His Majesty the King - v. -, 2023 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 33 Date: June 29, 2023 Information: 9911585516 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Annette Custer Appearing: M.A. Kujawa, S.H. Pratchler, K.C. For the Crown C.R. Murphy For the Accused JUDGMENT Q. D. AGNEW , J [ 1 ] Annette Custer is charged that on April 14, 2021 she committed the offences of theft under $5,000.00 and assault. She alleges that her rights under sections 7 , 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms [ Charter ] were violated, and seeks either a stay of proceedings or exclusion of evidence seized from her vehicle. I do not propose to address the application for exclusion of evidence, as it is moot: all other evidence, including the testimony of the accused, clearly establishes that the accused committed theft as alleged, whether or not the evidence seized from the accused’s vehicle is admitted into evidence. Facts [ 2 ] On April 14, 2021, Ms. Custer went to FreshCo on 33 rd Street in Saskatoon.

According to her own testimony on the voir dire and trial, she went with the intention to steal food. While there, she concealed a roast and other goods in her purse. She then deliberately left the store having paid for certain items, but not those concealed in her purse: those, she stole. Those items had a value of

under $5,000.00. Accordingly, on the evidence and by her own testimony, the accused committed the first of the offences she is charged with. [ 3 ] On duty at the FreshCo at the time was Cameron McMillan, who was working in plain clothes as a loss prevention officer for the store. Mr. McMillan was wearing a body camera with audio, which recorded the entire subsequent incident in varying degrees of detail. [ 4 ] Mr. McMillan observed Ms. Custer place various items in her purse, pay for the other items and exit the store. Immediately outside the store doors, Mr. McMillan stopped Ms. Custer.

At that point, the following interaction took place as recorded on Mr. McMillan’s body camera: M: [at 1:02 of the recording] Hi there. I’m going to need you to come with me for a second. [C places her purse on top of a line of carts outside the door, and begins pulling items from inside it] C: Kay. M: We’re going to have to [give/get] back all of the items in your purse, so if you’ll come back into the store with me.

C: OK, I just put everything in my purse [continuing to remove items from purse] M: Yeah, I don’t know that, though, so we’re going to go back in ‘cause I can’t search your purse, we need police to do that . . . C: OK [pulls keys from purse, picks up other items she had removed from purse] M: . . . so I’m going to need you to come with me. C: Sorry, I’m going to have to go [shoulders purse] M: Well, I’m, I do, no, I’m arresting you for theft under 5,000 so I need you to come with me.

C: I’m not going with you [attempts to push past M] M: Hey, hey hey hey [holds arm out, hand touching C’s right upper arm] no, no, no come back in the store. C: I’m not going with you. M: [holding his arms in front of C, right hand on C’s left upper arm] Come back in the store, come back in the store. C: Stop touching me. M: OK.

C: Stop touching me, stop touching me [attempts to pull away from M] M: You’re under arrest. C: No I’m not. [C goes to ground at 1:36 as a result of M’s impetus] Stop it. M: Give me your hands. Give me your hands. You’re under arrest for theft under 5,000. I tried to do this gently, you’re under arrest for theft under 5,000. You’re under arrest. [struggle continues as M attempts to put handcuffs on C on the ground. C attempts to get up, resists being handcuffed] C: You’re not arresting me. [struggle continues. At 2:28, M’s body cam falls off and is picked up by a bystander.

The remainder of the encounter is shown from a third-person point of view.] M [at 2:49 as struggle continues and M continues to attempt to handcuff C]: Hey, you want to turn it into assault? C: You’re assaulting me. [Struggle continues. By 3:05, M has handcuff on one of C’s wrists, stands up over her. At 3:09, in response to a question from a bystander, M identifies himself as “security”. C continues to struggle, and brings them both back onto the ground at 3:22] C [at 3:34]: What are you arresting me for? What are you arresting me for?

I don’t even have a fucking receipt from the stuff that I bought, I threw it in the garbage. Like what the fuck are you doing? [Struggle continues. By 3:48, both regain their feet. M has C’s arms behind her back. C pulls away and begins walking away, while M continues to attempt to cuff her other hand and stop her from behind] C [at 3:54]: Leave me alone. [turns, left arm free, punches M in the face. C again walks away, M again attempts to restrain her from behind, C gets to her vehicle door at 4:05.

She opens door and gets inside at 4:17, dragging M with her.] [ 5 ] The struggle continued in the vehicle, with Mr. McMillan on top of Ms. Custer. As she attempted to put the key in the ignition in order to start the car and drive off, Ms. Custer bit Mr. McMillan. Defence arguments [ 6 ] Ms. Custer raises three arguments. The first two arise from the actions of Mr. McMillan, while the third involves Cst. Jenkins, the police officer who eventually arrived on the scene. [ 7 ] With respect to Mr. McMillan, defence concedes that Ms. Custer was validly arrested when Mr. McMillan first touched her.

Defence contends, however, that the amount of force used by Mr. McMillan was “excessive, disproportionate, unnecessary, and unreasonable” (Defendant’s Notice of Application, para. 31) and accordingly breached Ms. Custer’s rights under ss. 7 and 8 of the Charter , namely her rights to security of the person and to not be arbitrarily detained. Secondly, defence argues that Ms. Custer struck Mr. McMillan in self-defence.

[8] With respect to Cst. Jenkins, defence argues that Ms. Custer’s right to counsel under s. 10(

b) of the Charter was violated. Mr. McMillan [9] I will deal with the Charter arguments arising from Mr. McMillan’s use of force first, and then deal with the self-defenceargument. [10] Regarding the issues surrounding the use of force and Ms. Custer’s arrest, the defence argument presupposes two conditions:(1) that the force used on Ms. Custer during and after her arrest was in fact unreasonable because it was excessive; and (2) that theCharter applies to this arrest. With all due respect, I disagree with both propositions. Unreasonable force [11] Ms.

Custer was aware of the possibility of there being store security. When she was stopped by Mr. McMillan upon leavingthe store with the stolen merchandise, there was no suggestion of surprise on her part. She calmly put her bag containing the stolen itemsdown and began removing items from it. It seemed as though she intended to remove the stolen goods. Instead, she pulled out her carkeys and attempted to leave. To that point, she was under no obligation to do otherwise. However, once Mr.

McMillan arrested her, hersituation changed. [12] The concept of the “citizen’s arrest”, or arrest by private persons who are not peace officers, is a long-standing one in thecommon law: it is “in direct descent over nearly a thousand years of the powers and duties of citizens in the age of Henry II in relation to the ‘King's Peace’.” (R v Lerke, 1986 ABCA 15 at para 21, 25 DLR (4th) 403 [Lerke]. That history was reviewed in greater detail by theSupreme Court of Canada in R v Asante-Mensah, 2003 SCC 38 at paras 36-38, [2003] 2 SCR 3 [Asante-Mensah].

The latter decisionalso reaffirmed the definition of “arrest” as “the actual seizure or touching of a person’s body with a view to his [sic] detention” (para 42,citing R v Whitfield, (SCC), [1970] SCR 46; see also Asante-Mensah at para 46). [13] It is clear, therefore, that when Mr. McMillan touched Ms. Custer and attempted to stop her from leaving, and told her shewas under arrest “for theft under 5,000”, he had fulfilled the requirements to effect her arrest.

At that point, as a legal matter she was nolonger free to leave and he was entitled to use reasonable force to hold her for delivery to the police (Asante-Mensah, paras 49-56, 59). [14] Viewing the video, it is clear that after Ms. Custer was arrested she did not change her intention to leave. She denies the factof her arrest, twice states that she is not going to go with Mr. McMillan, and attempts to push her way past him. In my view, Mr.McMillan was faced with only two options: (1) get Ms. Custer on the ground to prevent her from continuing to try to get away from her;or (2) let her go.

Letting her go would of course negate much of the purpose of his employment as a loss-prevention officer; furthermore,it would be a dereliction of his duty under s. 494(3) of the Criminal Code, which requires that “[a]ny one other than a peace officer whoarrests a person without warrant shall forthwith deliver the person to a peace officer.” [15] On the evidence, I do not find that Ms. Custer suffered any injury, even of a trivial or passing nature, from being taken to theground by Mr. McMillan. At no time did he strike her. He did not kneel on her. He did not apply force to her joints.

The focus of hisactions at that point seems to have been on trying to get handcuffs on her, to control her movements. Even in this, he had only limitedsuccess. As the event proceeded, she regained her feet, with one handcuff on, and forced both of them to her vehicle. She unlocked thedoor and climbed into the driver’s seat. Mr. McMillan was attempting to prevent her from doing any of this, with a complete lack ofsuccess. After Ms. Custer was in the driver’s seat of her vehicle, Mr. McMillan used his body to hold Ms. Custer in place as sheattempted to start the vehicle.

It is clear, and I find as a fact, that throughout the encounter, both before and after the arrest, Ms. Custerwas attempting to leave. Sections 25(1) and 26 of the Criminal Code are instructive: 25

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or

(

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessaryfor that purpose. 26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality ofthe act that constitutes the excess. [16] Mr. McMillan was therefore entitled to use “as much force as [was] necessary” to arrest Ms.

Custer and, per s. 494(3), deliverher to a police officer; he was not entitled to use force in excess of that amount. “Excessive force”, therefore, is force which is more thanis reasonably necessary in the circumstances in order to accomplish the legal ends for which it is employed. The circumstances hereincluded that Ms. Custer was under arrest, was continuing to resist, had punched Mr. McMillan in the face, was attempting to escape, hadin fact dragged Mr. McMillan to her car with her, had climbed inside and was attempting to insert her key in order to drive off, biting himin the process.

In those circumstances, the amount of force which Mr. McMillan used verged on being insufficient to accomplish thelegal ends of effecting the arrest, detention and handing over of Ms. Custer; I certainly cannot find that it was excessive. Does the Charter apply to citizens’ arrests? [17] Defence has urged me to find that a person conducting a citizen’s arrest must comply with the Charter. The Charter,however, is not directly binding on ordinary citizens; rather, it binds the federal and provincial governments (Charter, s. 32(1)).

The testto determine whether or not specific actors fall within the Charter at specific times has been enunciated by the Supreme Court of Canadain R v Buhay, 2003 SCC 30 at paras 25 and 26, [2003] 1 SCR 631 [Buhay] as follows: [25]

Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature andgovernment of the provinces. Accordingly, the initial search of the appellant's locker by the security guards can only come under s. 8scrutiny if the guards can be categorized either as "part of government" or as performing a specific government function (Eldridge v.British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624 ), or if they can be considered state agents (R. v.Broyles, (SCC), [1991] 3 S.C.R. 595; M. (M.R.), supra).

For this latter determination, it is important to focus on therelationship between the state (the police) and the private entity (the security guards).

The test was enunciated in the context of policeinformers by Iacobucci J., writing for the Court, in Broyles, at p. 608: A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects theexchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question.Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materiallydifferent from what it would have been had there been no such relationship should the informer be considered a state agent for thepurposes of the exchange.

I would accordingly adopt the following simple test: would the exchange between the accused and theinformer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? [26] In M. (M.R.), supra, at para. 29, the Court applied that test in the context of a search of a student by a school official.

Cory J., forthe majority, held at para. 28 that "[t]he mere fact that there was cooperation between the vice-principal and the police and that an officerwas present during the search is not sufficient to indicate that the vice-principal was acting as an agent of the police... There is noevidence of an agreement or of police instructions to Mr. Cadue that could create an agency relationship." [18] Accordingly, as set out in Buhay, Mr.

McMillan’s actions attract Charter scrutiny only if one of three criteria are met: 1. he was at the time a part of government; 2. he was at the time performing a specific government function; 3. he was at the time acting as a state agent. [19] There is no argument that Mr. McMillan was at the time a part of government, nor could there be. However, Ms. Custerargues that Mr. McMillan was acting as a state agent during this incident (Applicant’s Response to the Crown’s Brief of Law, para. 13),and that as a result his actions had to be Charter-compliant. Defence finds support for this proposition in Lerke.

Although it is notbinding on me, Ms. Custer urges me to find it persuasive and to follow it. There are several difficulties with doing so, however. [20] The first is that, as noted, Lerke does not endorse the notion that someone making a citizen’s arrest is a state agent. Rather, itstates that such a person is exercising a government function: “In my view the arrest of a citizen is a governmental function whether theperson making the arrest is a peace officer or a private citizen” (Lerke, para 15). Lerke thus asserts that Mr. McMillan would have metthe second of the Buhay criteria, but not the third as Ms.

Custer asserts. Even that does not assist her, as will be seen below.

[ 21 ] The second difficulty is that, subsequent to Lerke , the Saskatchewan Court of Queen’s Bench decided the opposite to Ms. Custer’s position: R v Pillipow , 2003 SKQB 49 , 229 Sask R 306 [ Pillipow ]. That case involved a citizen’s arrest, and whether or not Charter warnings were required in such an arrest. The court held that although the individual who arrested the accused in that case had the powers of a peace officer under certain circumstances, at the time of the arrest he was acting as a private individual making a citizen’s arrest and that therefore no Charter warnings were required (para 19).

In other words, Pillipow held that a private individual making a citizen’s arrest was not required to give Charter rights and warnings. Defence urged me not to follow Pillipow , on the basis that it did not address the issues before me. With all due respect, I am unable to accept that argument. Pillipow states (para 19 ): “In the pursuit of the appellant committing the indictable offence of impaired driving, Taylor was no more than a citizen acting appropriate under s. 494(1) (

a) of the Criminal Code . No Charter warnings were required.” Substitute “theft under $5,000" for “impaired driving”, and “McMillan” for “Taylor”, and these sentences fit the case before me exactly. I cannot see any reasonable way in which Pillopow can be distinguished. It is true that the main question in Pillipow was whether Taylor, who was designated a peace officer as an officer of the correctional service, was thereby acting as a peace officer or as a private citizen when he made the arrest of the accused in that case. No such issue arises in the matter before me.

However, the reason that issue was important in Pillipow was precisely because the Court concluded that Charter rights applied if Taylor was acting as a peace officer, and did not apply if he was not. As he was not - that is, he was making a citizen’s arrest under s. 494(1)(a) - no Charter rights applied.

This is precisely the situation before me, and the reason I disagree with defence counsel that Pillipow can be distinguished: it speaks directly to the central issue in this case. [ 22 ] Although defence has cited a number of cases to me to the contrary, they are either from outside Saskatchewan or predate Pillipow . They are therefore of no assistance to Ms. Custer, as I am bound by the decision of the Saskatchewan Court of Queen’s Bench (as it then was).

While she may disagree with it, or believe that it should be changed, that cannot avail her in courts of this level. [ 23 ] The third difficulty is that Lerke , in addition to being decided before Pillipow , was also decided before Buhay . In Buhay , private security guards detected an odour of marijuana coming from a locker, had the locker opened, and searched it. The Supreme Court of Canada held that in so doing, they were neither exercising a government function nor acting as state agents (paras 28 and 29): [28] . . .

Private security guards are neither government agents nor employees, and apart from a loose framework of statutory regulation, they are not subject to government control. Their work may overlap with the government's interest in preventing and investigating crime, but it cannot be said that the security guards were acting as delegates of the government carrying out its policies or programs. Even if one concedes that the protection of the public is a public purpose which is the responsibility of the state, this is not sufficient to qualify the functions of the security guards as governmental in nature.

To this effect, this Court, in Eldridge , supra , held, at para. 43 : ... the mere fact that an entity performs what may loosely be termed a "public function", or the fact that a particular activity may be described as "public" in nature, will not be sufficient to bring it within the purview of "government" for the purposes of s. 32 of the Charter . ... In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. ... [29] The security guards cannot either be considered state agents.

Based on the test set out in Broyles , supra , and M. (M.R.) , supra , the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police. On the facts here, it is clear that the security guards acted totally independently of the police in their initial search. [ 24 ] The same reasoning from paragraph 28 regarding whether or not Mr. McMillan was performing a government function applies here. As for being a state agent, if the test is whether or not Mr.

McMillan would have acted the same without the intervention of the police (per paragraph 29), the answer is clear: just as in Buhay , the answer must be “yes”, because he acted without and before any intervention by police. Accordingly, based on Buhay , Mr. McMillan cannot be found to be either performing a government function or acting as a state agent. [ 25 ] I note that the Supreme Court did not consider Lerke in Buhay , notwithstanding that it had been decided several years earlier.

In Asante-Mensah , decided the same year as Buhay but subsequent to it, the Supreme Court explicitly declined to consider the Lerke position (para 77 ) ; that is, although it left open the possibility that Lerke was correct, it explicitly did not endorse it. In the 20 years since, the Supreme Court has not endorsed Lerke . A number of provincial Courts of Appeal have declined to follow the reasoning in Lerke ( R v N.S. , [2004] OJ No 290 (QL) (Ont CA) ; R v A.M.J. , 1999 BCCA 366 , 137 CCC (3d) 213; R v Skeir , 2005 NSCA 86 , 253 DLR (4 th ) 221 - see

summary and analysis in R v Dell, 2005 ABCA 246 at paras 12 - 14 , 256 DLR (4 th ) 271). Additionally, in Dell the Alberta Court of Appeal itself sidesteps endorsing its own decision in Lerke , noting the possibility of Lerke being reconsidered but stating that it can be overturned only upon proper procedure being followed: “As no application has been made to reconsider Lerke , I must proceed on the assumption that it is still good law in Alberta” (para 19). This “assumption” is rather less than a ringing endorsement.

[ 26 ] Lastly, requiring Charter rights in a citizen’s arrest, per Lerke , would effectively end the power of ordinary citizens to effect such arrests. As the courts have seen since the Charter was implemented, even police officers who have received training regarding Charter rights, and who have a positive obligation to keep current on developing Charter law, frequently have difficulties implementing Charter rights even with the best of intentions.

The notion of a private citizen, unschooled in even the most rudimentary of Charter principles, being held to the same standard would mean that virtually any such arrest would result in Charter violations. In effect, creating such an obligation would mean the end of the ability of a private citizen to intervene in criminal activities other than for self- defence or defence of property, and the complete inability to hold any person for the arrival of police.

This would overturn centuries of precedent regarding the citizens’ arrest power, the history of which is outlined quite extensively in Lerke itself (paras 16 - 21 ). [ 27 ] Such a change might, as Ms. Custer seems to believe, be warranted; but in my view, it would be such a significant change in policy that it should come from elected officials, not from the courts. Self-defence [ 28 ]

Section 34 of the Criminal Code deals with an individual’s right to use force in self-defence. It reads as follows: 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 29 ] The Crown, of course, bears the burden of disproving self-defence beyond a reasonable doubt, once it has been raised by defence and an air of reality to . [ 30 ] Subsection (3) makes it clear that, as against Mr.

McMillan, self-defence can only apply if Ms. Custer believed on reasonable grounds that Mr. McMillan was in fact acting unlawfully. Ms. Custer’s argument is that, although her arrest was lawful, Mr. McMillan then used unlawful (because excessive) force on her, which gave her a right of self-defence pursuant to subs. (3).

[ 31 ] I have already found that the force used on her was not in fact excessive or unlawful. However, subs. (3) turns on Ms. Custer’s belief, and its reasonableness. I will examine each of these in turn. [ 32 ] In her testimony, Ms. Custer stated: After I had gotten up off the ground I punched him in the face in self-defence. Of what I believed to be self-defence. Because of all of – up until that point, I never touched him. I didn’t push him. I didn’t do anything to him. and then – yeah. I – I regret punching him because I realized that that is assault, but I felt like he was assaulting me.

So I felt like my actions were warranted. (transcript, p. T-96, ll. 13-17) There are several difficulties with this statement as it applies to subs. (3). [ 33 ] First, and most obviously, it does not address Ms. Custer biting Mr. McMillan when they were both in her vehicle and he was attempting to prevent her from starting it and driving off. That episode was never addressed by Ms. Custer in this context, and there is no evidence that she believed that Mr. McMillan was acting unlawfully when she bit him. [ 34 ] A second difficulty is that Ms. Custer is factually incorrect in stating that before she punched Mr.

McMillan, she had neither touched nor pushed him, nor did anything else to him. In fact, the video shows her doing both as he attempts to arrest her and prevent her from leaving: she clearly pushes past him more than once. This lack of accuracy raises difficulties with respect to Ms. Custer’s credibility for the remainder of her statement. Either her recollection about critical facts is incorrect, or she is attempting to paint herself in a much better light than was actually the case. I note that Ms. Custer had been in court when the video which belies her statement was played, shortly before her own testimony.

It is difficult to believe that it is her recollection which is at fault. [ 35 ] Ms. Custer knew that she had stolen something from the store. She heard Mr. McMillan tell her she was under arrest. She was making a very determined and ongoing attempt to get away from him. I simply do not believe her when she says that she thought he was “assaulting” her - that is, that she thought that he was using excessive force against her which would justify her punching him. She did not punch him in self-defence; she punched him to attempt to get away from him and escape.

There is simply no air of reality to her claim of self-defence. [ 36 ] Furthermore, even if Ms. Custer honestly believed that Mr. McMillan was using excessive force, such a conclusion would not have been reasonable. As noted elsewhere, the amount of force used by Mr. McMillan verged on insufficient; it did not even approach excessive. [ 37 ] Defence counsel attempted to raise Ms. Custer’s prior abusive relationships to explain her reaction to Mr. McMillan (including the punch). Ms. Custer testified that she had been abused by a domestic partner and that Mr.

McMillan in very general terms reminded her of that person. The difficulty again is that the video not only does not support her assertion, it shows something completely different. It is certainly true that, by the time that Ms. Custer is placed into the police cruiser, she is clearly in a very different state of mind than earlier: she is breathing very rapidly and heavily, she is keening and talking to herself, she is physically and verbally flinching at people outside the vehicle, and she is displaying other symptoms of extreme emotional upset.

None of these, however, arise until after she forces her way to her vehicle, climbs inside and is prevented from driving off. It is only at that point that there is any indication whatsoever of any kind of emotional distress. While a person certainly can experience emotional distress without exhibiting it, there are several factors here which make me discount her claim. First is the issue of her credibility generally, as noted above with respect to her incorrect claims not to have touched or pushed Mr. McMillan.

Second is the extreme nature of the emotional collapse evident in the police cruiser: it is so dramatic and evident, it is difficult to accept that she had previously been holding that emotion in check - not impossible to believe, but difficult. Third is that her demeanor from the beginning of the encounter is one of someone caught but determined to brazen it out. Again, I have to be alert to the possibility that her emotions might have been disguised, but certainly there is nothing in the video evidence to add support to such a possibility. Lastly, Ms.

Custer herself at no point in her evidence explicitly connected her recollections of her abusive partner to her actions in punching or biting Mr. McMillan. When she gave her justification for punching Mr. McMillan (quoted above), she only refers to the fact that she felt that he was assaulting her. Any connection I might draw between her history of abuse and her assault on Mr. McMillan would be nothing but speculation. [ 38 ] Accordingly, I do not consider that a reasonable person, even one with Ms. Custer’s own background, would have considered that Mr.

McMillan was acting unlawfully towards her, either when she punched him or when she bit him. Subsection (3) cannot be met, and I therefore do not need to consider the other components of self-defence: the claim of self-defence must fail. Constable Jenkins

[39] Constable Jenkins arrived on the scene at 3:56 p.m. He found Mr. McMillan “struggling” with Ms. Custer. Mr. McMillanwas calling for help, Ms. Custer was “very frantic” and there were a number of onlookers who were “very agitated”. Cst. Jenkins had tosort out who the parties were, what had happened and what he himself had to do. He took control of Ms. Custer at 4:00 and placed her inhis police vehicle, which had audio and visual recording running. At that time, she was frantic, screaming, very animated, havingdifficulty getting her breathing under control, and behaving erratically. Cst.

Jenkins had difficulty just trying to talk with her at all. Hebelieved that she was not in a state of mind to understand her right to counsel were he to read it to her. I have had the advantage ofobserving Ms. Custer in the police car on the video, and I can unequivocally endorse his conclusion. Had he purported to give Ms.Custer her right to counsel at that point, I would no doubt be dealing now with a 10(

b) argument that her right to counsel was violatedbecause it was given to her when she was obviously not in a state to comprehend it or make a reasoned decision about it. [40] Cst. Jenkins provided Ms. Custer with her right to counsel at 4:31, approximately 30 minutes after he had her in his custody. During that period, he was also investigating the incident which brought him to the parking lot. There were a number of people around,some of whom were telling him that Ms. Custer was actually the victim in the incident. He had to speak with Mr. McMillan about whathad happened.

He had to determine what had happened and what, if any, charges were appropriate to proceed with. He also had to dealwith Mr. McMillan’s injuries, which were bleeding, and had to determine whether or not medical care was required for either Mr.McMillan or Ms. Custer; in fact, an ambulance attended on the scene. Cst. Jenkins clearly was not able to sit in the car, ignoring all ofthose other duties, until the moment he concluded that she was able to understand her right to counsel. [41] Ms. Custer was placed in the patrol car at 4:14. Until then, she had been in her own vehicle or was being moved to the policecar.

Although Cst. Jenkins had by then arrested her for theft under, he had not yet had any detailed discussion with Mr. McMillan aboutthe assault allegation: that part of his investigation was still to come. Cst. Jenkins testified that Ms. Custer was more calm by 4:16: not“hysterical”, to use defence counsel’s term. However, I note that even up to 4:20, the video shows Ms. Custer displaying uncontrolledkeening, stuttered breathing, reassuring herself out loud “you’re ok”, “you’re not going to die”, and screaming and cowering inside thepolice car.

Again, I question whether, had rights to counsel been given at that point, I would be facing an application exactly theopposite of the one before me. [42] The Saskatchewan Court of Appeal, in R v McAvena (1987), (SK CA), 55 Sask R 161 [McAvena], set outthe following five informational principles for police to follow in implementing a person’s s. 10(

b) rights (para 11): To inform the owner of the right (1) in language which accurately describes the owner's right to counsel without delay, (2) in languageand means of communication which the owner can understand and appreciate, (3) at a time when he is capable of understanding andappreciating the right to counsel without delay, (4) before he yields up evidence which may be incriminating against him, and (5) insufficient time to give the owner an opportunity to obtain and instruct counsel before the obtaining of evidence described in (4). [43] The Court of Appeal recently cited this passage again, in R v Knoblauch, 2018 SKCA 15, [2018] 3 WWR 443 at para 36. [44] It is the third principle of McAvena that is applicable here: the right to counsel must be provided at a time when the person iscapable of understanding and appreciating it. [45] At 4:22, Cst.

Jenkins returned to the police vehicle and had a conversation with Ms. Custer about her phone. In my view, thisis the earliest at which he could have given the right to counsel and reasonably have expected it to be understood. [46] Cst. Jenkins did not, however, give Ms. Custer her right to counsel at that time. Although he did not have a preciserecollection, he testified that he believed he was still investigating and undertaking all of the other tasks which had to be done. [47] At 4:29, Cst. Jenkins arrested Ms.

Custer for theft and assault, and then proceeded with the usual rights and cautions,including the right to counsel. By 4:33, Ms. Custer decided that she did not wish to call a lawyer. [48] There is, accordingly, a period of seven minutes from when Cst. Jenkins could first reasonably have given the right to counseluntil he began reading Ms. Custer her various rights and warnings, including the right to counsel. The question is, therefore, whether ornot this seven-minute span was a breach of Ms. Custer’s rights: was it “without delay”, in the wording of the Charter?

[ 49 ] As set out by the Supreme Court of Canada in R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460 [ Suberu ]: the words “without delay” mean “immediately” for the purposes of s. 10( b ). Subject to concerns for officer or public safety . . . the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (para 42) [ 50 ] I am not prepared to find, under the circumstances, that this seven-minute time span breached the requirement that Ms. Custer be provided with her right to counsel “without delay” or “immediately”. Certainly, Cst. Jenkins could have provided Ms. Custer with her s. 10 (

b) rights sooner. However, I do not read Suberu as requiring that the right to counsel be given at the earliest possible moment, regardless of any other circumstances. While the right to counsel is extremely important, it is not the only important obligation of police in some circumstances. Cst. Jenkins had been and was continuing to juggle several priorities, including dealing with the crowd, investigating whether or not an offence or offences had taken place, dealing with an injured Mr. McMillan and the ambulance crew, and coordinating with his supervisor.

Just as he could not be expected to ignore all of those obligations to sit with Ms. Custer in order to observe the earliest possible moment when she could comprehend her right to counsel, it would be unreasonable to require him to prioritize to the exclusion of all else giving the right to counsel (and, presumably, all of the other rights and warnings). Police officers must have some flexibility to deal with dynamic, fluid and emergent situations. In my view, “without delay” or “immediately” incorporates a small amount of flexibility.

The Court can, and must, review whether or not that flexibility was properly employed; that is, whether the time span was reasonable in the circumstances, bearing in mind the high (but not absolute) priority which the right to counsel must be afforded. In the present circumstances, Cst. Jenkins acted reasonably and provided Ms. Custer her right to counsel “without delay”, and accordingly there was no breach of her s. 10 (

b) right. [ 51 ] In the event that I am incorrect in this conclusion, I would not in any event grant a remedy for the breach. Defence abandoned the request for exclusion of evidence, and sought instead a stay of proceedings or a reduction in sentence (were Ms. Custer to be found guilty). I note that the latter remedy was not referred to in the Charter notice, and I would therefore not be inclined to grant it. However, any remedy whatsoever would fail on the basis that the delay was minimal, and had no effect on Ms. Custer. After a seven- minute delay, Ms.

Custer was informed of her right to contact counsel, and she declined. Unless there was evidence that she would have made a different choice had the right been provided earlier - and there was no such evidence - there is nothing to even suggest that the delay had any effect whatsoever on Ms. Custer. [ 52 ] The test for granting a stay was set out by the Supreme Court of Canada in R v Babos , 2014 SCC 16 at para 32 , [2014] 1 SCR 309 [ Babos ].

The first requirement, citing R v Regan ( 2002 SCC 12 , [2002] 1 SCR 297 [ Regan ] at para 54 ) is: “There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that ‘will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome’”.

Specifically with respect to cases not involving abuse of process, which defence has indicated is not being argued, Babos stated the test as follows (para 35): . . . the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences.

At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. [ 53 ] It is clear that this standard has not been breached in the present matter. The seven-minute delay in providing Ms. Custer with knowledge of her right to counsel, would not “offend society’s sense of fair play and decency”.

A stay of proceedings, “the most drastic remedy a criminal court can order” ( Babos , para 30 , citing Regan , para 53 ), would simply not be an appropriate remedy. [ 54 ] Similarly, I would not be inclined to grant a reduction in sentence. The fact is that Ms. Custer suffered no harm from what was, at best, an extremely minor breach of her right. There is no evidence that this was a deliberate violation by Cst. Jenkins, or that it was done with wanton disregard of Ms. Custer’s right, or that Cst. Jenkins acted in ignorance of Ms. Custer’s right.

Reducing her sentence for something that was both trivial and literally inconsequential would be a remedy vastly outweighing the breach. [ 55 ] I accordingly dismiss the accused’s Charter applications, and find her guilty of both charges.

____________________________ Q. D. Agnew, J