Her Majesty the Queen - v. -, 2011 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 048 Date: March 15, 2011 Information: 44658890 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kirkland Douglas Brown Appearing: G. Parker For the Crown Self For the Accused JUDGMENT BARRY SINGER , J Introduction [ 1 ] Mr. Brown is charged that he did on the 12 th of August 2009, wilfully obstruct Cst. Walz, a peace officer in the lawful execution of his duty by failing to abide by commands, contrary to

section 129 (

a) of the Criminal Code . In related matters he is charged with failing to produce a driver’s licence upon demand contrary to section 39(1) of The Traffic Safety Act at Avenue D North and 22 nd Street West, disobey signal to stop by a peace officer at 22 nd Street West and Avenue I South contrary to

section 209.1(3) of The Traffic Safety Act and possession of a prohibited weapon, to wit: knife which opens with centrifugal force without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code .

[ 2 ] Cst. Weibe had briefly detained Mr. Brown, a driver of a motor vehicle, at Avenue I and 22 nd Street. He then attempted to arrest him for failing to identify himself and failing to turn off his vehicle. A few minutes later Cst. Walz, acting upon the instructions of Cst. Weibe detained Mr. Brown at the corner of Avenue D and 22 nd Street. The charge of obstruction and failing to produce his licence resulted. Upon his arrest he was found in possession of the knife. [ 3 ] I will deal first with the obstruction charge. It is necessary to determine if Cst.

Weibe’s first detention and attempted arrest were lawful, or put another way, if at the time of the detention and attempted arrest, Cst. Weibe was acting in the execution of his duty. [ 4 ] The defence also raises the possibility that by detaining him, the police exceeded their authority, thus making his detention arbitrary and a breach of his rights under

section 9 of the Charter. If it was a breach he wishes all evidence arising from the arrest to be excluded. [ 5 ] To understand the defence in this case it is necessary for me to review in some detail the evidence called by the Crown as to the reasons for the detention and arrest. Review of Evidence DiPlacido [ 6 ] Shortly after midnight on August 12, 2009, Constables DiPlacido and Weibe arrived at 901B 22 nd Street West in the City of Saskatoon to arrest a person by the name of Karen MacDonald. 901B was in a small strip mall and is apparently both a place of business and Ms.

MacDonald’s residence. [ 7 ] These officers had been at this address about 5 or 6 weeks earlier in an attempt to arrest Ms. MacDonald. At that time, according to Cst. DiPlacido, four male individuals showed up and blocked the entrance to 901B. They questioned the officer as to why he was there and were concerned about his jurisdiction to be at the property. The two officers retreated at that time. [ 8 ] On August 12 th , Constables DiPlacido and Weibe again attended at 901B, with reinforcements, in case there was another confrontation. Cst. DiPlacido went to the front door where he made contact with Ms.

MacDonald through the glass window. She did not unlock her door but began talking on her cell phone. This information was relayed to the other officers at the scene, Weibe, Walz, Malanowich and Sgt. Boensch. All of these officers had been briefed about the previous incident and were there to assist if people again showed up to prevent the police from executing the warrant. [ 9 ] DiPlacido testified that soon after Ms. MacDonald was seen on the cell phone he noticed the accused operating a vehicle that went south on Avenue I, the side street off 22 nd Street, very near 901B. He recognized Mr.

Brown as one of the individuals who had been at the residence/business on the previous occasion. He relayed this information, as well, to the other officers present. [ 10 ] He indicated to the Court that he was concerned about Mr. Brown’s presence in the area, concerned that he and his passenger “might prevent us from doing our duty”, in fact as he said, “we had no idea what their intentions were” and that was what worried him. [ 11 ] He watched the vehicle proceed south, turn around and come back toward his position at Avenue I and 22 nd Street.

At that time he heard someone, no doubt a police officer, yell to the vehicle to stop. He then heard Cst. Weibe command the vehicle to stop. He noticed the driver roll up his window and proceed slowly into the parking lot of an oil change business on the east side of Avenue I. He thought the vehicle came to a complete stop for about 5 seconds and then saw it drive off through the parking lot and proceed east down 22 nd Street. Two police patrol cars took after the car and he lost sight of it.

[ 12 ] From his evidence it is clear that upon Cst. Weibe’s command the vehicle did stop, albeit for a short time. Weibe [ 13 ] Officer Weibe testified that he was stationed at the back door of 901B, to prevent Ms. MacDonald from leaving by that exit as they were attending to arrest her under the warrant. Sgt. Boensch was also in that area. He noticed several vehicles circle their position at a distance of about one block away and specifically noticed Mr. Brown drive south on Avenue I.

He remembers being informed by his partner DiPlacido that one of the individuals in that vehicle was one of the men who had been present the last time they had been at 901B to arrest Ms. MacDonald. He testified that he believed that individual was the passenger, not Mr. Brown the driver. [ 14 ] When the vehicle turned around and drove toward their position, he left his post, along with Sgt. Boensch and called out to the vehicle to stop. The driver’s side window was rolled up to within ½" of the top.

The vehicle did not immediately stop but then the driver complied with his commands and reversed back to where he was. [ 15 ] At first he said that he attended the driver’s window and asked for his information and to turn off the vehicle, to which the driver replied “no”. The car then drove forward at a normal rate of speed, through the oil company’s parking lot to 22 nd Street where he lost sight of it. [ 16 ] On cross-examination he testified that when he approached the vehicle he identified himself as a police officer and said that he was investigating a possible intimidation of the police.

He later explained to the Court that he stopped the vehicle because he wanted to investigate its intentions and the intentions of the occupants. He agreed that at some point he threatened to place the driver under arrest for obstruction. The obstruction was his failure to give his driver’s information. [ 17 ] Cst. Weibe went on to say that for ‘safety reasons’ based upon the information concerning the past incident at that address and the information that the occupants of the vehicle were involved in that past incident, he wanted to make sure that he or other officers were not going to get hurt.

As he said, “In order to make sure that didn’t happen, I have to identify threats.” [ 18 ] The officer felt he was well within his authority to arrest the driver for failing to identify himself because it was his belief that he can stop any vehicle and ask a driver for his licence and registration under the authority of The Traffic Safety Act.

He believes that failure to comply with that request is a criminal charge of obstruction. [ 19 ] Upon further explanation as to why he stopped the vehicle, he summarised it as follows: Given what had happened in the past, he wanted to stop the vehicle to investigate the possible intention of the occupants, even though they had done nothing wrong.

He felt he should identify the people in the vehicle, and relied upon his understanding of The Traffic Safety Act , which he believed gave him the power to stop any vehicle to identify the driver, even though the driver had not committed any wrong act. [ 20 ] As noted, he believed it was the passenger who had attended the previous attempt to arrest Ms. MacDonald. He did not explain how he was going to ascertain the intentions of the occupants or identify the passenger. Boensch [ 21 ] Sgt. Boensch testified that he arrived at the scene about 12:20 to assist in the arrest of Ms.

MacDonald through the execution of a “ Feeney warrant”. That is a warrant that allows police to use force to enter a dwelling to effect an arrest. He too was aware of the previous incident and he too observed Mr. Brown drive south on Avenue I, turn around and drive north. He thought he was informed that the driver was one of the individuals involved in the previous incident.

[ 22 ] He said that he commanded the vehicle to stop, was sure the driver turned his head, looked at him, and met his eye. According to Sgt. Boensch, the vehicle did not stop at all but continued on Avenue I, turned right and proceeded down 22 nd Street. [ 23 ] Sgt. Boensch stated his reason for wanting to stop the vehicle was that he wanted to communicate with the driver, hoping, that perhaps the driver would help get Ms. MacDonald out of the residence so that they would not have to execute the “ Feeney warrant” and he had some officer safety concerns.

He wanted to enquire of the driver what his intentions were in being in that area at that time. [ 24 ] After the car sped away, he says that Constables Walz and Malanowich then left the scene in their patrol cars to stop the accused’s vehicle. [ 25 ] A few minutes later he was called to assist Cst. Walz as the driver who had stopped at 22 nd Street and Avenue D was refusing to exit his vehicle. What happened at the scene of Mr. Brown’s arrest is no longer the subject of any charges, suffice it to say that Mr. Brown suffered some injuries.

At the time of his arrest he was in possession of a knife that is the subject of count #3. [ 26 ] The charge before me is that the accused failed to follow the commands of Cst. Walz, who was engaged in the lawful execution of his duty when he detained the accused at Avenue D. Cst. Walz’s reason for detaining the accused and making those commands were that he was instructed to arrest the accused by Cst. Weibe. Walz [ 27 ] Walz had been at 22 nd Street and Avenue I. He too had seen the accused drive a Ford Taurus south on Avenue I and then turn around and come back north.

He too was told that the driver was one of the individuals who had attended at that scene when they first attempted to arrest Ms. MacDonald. He heard the sergeant ask the driver to stop, his evidence was that he saw Sgt. Boensch hold up his hand signalling the vehicle to stop and it did. He said that he saw Cst. Weibe at the driver’s side and that the window was down a crack. He observed Cst. Weibe talk to the driver. He recalls that Cst. Weibe asked the driver to exit the vehicle but he did not hear Weibe ask for the driver’s licence or registration.

He then saw the vehicle drive forward to 22 nd Street and turn right. [ 28 ] He then ran to his patrol car and gave chase. The vehicle did not speed and he was able to catch up to it about two blocks later and two blocks from there, the vehicle turned left onto Avenue D and parked. Weibe yelled to the driver to put the vehicle in park and show his hands. The officer approached the vehicle and again asked the driver to show his hands, put it in park, unlock the door and step out. He says he issued these commands repeatedly and the accused did not exit the vehicle until Sgt.

Boensch arrived, at which time the accused was told he was under arrest for obstruction. [ 29 ] The officer agreed that he did not see the vehicle commit any infraction under The Traffic Safety Act but detained the vehicle and occupants on Cst. Weibe’s instructions. He also testified that based upon the information he had he could detain the driver for “identification” for “officer safety.” Malanowich [ 30 ] Cst. Malanowich observed the vehicle stop at Avenue I and 22 nd Street, saw it leave down 22 nd Street and saw it park on Avenue D. He attended the scene at Avenue D but dealt with the passenger.

He thought for some reason, there was a warrant out for the driver’s arrest. [ 31 ] Each of the police officers involved was in standard police uniform and readily identifiable as peace officers.

The Accused [ 32 ] The accused testified and indicated that while he had been at the business/residence over one month before, he was not called by Ms. MacDonald on this night. He happened to be driving with his friend down 22 nd Street when he saw all of the police cars at 901B. He turned beside that building and drove by; curious he then turned around and drove back. [ 33 ] He had no interaction with the officers until he was commanded to stop. He stopped his vehicle and backed up to where Cst. Weibe was standing. His window had been opened but he rolled it up so that there was only a small opening.

He asked the officer, “how can we help you” to which the officer replied “Roll the window down all the way or you will be arrested for obstruction.” [ 34 ] The accused said that he did not understand why the officer was being so demanding so he asked for the officer to call his supervisor before he was going to do anything else.

He said the constable placed his hand on his weapon, so the accused felt threatened and drove away. [ 35 ] He indicated that he heard the police car’s sirens and that they had come behind him at about Avenue F, so he turned left at Avenue D and parked his vehicle. [ 36 ] He heard Walz’s commands and said that he was not going to exit his vehicle until a supervisor arrived.

He gave his cell phone to his passenger and asked the passenger to phone his friend and have that friend call the police station and ask for a supervisor to attend. [ 37 ] The accused was sure that at no time did the officers ask for his driver’s licence and registration. [ 38 ] The accused also testified that as a truck driver he carries a folding knife. The knife was not designed to open by centrifugal force but has tabs on the blade that assist in opening it in the usual fashion. He was not aware that the knife could open by centrifugal force.

Indeed at the time of the arrest, the officer could not make the knife open in that fashion every time he tried and when he tried before the Court he had even less luck flipping it open. The accused said that he had purchased the knife at a retail outlet. Issues

A) Were the police in the execution of their duty? 1) Does The Traffic Safety Act give the police the authority to stop any vehicle they wish and ask for the driver’s licence and registration? 2) Do the police in these circumstance have a common law authority to detain an individual for investigative purposes?

B) Was the accused arbitrarily detained contrary to the Charter ?

C) If so, what is the appropriate remedy under section 24(2)?

D) Has the Crown proven all of the necessary elements of the charge of possession of the prohibited weapon? Law [ 39 ] It is only a crime to obstruct the police when they are in the execution of their duty. If they are not, then every citizen has the right to disobey a police officer’s commands. As was said eloquently in R. v. Mann [1] :

Absent a law to the contrary, individuals are free to do as they please. By contrast, the police may act only to the extent that they are empowered to do so by law. [ 40 ]

Section 209.1(1) of The Traffic Safety Act [2] states: A peace officer may require the person in charge of or operating a motor vehicle to stop the vehicle if the police officer: (

a) is readily identifiable as a police officer; and (

b) is in the lawful execution of his or her duties and responsibilities [ 41 ] Since 2006, the law in Saskatchewan has been very clear about the authority given in this

section to police officers. In R. v. Houben [3] , the Court held that the authority to stop a motor vehicle and detain the driver under section 40(8) of The Highway Traffic Act, the identical predecessor to The Traffic Safety Act , did not give the police the authority to detain the driver, unless the detention was for a reason related to the Act . As Judge Jackson determined in Houben [4] : From this Court’s recent review of the law in Ladouceur and Schaeffer and the above review, I conclude that the law may be expressed in this manner.

Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The Highway Traffic Act any stop effected by the officer is a justifiable infringement of the individual's rights under s. 1 of the Charter . While the police officer acting under s. 40(8) need not have "reasonable grounds to detain," it must be the police officer's intention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin .

The police officer need not say expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for "sobriety, licences, ownership, insurance and the mechanical fitness of cars." In sum, s. 40(8) cannot be used to create a general power of detention for investigative purposes. [Emphasis mine] [ 42 ] From my observations in Court, the police in Saskatoon and the officers involved in this case, in particular, believe that

section 209 of The Traffic Safety Act gives them the authority to stop any vehicle and determine the identity of the driver. This is not the law. The authority to detain under that Act is limited to the purposes expressed in that Act . [ 43 ] Police officers have a limited authority to detain individuals under the common law for “investigative purposes”. The authority is best set out in R. v. Mann but can be traced to earlier decisions. In R. v.

Simpson [5] , where Doherty J.A. concluded that the detention of a motorist, where not authorized by the equivalent statute as our Traffic Safety Act , because it was unrelated to the operation of the vehicle, could be in certain circumstances authorized by the common law duties of the police. He concluded that “where an individual is detained by the police in the course of efforts to determine whether the individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some articulable cause for the detention”.

This is required because there must be some objectively discernable reasons which meet a standard that is recognized in the arrest power. [ 44 ] In R. v. Mann [6] , the Court recognized a “limited power of officers to detain for investigative purposes and stressed that police powers and duties are not necessarily correlative”. To be a lawful detention for investigative purposes, the detention must be for a recent or ongoing offence.

The Court summarised investigative detention as follows [7] : To summarise, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. [ 45 ] In R. v. Yeh [8] , Richards J.A. makes it very clear an investigative detention may only occur if a crime has been committed or is ongoing or at the least that the police believe that it has been committed. They are not allowed to detain an individual out of a general

sense that he may be doing something illegal. [ 46 ] Knowledge is an important element of the crime of possession of a prohibited weapon. A knife may become a prohibited weapon if it opens by centrifugal force. [9] It is doubtful that a knife that will only open occasionally by the application of centrifugal force meets that definition.

At any rate, in order to prove the mens rea of the offence, the Crown must lead some evidence, or I must be able to infer that the accused knew that it operated in this fashion. [10] Analysis [ 47 ] There was no suggestion in the evidence that the two officers who originally attempted to detain the accused, wished to do so because he had done anything wrong. They both testified that they required him to stop to determine his intentions, that is to investigate if he was planning on committing some sort of crime. [ 48 ] Sgt. Boensch said his reason was to communicate with the accused,

a) in the hope that he might help in the arrest of Ms. MacDonald (an unlikely and unbelievable reason given his “command” to stop and the subsequent police chase and apprehension), and

b) to enquire what the driver’s intentions were in being in that area, at that time. [ 49 ] Cst. Weibe’s reasons are less apparent as he was operating under the mistake that the passenger was the individual who had interfered with police in the attempted arrest of Ms. MacDonald six weeks earlier. [ 50 ] At any rate their reasons for attempting to detain Mr. Brown were to determine what he was doing in that area, at that time. [ 51 ] It is instructive to look at Jackson J.A.’s explanation of the rule in Mann in R. v. Yew : Mann is a narrowly targeted expansion of police powers intended to fill a perceived gap in police powers to give the police the authority to address (

i) reported crimes; (ii) crimes that are being actively investigated; or (iii) in any other situation, where detention is necessary, in all of the circumstances, to determine whether a particular individual is linked to a recent or ongoing crime that is brought to the attention of the police in the field. To use the language of Professors Boucher and Landa, however, the police may not use investigative detention as a proactive or preventive measure beyond what is stated here (Boucher and Landa, supra ). The full Mann criteria are these.

A police officer cannot detain someone unless the following requirements of Mann have been met: 1. the officer decides, based on all of the information available, including a reported crime and what he or she hears, smells and sees, that a crime has been recently committed, or is being committed; 2. the officer has a reasonable suspicion that there is a clear nexus between the particular individual to be detained and the crime identified by the officer; and 3. the detention is reasonably necessary given the totality of the circumstances. [ 52 ] Thus the police in this case had no authority to detain Mr.

Brown, either under The Traffic Safety Act or under their common law powers of arrest. They were not acting in the execution of their duty. He was not obstructing the police by driving away from them at Avenue I and 22 nd Street, nor could he have obstructed them at Avenue D and 22 nd Street because Cst. Walz was arresting him on the mistaken instructions of Cst. Weibe. He was not obliged to follow the officer’s commands, in these circumstances. [ 53 ] By the same reasoning, Mr. Brown’s arrest and detention were unlawful and thus in this case “arbitrary”. Following the principles outlined in R. v.

Grant [11] , the appropriate remedy is to exclude the evidence relating to that arrest and as well the evidence of the possession of the knife and I do so.

[54] Even if I had not excluded the evidence of the possession of the knife, I accept the accused’s explanation that he did not knowthat the knife could be opened by centrifugal force and thus the Crown has failed to establish that he had the required mens rea. Conclusion [55] Therefore the accused is not guilty of all the charges before me, including the charges under The Traffic Safety Act which tobe sustainable require that the peace officer be acting in the execution of his duties and responsibilities. They were not. Dated at the City of Saskatoon this 15th of March 2011. _______________________________ B.M.

Singer, J [1]2004 SCC 52 , [2004] 3 S.C.R. 59 [2]Stat. Sask. T-18.1 [3]2006 SKCA 129 , [2006] S.J. No. 715, C.A. [4]Ibid para. 64 and 65 [5](1993), (ON CA), 79 C.C.C. (3d) 482 Ont. C.A. [6]Ibid para. 23 and para. 35 [7]Ibid para. 45 [8][2009] S.J. No. 582 C.A. [9]Section 84 (1) Criminal Code of Canada [10]R. v. Archer (1983), 6 C.C.C. (2d) 129 Ont. C.A. The Archer decision has been recently upheld by the Ontario Court of Appeal in R.v. Williams, 2009 ONCA 342 , [2009] O.J. No. 1692 [11]2009 SCC 32 , [2009] S.C.J. No. 32