amongst themselves. They took about 90 seconds to convince themselves that theydid not need a warrant to enter Mr.

Robillard’s home, believing that the circumstances were exigent or that they were in hot pursuit. Thepolice banged on Mr. Robillard’s door, demanding to be let in. When he refused, they broke down his door and forcibly controlled him. In the course of the ensuing melee, Mr. Robillard kicked Corporal Kurtenbach in the chest. At no time was Mr. Robillard told the reasonfor his arrest. At no time did he submit to the control of the police. Furthermore, neither police witness informed this Court of theoffence for which they were arresting Mr. Robillard.

[11] For his part, Mr. Robillard testified that he did not see Constable Bose outside his residence. The first contact he had with thepolice was when they kicked in his door. He says he did not resist in any way. He denied kicking Corporal Kurtenbach. Rather, hesays, the police broke into his house and beat him up. He had no idea why they were doing this. [12] Afterward, no weapons were found in the house. When the police resumed their investigation, they found no evidencesubstantiating the original complaint.

ANALYSIS [13] The burden is on the Crown to prove the elements of the offences beyond a reasonable doubt. One element all of the chargeshave in common is that the police were “engaged in the lawful execution of their duty”. [14] Surrounding this question, several issues arose in this case, including what, in fact, the police were told. What information didElizabeth Alphonse give them to provide grounds for arrest? Did they have the necessary grounds to arrest Mr. Robillard without awarrant? Were circumstances so exigent that the police were empowered to enter Mr. Robillard’s home without a warrant?

Did thepolice have the power to enter his home without a warrant because they were in hot pursuit? [15] Those thorny issues notwithstanding, the applicable law is very simple. Count one charges that Mr. Robillard obstructedConstable Bose by running away while being told he was under arrest. Mr. Robillard was never in fact under arrest, because Mr.Robillard had not submitted, and Constable Bose had not touched him (R. v. Whitfield, (SCC), [1970] SCR 46). AsJudson J. states at paragraph 3 of that case: The correct proposition of law is stated in 10 Hals., 3rd ed., p. 342, in these terms: 631. MEANING OF ARREST.

Arrest consists of the actual seizure or touching of a person's body with a view to his detention. The merepronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arrestingofficer. An arrest may be made either with or without a warrant. [16] Furthermore, Mr. Robillard was not required to submit to the arrest, not having been informed of the reason for it (R. v.Evans, (SCC), [1991] 1 S.C.R. 869). To quote McLaughlin J. at paragraph 26: The right to be promptly advised of the reason for one's detention embodied in s. 10(

a) of the Charter is founded most fundamentally onthe notion that one is not obliged to submit to an arrest if one does not know the reasons for it. R. v.

Kelly (1985), (ONCA), 44 C.R. (3d) 17, 7 O.A.C. 46, 17 C.C.C. (3d) 419, 12 C.R.R. 354 (C.A.), [C.C.C.] at p. 424. [17] To quote Sopinka J. (concurring in the result) at paragraph 71: The right to be informed of the true grounds for the arrest or detention is firmly rooted in the common law which required that thedetainee be informed in sufficient detail that he or she "knows in substance the reason why it is claimed that this restraint should beimposed" (Christie v. Leachinsky, [1947] A.C. 573, [1947] 1 All E.R. 567 (H.L.) at pp. 587-588).

When an arrest is made pursuant to awarrant, this is set out in writing in the warrant. An arrest without warrant is only lawful if the type of information which would havebeen contained in the warrant is conveyed orally. [18] Count one on the information, charging obstruction, must fail. Without being told the reason for his arrest, the accused wasnot required to submit and cannot be convicted of obstruction. [19] As for the events inside his residence, again, not having been informed of the reason for his arrest, Mr. Robillard was notrequired to submit. The failure to inform Mr.

Robillard of the reason for his arrest rendered the arrest unlawful. As he was in peaceablepossession of his own home, he was entitled to use reasonable force against trespassers. Count two alleges that Sgt. Udey was “engagedin the lawful execution of his duty”. Count four alleges that Mr. Robillard assaulted Corporal Kurtenbach with intent “to prevent [his]lawful arrest”. The Crown has failed to prove that the arrest was lawful, and the accused is acquitted on those counts as well. OTHER ISSUES

[20] If I am wrong on that, I would also find that there were not sufficient grounds to arrest Mr. Robillard; all they had was oneunsubstantiated complaint from a person unfamiliar to the investigating officer. Sergeant Udey acknowledged that more investigationwas required before approaching Mr. Robillard. In fact, that was their primary intention when they went to Black Lake. Although Sgt.Udey considered Elizabeth Alphonse a reliable source, he based his assumption on her standing as a band councillor and nothing more. There was no indication that she had provided reliable information in the past.

His unfamiliarity with Ms. Alphonse is evidenced by thefact that he was not aware that she was Mr. Robillard’s sister. He found suspicious her refusal to let him speak to her son Kyle on thetelephone. Subsequently, her information was found unreliable. No weapons were found in Mr. Robillard’s home. Upon investigation,nobody would say they saw a firearm in Mr. Robillard’s home, or that they heard gunshots. Because Ms. Alphonse’s first language isDene, there was perhaps a serious miscommunication. Nothing inherent in the information she gave to Sgt. Udey could assure him thatit was reliable.

In short, the police tried to arrest Mr. Robillard before they investigated the complaint. [21] The forcible entry into Mr. Robillard’s home to arrest him without warrant was not lawful. First of all, for s. 529.3 toauthorize entry, the conditions for obtaining a Feeney warrant have to exist, and it must be impracticable to obtain one. One of theconditions for obtaining a Feeney warrant is that grounds exist to arrest the person without warrant. That is, the police must havereasonable grounds to believe the accused has committed an indictable offence.

Without information from Kyle Alphonse, thosegrounds did not exist. Moreover, Sgt. Udey did not know how much time it would take to obtain a telewarrant. Therefore, there is a lackof evidence that obtaining a warrant would be impracticable. [22] Exigent circumstances are defined in s. 529.3(2) to include circumstances in which a peace officer: (

a) Has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to anyperson; or (

b) Has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-houseand that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence [emphasisadded]. [23] The main element that must be present to establish exigent circumstances is imminent danger. In the circumstances beforeme, nothing imminent justified a warrantless entry. Sgt. Udey’s concern was the safety of the general public. However, the policereceived no information indicating danger to the general public. The fact that Mr.

Robillard was outside his home briefly did not makethe situation more urgent. [24] The case of R. v. Custer (1984), (SK CA), 12 CCC (3d) 372 (SKCA) stands for the proposition that anofficer would be in the execution of his duty in forcibly entering private premises where he believes on reasonable and probable groundsthat he is confronted with an emergency situation involving the preservation of life of a person in the dwelling-house, or the prevention ofserious injury to that person, and if a proper announcement is made before entry. Here, Sgt. Udey did not believe anyone in the homewas in danger.

It was not an emergency situation. [25] Neither were they in “hot pursuit”. This concept was defined by the Supreme Court of Canada in R. v. Macooh, (SCC), [1993] 2 SCR 802. The Court held that the police have the power to enter private premises to make an arrest where they arein hot pursuit and they have a warrant for an arrest or have the power to make an arrest without a warrant.

The essence of hot or freshpursuit is that it must be continuous pursuit conducted with reasonable diligence so that the pursuit and capture, along with thecommission of the offence may be considered as forming part of a single transaction. The pursuit of Mr. Robillard was not “continuous”with the commission of the alleged firearms offence. Thus the Crown has not established that the police were entitled to enter Mr.Robillard’s residence without warrant because they were in hot or fresh pursuit. [26] The police decided to arrest Mr. Robillard outside his home.

The reason for this arrest was not articulated and remainsunclear. It may be they were going to arrest him for being intoxicated on a dry reserve, a

summary conviction offence under the IndianAct R.S.C. 1985, c. I-5. However, no evidence was presented in this trial either that Black Lake is a dry reserve or that he was beingarrested for breaching the band bylaw. The Court cannot take judicial notice of the existence of a bylaw under the Indian Act, becausethey are not published in the Canada Gazette (R. v. Bear et al., [1982] 3 C.N.L.R. 78 (NBQB)). Without talking to Kyle Alphonse, thepolice had no grounds to arrest him for any firearms offences. It would seem that the only urgency to this new situation was this: if thepolice could arrest Mr.

Robillard before he got home, they wouldn’t have to get a Feeney warrant. [27] The police were not in the execution of their duty. The police were under no duty to arrest Mr. Robillard under thesecircumstances. Certainly, they had a duty to investigate the complaint of shots being fired, but were diverted from it when they saw Mr.Robillard outside his residence. This did not make the situation more urgent. Further investigation remained necessary.

[ 28 ] Police do have a general duty to ensure public safety. However, they had no information the public was in danger. Even if they did, that duty could have been fulfilled by less intrusive means. They could have secured Mr. Robillard’s residence from the outside while they investigated further and, if necessary, obtained a warrant to arrest Mr. Robillard and to enter his home to effect that arrest.

A warrant to search the residence for firearms, if there were grounds to obtain one, would have aided them in their investigation. [ 29 ] I find that the Crown has failed to prove beyond a reasonable doubt that the police were acting in the lawful execution of their duty, one of the essential elements of all three offences before the Court. I find that, because he was never told the reason for his arrest, Mr. Robillard was entitled to walk away from Constable Bose. He was entitled to resist the unlawful arrest of himself in his own home.

Therefore, he must be acquitted on all counts. _____________________________ F. Daunt, J