Her Majesty the Queen - v. -, 2014 SKPC 022

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 022 Date: February 24, 2014 Information: 24402843 Location: Pinehouse _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garrett McCallum Appearing: Harold Johnson For the Crown Susan Ryan For the Accused DECISION R. LANE, J [ 1 ] The defendant, Garrett McCallum, was charged on Information #24402843 that on or about June 30, 2012, at Pinehouse Lake, Saskatchewan did: Commit an assault on Brenna Iron contrary to

section 266 of the Criminal Code ; Resist Constable David Lanoue, a peace officer engaged in the lawful execution of his duty by fleeing a lawful arrest, contrary to

section 129 (

a) of the Criminal Code ;

Being bound by a probation order made by a Judge of the Saskatoon Provincial Court on August 10, 2011, did without reasonable excuse fail or refuse to comply with a condition thereof to wit: keep the peace and be of good behaviour contrary to

section 733.1(1) of the Criminal Code ; Being bound by a probation order made by a Judge of the Saskatoon Provincial Court on August 10, 2011, did without reasonable excuse fail or refuse to comply with a condition thereof to wit: not possess or consume alcohol contrary to

section 733.1(1) of the Criminal Code . [ 2 ] The Crown proceeded by

summary conviction on all counts. [ 3 ] The trial of this matter was conducted August 14, 2013 at Pinehouse Lake, Saskatchewan. Count #1 was dismissed after the trial was complete with the Crown conceding that it had failed to establish beyond a reasonable doubt that an assault had taken place. At the trial of this matter as well, the defence conceded count #4 that there was proof beyond a reasonable doubt that the accused had breached his probation order by possessing or consuming alcohol.

It is my understanding that the Crown is not seeking a conviction on count #3 after having already achieved a conviction on count #4 however, the Crown can speak to that on the date of decision. [ 4 ] Count #2 is the charge which the Court has reserved decision on, and both Crown counsel, Mr. Harold Johnson and defence counsel, Ms. Susan Ryan, filed written arguments and case law for which I am grateful. [ 5 ] The facts as I found them to be are as follows. On June 30, 2012 at Pinehouse Lake, Saskatchewan, RCMP received a complaint of an assault in progress in the community.

Constable David Lanoue testified that he and Constable Whyte drove to the location of the alleged assault. Constable Lanoue saw a male run out of the house and that male was the person that the complainant had identified as the assailant. Constable Lanoue identified the accused and said that he advised the accused, yelling, “Stop! Police! You’re under arrest!” on two or more occasions from a distance of less than 15 yards. The accused continued to run and scaled a fence. Constable Lanoue testified that he just missed the foot of the accused as the accused went over the fence.

The accused testified that he was in the back yard when the police arrived. He testified that he heard the police officer yell “Garrett, stop” from about two to three feet away. He acknowledged that he had been drinking. He testified that he knew he was going to be arrested and that was why he was running away. In other words, he was running away to avoid being arrested. [ 6 ] I accept the evidence of Constable Lanoue. I accept that Constable Lanoue said “Stop! Police! You’re under arrest!” I do not accept the testimony of the accused that the officer only yelled “Stop, Garrett”.

The accused had been drinking and I find that he was more focused on avoiding the arrest than on what was being said to him by Constable Lanoue.

I do accept the accused’s rather candid testimony that he knew he was going to be arrested and that was why he was running, in order to avoid the arrest. [ 7 ] There are numerous legal issues that arise in this particular charge and I will comment briefly on them however, essentially, the defence position is that because the accused was specifically charged with resisting “by fleeing a lawful arrest”, and that no lawful arrest was completed, that the charge is not made out.

The Crown’s argument is based on a distinction between a charge of resisting or obstructing a police officer in the lawful execution of their duty contrary to

section 129 (

a) of the Criminal Code and escaping lawful custody contrary to section 145(1) (

a) of the Criminal Code . Initially, at trial defence counsel argued that as Constable Lanoue had not been able to place a hand on the person of the accused, that no arrest had been carried out and that the accused could not be found guilty of resisting a police officer in the lawful execution of his duty. In other words, defence argued that it was critical to the proof of this offence that the police officer be able to have a hand on the person of the accused before the accused can be said to be resisting an arrest. [ 8 ] The first question that has to be asked is the following: Are the components of the offence, namely resisting arrest by fleeing contrary to

section 129 (a), made out on the facts? [ 9 ] The accused is charged with resisting arrest by fleeing contrary to s. 129 (

a) of the Criminal Code .

Section 129 (

a) deals with many forms of obstruction and the elements required for a conviction in these circumstances require proof that: (

i) The arresting individual is a peace officer; (ii) The peace officer was operating in the execution of his or her duty; and

(iii) The accused acted with intent to resist or wilfully obstruct the officer in the carrying out of his or her duties. [10] Each of these elements must be made out before a conviction can be entered. I don’t think there is any argument thatConstable Lanoue was anything other than a peace officer. [11] In addition, there does not appear to be any argument that Constable Lanoue was not carrying out his duty at the time of theinteraction with the accused. [12] The next element is did the accused act with intent to resist or wilfully obstruct the officer in the carrying out of his or herduties.

From the evidence, there was no doubt that the accused intended to flee in order to avoid being arrested. The question is whetheror not resisting, Constable David Lanoue, a peace officer engaged in the lawful execution of his duty by fleeing a lawful arrest, isestablished in these circumstances. [13] Did Constable Lanoue have the right to arrest the accused without a warrant? Section 495(1)(

a) of the Criminal Code sets outthe following: 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence; (

b) a person whom he finds committing a criminal offence; (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal in any form set out inPart XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [14] As Constable Lanoue was actively investigating a complaint of an assault, and an assault is a hybrid offence, section 34(1)(a)of The

Interpretation Act, R.S.C. 1985 c. i-21, holds that an indictable offence includes a hybrid offence. This was confirmed in thedecision of R. v. Huff (1979), 1979 ABCA 234 , 50 C.C.C. (2d) 324, where the Alberta Court of Appeal ruled very clearly that ahybrid offence for the purpose of section 495(1)(a) (as it now is) does qualify as an indictable offence. [15] Therefore Constable Lanoue did have reasonable grounds to believe that an indictable offence had been committed.

In thiscase, Constable Lanoue knew he was looking for Garrett McCallum, and even though he had not met Garrett McCallum before knew thatthe person running from the back of the house was Garrett McCallum. Based on this, I find that at a minimum, Constable Lanoue had aright to detain Garrett McCallum for investigative purposes. In fact, I would go further and suggest that he had the right to arrest himwithout a warrant. [16] The decision of R. v. A.M., 2010 ABPC 10 is a decision of the Provincial Court of Alberta and is quite factually analogous tothis. In R. v.

A.M., Constable Allan responded to a dispatch call that reported a disturbance at a bus stop between young men, possiblywith the involvement of weapons. The Court in R. v. A.M. found that Constable Allan was properly engaged in the execution of hisduties by responding to the call. In reaching that conclusion the Court cited the Police Act out of Alberta. The Court also cited R. v.Dedman (1985), (SCC), 2 S.C.R. 2 (S.C.C.) where Dickson C.J. said “the common law duties of police have beendescribed as the preservation of the peace, the prevention of crime and the protection of life and property.” Returning to R. v.

A.M., theCourt in that case said “it does not matter that in law that Constable Allan did not observe an altercation at the bus stop.” In Mann,supra, the police observed an individual walking casually along the sidewalk after having received a report of a break and enter. Because this individual matched the description of the suspect, the Supreme Court of Canada ultimately held that the police were withintheir right to detain this individual for investigative purposes. Constable Allan in R. v.

A.M. did not see any altercation when he arrivedat the bus stop, but observed several young men fleeing from the bus stop and he followed the accused. Constable Allan testified that heconcluded the young men were involved in the disturbance because “they were young males as described by the dispatcher, because oftheir proximity to the bus stop and because they were running away.” [17] Did the accused in this instance have any right to resist the arrest?

The only way that that would be the case, I suggest is thatif he did not realize that the police officer was yelling at him and telling him that it was him that was under arrest. In this instance it isclear that he knew that the police officer was trying to arrest him. The only other would be as if the arrest was unlawful.

[18] I conclude that the arrest was lawful under section 495(1)(

a) of the Criminal Code. [19] In the case of R. v. Asante – Mensah (2003), S.C.C. 38, the Supreme Court states “it is important to remember that an arrestoccurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. An arrest canalso occur when by words or conduct when the police officer makes it clear that he or she will if necessary, use force, to prevent theindividual from going where he may want to go”. This decision addressed the argument of the defence that actual bodily contact has tobe made. [20] Mr. Johnson for the Crown cites R. v.

Whitfield (1970), (SCC), S.C.R. 46, where the Supreme Court states inthe instant case the police officer, Kerr, had a lawful right and duty to arrest Whitfield. There is no question as to the fact that a warrantwas outstanding and that Kerr’s attempt to arrest was lawful. Whitfield accordingly was under a legal obligation to submit to the lawfularrest. It is only by the recognition of the corresponding duties and obligations that we can avoid the notion that the person beingarrested has to be restrained physically before he can be said to be “arrested”.

I do not see that it should be necessary to touch or hold theperson being arrested. He must, of course, be informed that he is being arrested. If he does not submit or tries to flee, the arrestingofficer may use such force as may reasonably be necessary to detain this man having regard to the nature of the offence for which theperson is wanted. If the man flees and is not in fact detained he cannot be said to have been in lawful custody, but that does not mean hehas not committed an offence. Parliament has legislated specifically in this regard. In these circumstances he’s clearly guilty undersection 129(

a) which reads: 129. Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aidof such an officer, … is guilty of an indictable offence and liable for imprisonment for two years. [21] Several cases have considered which acts will qualify as “obstruction” or “resisting”. In R. v.

Soltys (1980), (BC CA), 56 CCC (2d) 43 (BCCA), the Court adopted Black’s Law Dictionary definition of “obstruct” which defined “obstruct” as “toimpede, to impose impediments to the hindrance or frustration of some act or service; as to obstruct an officer in the execution of hisduty.” [22] It is noteworthy that Black’s Law Dictionary defines the word “resist” as the following: “to oppose”. This word properlydescribes an opposition by direct action and quasi forcible means.

It further describes “resisting an officer” as follows. “In criminal law,the offence of obstructing, opposing and endeavouring to prevent (with or without actual force) a peace officer in the execution of a writor in the lawful discharge of his duty while making an arrest or otherwise enforcing the peace.” In addition, Black’s Law Dictionarydefines “resistance” as follows. “The act of resisting opposition”.

The employment of forcible means to prevent the execution of anendeavour of which force is employed; standing against; obstructing, withstanding the force or effect of or the exertion of oneself tocounteract or defeat. [23] I have concluded therefore that the act of fleeing does constitute obstruction or a resistance of a peace officer engaged in thelawful execution of his duty “by fleeing a lawful arrest”. [24] In case any question is raised as to whether or not the constable’s failure, in these brief seconds, to tell the accused why he isunder arrest is a breach of the accused’s Charter rights the answer is no.

While that is a duty on the constable under

section 10(

a) of theCharter of Rights and Freedoms for the constable to advise the accused of the reason for his arrest and detention, in these circumstances,the accused did not provide the police officer with an opportunity to do that in that he was running and jumping over a fence. The policeofficer’s interaction, I have concluded, would have been mere seconds, scarcely time for the police officer to say anything other than“stop, you are under arrest”. It is noteworthy as well that in the circumstance; the police officer did not succeed in completing an arrestand

section 10(

a) of the Charter of Rights states that the duty arises “on arrest or detention”. I agree with Crown counsel Mr. Johnsonthat arrest is not

an act. It is a process. As Mr. Johnson correctly points out in oral argument, there is no such charge as “resist arrest”. The charge is resisting or obstructing a peace officer in the lawful execution of his duty. Constable Lanoue was a peace officer, he had aduty to arrest Garrett McCallum, and Garrett McCallum successfully fled and avoided the grasp of Constable Lanoue in order to avoidbeing arrested. In doing this, I conclude that Garrett McCallum did resist Constable David Lanoue, a peace officer engaged in the lawfulexecution of his duty by fleeing a lawful arrest, contrary to

section 129(

a) of the Criminal Code. I therefore convict the accused of count#2. [25] Dated this 24th day of February, A.D. 2014, at Pinehouse Lake, in the Province of Saskatchewan.

______________________ R. Lane, J