Her Majesty the Queen - v. -, 2017 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 022 Date: February 16, 2017 Information: 24447748 Location: Unity, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Scott Young Appearing: M. Coetzee For the Crown Self Represented For the Accused JUDGMENT B. BAUER , J [ 1 ] Scott Young is charged that on the 15 th day of July, 2016 at Unity, Saskatchewan, he did unlawfully possess cannabis marihuana in an amount less than 30 grams contrary to section 4(1) of the Controlled Drugs and Substances Act . [ 2 ] Mr.

Young was observed by Cst. Neufeld in the Unity Hotel Bar at approximately 23:30 hours. Believing Mr. Young was on a Probation Order that contained a condition that he was not to be in a bar, Cst. Neufeld conducted a computer check and found that he had been sentenced on July 15, 2015 to a suspended sentence and placed on probation for 12 months. One of the conditions of the Probation Order was that he was not to be in a bar. Cst. Neufeld arrested Mr. Young and directed him back to his police car. Prior to

placing him in the back of his car he asked Mr. Young if he had anything on him. Mr. Young produced a package of marihuana from his pocket. Cst Neufeld subsequently released him on a Promise to Appear. [ 3 ] Mr. Young took the position at trial that the evidence of the marihuana was obtained in violation of his rights under the Charter . He states that his Probation Order started on July 15, 2015 and ended on July 14, 2016 – 12 months later. As a result, he was not committing a breach of probation and should not have been arrested. He claims his rights under

section 9 to be free from arbitrary detention and also

section 8 to be free from unreasonable search were breached. [ 4 ] Counsel for the Crown took the position that the arrest was lawful as the Probation Order did not expire until midnight on July 15, 2015. This position is based on The

Interpretation Act, 1995 , which determines the calculation of the period of probation. The Law [ 5 ] The relevant law is as follows: Section 719(1) of the Criminal Code which states – a sentence commences when it is imposed, except where a relevant enactment provides otherwise. [ 6 ] Sections 27 of The

Interpretation Act, supra :

(4) Where a time is expressed to begin after or to be from a specified day, the time does not include that day. [ 7 ]

Section 28 of The

Interpretation Act, supra : Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by (

a) counting forward or backward from the specified day the number of months, without including the month in which that day falls; (

b) excluding the specified day; and (

c) including in the last month counted under paragraph (

a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month. [ 8 ] The relevant portion of the Probation Order reads as follows: The offender shall, for the period of 12 months

a) From the date of this order … comply with the following conditions, namely that the offender shall: 8 Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. Analysis

[ 9 ] I have not been able to find a case dealing with this issue directly. In Society for the Prevention of Cruelty to Animals v Richard Harding, 2002 NFCA 14 the Court addressed a limitation period of “… six months after the time when the subject matter of the proceedings arose ... ” . The Court referred to

section 28 of the

Interpretation Act and found that the period consisted of the time from the date of the activity that was the subject of the charge and the end of the day six months later; that date being the same as the date of the alleged activity. This view of the computation of time was followed in Green v Diack, 2012 ABQB 45 where the Court was dealing with a Detention Order under

section 490 of the Criminal Code . The Court concluded that the time period includes the whole of the day 12 months from the date of the seizure (including the day containing the same date). [ 10 ] Based on the clear reading of the statutes and the reasoning in the above cases, I conclude that the probation commenced on July 15, 2015, as determined by section 719(1) of the Criminal Code and ended at midnight on July 15, 2016 as determined by

section 28 of The

Interpretation Act , 1995. [ 11 ] Cst. Neufeld, having found Mr Young in the bar before midnight on July 15, 2016, had reasonable grounds to believe that he was committing an offence. I find that the arrest was lawful and therefore not a breach of his

section 9 Charter rights. The Crown has satisfied its burden of establishing that the search was lawful as it was a search incident to arrest: R v Caslake, 1998 SCC 838 . [ 12 ] I find that the evidence does not prove, on a balance of probabilities, that Mr Young’s rights were infringed and I admit the evidence. [ 13 ] The evidence does establish the elements of the offence and I find the defendant guilty of possession of marihuana. __________________ B.Bauer, J