R. v. Roach Date:, 2016 BCPC 195

Citation: R. v. Roach Date: 20160115 2016 BCPC 195 File No: 223887-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. JUSTIN MICHAEL ROACH EXCERPTS FROM PROCEEDINGS RULING ON CHARTER ISSUES OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: C. Smith Counsel for the Defendant: N. Hartney Place of Hearing: Vancouver , B.C. Date of Hearing: January 15, 2016

Date of Judgment: January 15, 2016 [ 1 ] THE COURT: This is a decision with respect to Mr. Roach. Mr. Roach is charged with theft from a Walmart store on October 31st, 2014. Mr. Ng was a loss prevention officer employed by Walmart. He was in a Walmart security office watching the closed- circuit video when he saw the accused steal a pair of shoes. He alerted other security officers to wait and be ready for when the accused exited via the north exit door. Mr.

Ng walked from the security office to the north exit doors, but waited just inside the Walmart store. [ 2 ] When the accused exited, he was immediately followed by another Walmart loss prevention officer, Mr. Freddy Lau. Mr. Lau reached out to grab the accused, but the accused struggled. Mr. Lau chased him for several feet and then grabbed his jacket and they both fell to the ground. Another loss prevention officer by the name of Zack came to assist Mr. Lau. As the three men tried to subdue Mr. Roach, he kicked, struggled, and refused to cooperate. [ 3 ] Mr.

Deboric [phonetic] kept yelling at Roach to keep his hands in view, but Roach disobeyed and kept trying to grab something in his waistband. Mr. Lau had identified himself as a Walmart security officer when he first approached the accused. During the struggle, a knife fell out of Roach's clothing and was kicked away by a helpful bystander. Mr. Lau saw the accused reaching for something in his waistband. He could not immediately see what it was he was reaching for. He yelled, "He's reaching for something." Then he saw it was a can of bear spray. Mr. Lau yelled at Roach, "Drop it, drop it." [ 4 ] Mr.

Lau said that he hit the accused in the face with a palm strike. He said that he did that to distract him, not to injure him. A witness contradicted Mr. Lau. The witness said that Lau hit him with one to three palm strikes. [ 5 ] Mr. Lau said the accused did not drop the can of bear spray and a tug-of-war began between him and Mr. Lau. After about 15 to 30 seconds, Mr. Lau succeeded in prying the bear spray out of Roach's hand and threw it on the ground. Just before Mr. Lau was able to pry the bear spray from the accused's hand, he heard somebody yell, "Knife, knife. He has a knife." Mr.

Lau never saw the knife, but he heard the warning. [ 6 ] At this point, Mr. Ng ran out the door and attempted to handcuff the accused. The accused continued to struggle, kick, and resist arrest. There were now four men trying to subdue, arrest, and handcuff him. While struggling, the accused's t-shirt flipped open and both Mr. Ng and Mr. Deboric saw a gun in the accused's waistband. Mr. Deboric yelled, "Gun, gun." Mr. Ng pulled the gun from the accused's waistband and put it on the ground. He continued trying to handcuff Mr. Roach while the other three loss prevention officers tried to subdue Mr.

Roach, but to no avail. A civilian driving a truck stopped, picked up the gun. [ 7 ] The accused kept putting his hands on his stomach preventing Mr. Ng from handcuffing him with his hands behind his back which was the usual method of handcuffing suspects. Mr. Ng was finally able to put the handcuffs on Mr. Roach, but the best he was able to accomplish was to put the handcuffs on his hands while in front of him. [ 8 ] It was suggested to Mr. Lau when he was in the witness box that he had kneed the accused several times. Mr.

Lau denied this saying that he had placed his knee on the accused's back for the purposes of stabilizing himself, but not to hurt him while the struggle ensued. However, when the video was watched, it was evident that at least on one occasion, Mr. Lau did knee strike the accused on his chest. [ 9 ] Defence argued two issues: One, the Charter of Rights and Freedoms applied to the actions of the loss prevention officers when they are in the execution of their duties which in this particular case involved the arrest of Mr. Roach.

The second argument was that the loss prevention officers violated the accused's rights when they used excessive force to arrest him. [ 10 ] Dealing with the first issue, the Security Services Act of B.C. gives the loss prevention officers their licenced authority to act as security guards whose job it is to prevent the loss of property. See s. 1 of the Act.

All of the loss prevention officers involved in this case were licenced under the Act. [ 11 ] The case law for the Province of Alberta hold that security workers, security guards, and loss prevention officers are all indeed bound by the Charter of Rights when they are detaining and/or arresting persons suspected of theft.

The Alberta cases indeed go one step further and hold that civilians who exercise their common law right to effect an arrest, sometimes referred to as a "civilian arrest," are also bound to do so in a compliance with the Charter of Rights . [ 12 ] The case law, however, from the courts of B.C. and the Supreme Court of Canada hold that security workers, security guards, and loss prevention officers are not bound by the Charter of Rights when they are detaining and/or arresting persons suspected of crimes including theft.

The defence submits that this Court should follow the Alberta line of authorities as opposed to following the B.C. and Supreme Court authorities. [ 13 ] Not only am I bound by the principle of stare decisis and have no discretion not to follow the reasoning used by the B.C. courts and the Supreme Court of Canada -- sorry.

I should have not put the word, "not only." I am bound by the principles of stare decisis and indeed am bound by the authorities in the British Columbia and the Supreme Court of Canada in deciding that the Charter of Rights does not apply in this case to the loss prevention officers when they were arresting Mr. Roach. [ 14 ] The cases were set out in a considerable amount of detail. I am not going to give the cites for them because this is an oral judgment and they are readily available: R. v. Lerke , Alberta Court of Appeal; R. v. Deacon , B.C. Provincial Court; R. v. Wilson , B.C. Supreme Court; R. v.

Fitch , B.C. Court of Appeal; Eldridge v. B.C. (Attorney General) , Supreme Court of Canada; A. v. A.M.J. , B.C. Court of Appeal; R. v. Buhay , Supreme Court of Canada; R. v. Asante , Mansah , M-a-n-s-a-h, Supreme Court of Canada; R. v. N.S. , Ontario Court of Appeal; and R. v. Skeir , Nova Scotia Court of Appeal; R. v. Dell , Alberta Court of Appeal; R. v. Boujikian , Ontario Court of Justice; R. v. Asp , B.C. Supreme Court; and R. v. Fitl , Alberta Queen's Bench. [ 15 ] Now, it is important for me to note that the Supreme Court of Canada in the Buhay case set out certain guidelines to use when

establishing whether somebody is or is not bound by the Charter of Rights .

They said, first of all, that you have to look at whether it is a government body of some kind, example, RCMP; whether they are acting as agents of the police; and whether or not they are engaged in government functions. [ 16 ] In Buhay , paragraph 28, they specifically said that private security guards are not delegates of the police and the search warrant which was executed in that particular case held that security guards who search bus lockers were not covered by being a government agency, acting as agents for the police, and were not engaged in government functions and, accordingly, were not bound by the Charter .

I appreciate that was a search case. Ours is an arrest case. [ 17 ] R. v. A.M.J. was a Decision of the B.C. Court of Appeal. This 1999 Decision was pre- Buhay decision. While not specifically considering R. v. Lerke referred to in the R. v. A.M.J. Decision, it rejected the Lerke approach holding that a person does not become an agent of the state by effecting an arrest. [ 18 ] In A.M.J. , the complainant believed the 14-year-old friend of her daughter stole a video from her. After the civilian threatened the young girl, she lied about catching her on video.

The young person made an inculpatory statement to the civilian. While the B.C. Court of Appeal allowed the accused's appeal and set aside the conviction, the Court did reject the argument that a non-police officer effecting an arrest has the same duties as a police officer to inform the person of their rights. [ 19 ] That was a civilian case, but the wording of A.M.J. supports the view that security guards who are paid by private agencies to enforce the law do not necessarily fall within any different status than a citizen. While on first blush, it would seem that perhaps they should.

However, when one goes on to read Buhay and the Skeir case and the Asp case from B.C. as well as the A.M.J. case, one comes to the conclusions, as I do -- and I will repeat from Crown's submission book because it does make it clear and complies with what I see the law as, at page 29, the Crown wrote [as read in]: This court is bound by the decision of the B.C. Court of Appeal in R. v. A.M.J. While Buhay was not an arrest case, the Supreme Court of Canada referred to an arrest by private citizens and specifically recognized that security guards arrest individuals on a regular basis.

The court was alive to the issue. [ 20 ] That was at paragraph 31. [As read in]: Similarly in S.N. , the Ontario Court of Appeal rejected the application of the Charter as being applicable to private security guards even assuming there was an arrest. In Skeir , the Nova Scotia Court of Appeal conducted the Eldridge and Buhay analysis, concluded the Charter did not apply to arrest by private security guards. Those authorities are to be preferred over the application of the historical analysis done in the Lerke case in modern day Canada.

In Burnaby, RCMP, in this case, did not delegate their duty to enforce the criminal law thereby requiring or authorizing the Walmart loss prevention officers to step in to enforce the law on their behalf. As stated in Skeir , there has been neither an express delegation nor an abandonment in whole or part of the police arrest power to private security firms.

As the court said in Buhay , it cannot be said that the state abandoned in whole or in part an essential public function over to someone in the private sector. [ 21 ] Many courts have said that judges should not avail themselves of an opportunity to make obiter dicta comments in their judgments and that, of course, is a wise direction. I am bound by the decisions in the B.C. Court of Appeal and Supreme Court that I have referenced.

Do I now go on or do I not go on to make comments which would be obiter dicta as to whether the force used was excessive or not? [ 22 ] I would not make those comments without a full argument by both Crown and defence. Given that it no longer is an issue, given that the Charter rights do not apply, I do not intend to make a ruling on whether excessive force was used or not in the course of his arrest. [RULING ON CHARTER ISSUES CONCLUDED]