Her Majesty the Queen - v. -, 2020 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 9 Date: March 2, 2020 Information: 90171057 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Raimey Kahnapace Appearing: Mr. Andrew Campbell For the Crown Mr. Bruce Campbell For the Accused JUDGMENT D. KOVATCH, J Background [ 1 ] The accused, Raimey Kahnapace, was charged with three offences. It is alleged that all offences arose out of the same short incident on July 2, 2019. The charges were: (1) assault on Tiana Keepness with a weapon, a two litre juice container, contrary to

section 267 (

a) of the Criminal Code .; (2) breach of probation by failing to keep the peace and be of good behavior; and (3) resisting Constable McCarthy, a peace officer engaged in the lawful execution of his duty, by running away, contrary to

section 129 (

a) of the Criminal Code . The trial was held on January 9, 2020 at Fort Qu’Appelle, Saskatchewan. At the commencement of the trial, the Crown stayed the first charge, namely assault with a weapon. The trial proceeded on the other two counts. At the end of trial, I reserved my decision.

The Evidence [ 2 ] The first witness was Mr. Robert Thompson. Mr. Thompson testified that he resides in the town of Fort Qu’Appelle. On July 2, 2019, he was in his house, with his son, at approximately 4:30 to 4:35 p.m. His son was eating and looking out the window of their home. His son called his attention to a man and a woman in the street who were pushing each other. Mr. Thompson saw them push each other a few times. He also saw them throwing what looked to be a fairly large juice container at one another. He said he called 911 for the safety of the female. He remained on the phone with police dispatch.

The pair of individuals proceeded into a vacant lot across the street. They shoved each other some more. At that time, the male laid down on the ground, and appeared to be passed out. The female attempted to wake him. She then kicked him two or three times in the stomach. He said the male then got up and got on top of the woman and hit her. They then got up. [ 3 ] The police arrived very quickly. Mr. Thompson advised that he was still on the phone to dispatch when they arrived. As the police drove up, the male started to run. Mr. Thompson testified that he heard the female shout, “Leave him alone.

He did nothing wrong.” The officers ran after the man, who is the accused, quickly caught up to him and arrested him. [ 4 ] Under cross-examination, Mr. Thompson confirmed that he saw the two individuals shoving each other and throwing a plastic container at each other. He said he told police that two people were fighting. He confirmed that he was still on the phone with dispatch when the police arrived. [ 5 ] The second witness was Constable Martin Stregger. Constable Stregger testified that he has been a member of the RCMP for just over six months.

He was stationed at Fort Qu’Appelle shortly before this incident. On July 2, 2019, he was with Constable McCarthy. They were together at a call at another house in Fort Qu’Appelle, just blocks away from where this incident occurred. He said they received a report of “an assault in progress”. They were just finishing up the call that they were at, so they left that call and drove to this incident. They arrived very quickly, probably within a couple of minutes. [ 6 ] Constable Stregger testified that as they drove up to the scene, he saw a male and a female standing together.

The female was holding her face or had her hands toward her face, and it appeared she might be crying. As they drove up, the male started to run. Constable McCarthy yelled to the male that he was under arrest. Constable Stregger was in the passenger seat of the police vehicle. The vehicle was just stopping. Constable Stregger jumped out of the passenger side door and chased the male. He caught up to the male very quickly, probably within 20 or 30 yards. Constable Stregger took the male to the ground, rolled him on to his stomach, and placed the handcuffs on him.

The male was the accused, Raimey Kahnapace. [ 7 ] Under further examination, Constable Stregger testified they were in a marked police vehicle, a Chevrolet Tahoe. It had RCMP decals, and emergency lights on top. He testified that both he and Constable McCarthy were in full uniform. [ 8 ] Under further examination, Constable Stregger testified that dispatch had advised of an assault in progress and further that a male in black was assaulting a female in a red shirt. He said he saw two people and the female had her hands to her face. It appeared she might have been crying.

He testified that he did not see any injuries on her. [ 9 ] He testified that Constable McCarthy called, “Stop. You are under arrest.” Further, he said Constable McCarthy “used his police voice” and was quite loud. As Constable Stregger jumped out of the car, Constable McCarthy yelled to “get him”. [ 10 ] The in-car video was played for the court at this point. In the video, as the car approaches the scene, one can see two people standing at the side of the road. The female is on the left. The male begins to walk and then run. Constable McCarthy yells, “Mac, you’re under arrest”.

Constable McCarthy then yells, “Get him. Get him”. One can then hear Constable McCarthy yell, “Mac. Get the fuck on the ground”. [ 11 ] The officer testified that after he got cuffs on Mr. Kahnapace, the accused was brought back to the police vehicle. At that time he was advised he was under arrest, given his Charter rights and the police warning. The officer testified that at that time, he did not know if the accused was on any other orders.

[ 12 ] Crown counsel asked the officer why the accused was arrested. The officer said he had reasonable grounds to believe the accused had committed an offence. The accused was told he was under arrest, and continued to run. [ 13 ] Under cross-examination, the officer testified that his first note of this matter is “male and female assaulting each other”. The officer agreed with defence counsel that as he approached, he only saw the male and female standing there. The officer agreed that he saw no assault. He said he believed that the accused had committed an assault.

This was based on the dispatch call, and her holding her face. But he agreed that dispatch said they were hitting each other. He said he did not know if the female was arrested. [ 14 ] When asked he said that he did not hear the female say, “he did not do anything”. He also agreed with defence counsel that he only saw the female for one or two seconds, before the vehicle stopped and he chased after the accused. [ 15 ] The last witness was Constable Ian McCarthy.

He testified that he has been with the RCMP for 10 years and stationed at Fort Qu’Appelle since April 2017. [ 16 ] On July 2, 2019, they were at an unrelated call. At approximately 5:30 p.m., they received a call of a fight in the street between a male and a female. He advised it was a “priority one” call, meaning it was “an assault happening right now”. [ 17 ] He estimated they had to drive only 200 to 300 yards from their previous call to this call, so they arrived very quickly. As they drove up to the scene, they saw two people near the street, a male and a female.

As they drove towards them, the male saw the police vehicle and ran. Constable McCarthy testified he thought the male was Max Ahtitacoose (spelled phonetically). The officer testified that he hollered, “Max. Stop. You are under arrest”. He then directed Constable Stregger to “get him”. Within seconds, Constable Stregger caught up to the accused and got him on the ground. As Constable McCarthy got to Constable Stregger and the accused, the constable realized that it was this accused, Raimey Kahnapace. [ 18 ] The officer testified the accused was charged with resisting arrest, breach and assault on a female.

Dispatch had said it was a priority one call, meaning there was risk of life or an assault in progress. The officer therefore thought the victim could be in jeopardy. He also said he was told some sort of object was being used. [ 19 ] Later, he said that on arrival, the female was upset and crying. It was his opinion that these were the male and female that had been fighting. He believed the accused was arrestable for assault. He later ascertained that Raimey Kahnapace was on probation at the time. A copy of a probation order dated April 8, 2019, was entered as an exhibit.

This was done subject to my ruling regarding the objection that the copy of the Order was inadmissible. [ 20 ] At a later point in his testimony, the officer testified that he was not paying attention to the female, and did not hear her say anything. He did not hear her say that the accused did not do anything. [ 21 ] Under cross-examination, the officer admitted that he was not aware of the probation order at the time of the arrest. He agreed that the charge was resisting or obstructing by running.

He stated that the accused could not run because he was under arrest. [ 22 ] He also stated that he believed the accused was the aggressor in the fight with the female. [ 23 ] Defence counsel suggested that the decision to arrest was made because the accused was running. The officer agreed with this. Under re-examination, he said the decision to arrest was based upon the collection of factors, including the dispatch information. The Evidentiary Issue

[24] Crown counsel proved the probation order by tendering a certified copy of that order.

Section 24 of The Canada EvidenceAct, RSC, 1985 c C-5 [Act] specifically allows for the proof of such a document by way of certified copy. However,

section 28 of theAct reads as follows: 28(1) No copy of any book or other document shall be admitted in evidence, under the authority of

section 23, 24, 25, 26 or 27, on anytrial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be producedreasonable notice of that intention.

(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, butthe notice shall not in any case be less than seven days. Crown counsel advised that a copy of the probation order was part of the disclosure package that was submitted to defence counsel wellin advance of the trial. Counsel argued that this was adequate or reasonable notice within the meaning of this section. Defence counselagreed that the disclosure package was made available to him well in advance of trial, and the disclosure package contained a copy of theprobation order.

Defence counsel argued this was not adequate or appropriate notice within the meaning of

section 28 of the Act. Further, that the

section is drafted in mandatory terms. It says no “document shall be admitted”. [25] Since the case of R v Stinchcombe, (SCC), [1991] 3 SCR 326, the Crown has been obligated to produce to the accused or his agent all relevant information regarding the accused and the charge. My understanding is that the duty todisclose encompasses inculpatory or exculpatory information, and includes all relevant evidence, whether or not the Crown intends tointroduce or rely upon that evidence.

In my view, it is clear that the Crown is not undertaking or duty-bound to introduce into evidenceany document or matter that is contained within the disclosure package. In this case, given the charge of breach of probation, the Crownwas clearly obligated to advise the defence of the existence of the probation order, by providing a copy of that order. [26] In my view,

section 28 of the Act imposes quite a different obligation upon the Crown and this obligation is imposed for avery different reason. In this case,

section 28 of the Act imposes a duty upon the Crown to provide notice that it will enter into evidenceand rely upon a copy of a probation order. While the disclosure package certainly alerted defence counsel to the existence of theprobation order, it did not give the defence counsel any notice or advice that the Crown would produce or enter into evidence a certifiedcopy of the probation order. As a result, I am of the view that adequate notice of the introduction of the probation order has not beengiven, and

section 28 of the Act has not been complied with. As a result, that document will not be formally entered as an exhibit orevidence in this matter. The Defence Argument on the Trial Proper [27] Defence counsel advances two arguments with respect to the charge of resisting arrest. Firstly, he argues that an arrest of theaccused was not effected or made. He argues that the police officer did not touch or lay hands upon the accused, and this was required toeffect an arrest. He relies upon R v Whifield, (SCC), [1970] SCR 46 [Whitfield].

If the accused was not arrested beforerunning from police, he cannot be convicted of resisting arrest. [28] Secondly, defence counsel argues that if the accused was arrested, then his arrest was not lawful. To prove the charge under

section 129 of the Criminal Code, the Crown must establish that the police officer was acting in theexecution of his duty. If the arrest of the accused was unlawful, then the police officer was not in the execution of his lawful powers andwithin his duty. As a result, if the arrest was not lawful, the accused must be found not guilty. [29] Having made these arguments, defence counsel conceded that if I reject both of these arguments, then the Crown has provedthe charge and the accused must be found guilty.

Was an Arrest of the Accused Effected? [30] Crown counsel referred me to the case of R v McCallum, 2014 SKPC 22 [McCallum]. At paragraph 19 and 20 of that decision, his Honour Judge Lane seems to come to the conclusion that the Whitfield case is no longer goodlaw, and that it is not necessary to touch a person to effect an arrest. (Also see R v Robillard, 2012 SKPC 156 [Robillard], whichindicates that Whitfield remains good law. I would conclude that the Whitfield decision remains good law, and there must be sometouching or a submission to authority and arrest in order to have a lawful arrest effected.

However, at paragraph 23 of the McCallum

decision, His Honour Judge Lane concluded: I have concluded therefore that the act of fleeing does constitute obstruction or a resistance of a peace officer engaged in the lawfulexecution of his duty “by fleeing a lawful arrest”. Judge Lane clearly concluded that the police officer there had reasonable and probable grounds to believe an offence had beencommitted, and a lawful power to arrest. By fleeing from that “lawful attempt to arrest” the offence of obstruction was committed. [31] As a result, in this case, I would conclude that the mere fact that an arrest was not effected would not avail Mr.

Kahnapace of defence. He could still be convicted if I conclude he was “fleeing from a lawful arrest”. Were the officers lawfully entitled or empowered to arrest Raimey Kahnapace? Were the officers acting in execution of their duty as peace officers, in effecting an arrest of Raimey Kahnapace? [32] I begin this

section of my judgment by stating that the legal flow of the defence argument is sound. The Crown must establish that the police officers were lawfully empowered to arrest Mr. Kahnapace, in order for the Court toconclude that they were acting within the execution of their duty. If the arrest was unlawful, they were not acting in execution of theirduty, and the charge must be dismissed. [33] In the case of R v Custer (1984), (SK CA), 32 Sask R 287, the accused was charged with obstructing apeace officer by refusing to allow the peace officer to enter his home to see a stabbing victim.

At paragraph 13, Chief Justice Baydadefined the issue as follows: The question in the present case, then, may be reduced to whether the attempted forcible entry by Constable Haughn into the defendant’sprivate home against his will falls within any of the exceptions (to the principle) that are recognized by the law. If the entry falls withinan exception, Constable Haughn was acting within the limits of his authority and thus in the execution of his duty; and the chargeaccordingly will stand.

If the forcible entry does not fall within an exception, he was acting outside of the limits of his authority and thusnot in the execution of his duty; that, in turn, will result in the failure to establish an essential ingredient of the charge necessitating itsdismissal. At paragraph 30, the Chief Justice concluded: Constable Haughn was acting outside his lawful authority and thus not engaged in the execution of his duty when he attempted a forcibleentry of the defendant’s house. [34] As a result, in this case, I must determine if the police officers had the power and the right to arrest Mr.

Kahnapace withoutwarrant for the charge of assault. Section 495(1) of the Criminal Code sets out the power of a peace officer to arrest an individualwithout warrant. It reads as follows: 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; or (

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

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. In this case, there is no suggestion that any warrants had been issued or were outstanding in relation to Mr. Kahnapace. Subsection (

c) has no application.

[35] The in-car video was entered as an exhibit. The Court saw what the police saw on that day, that is, two people standing bythe side of the road. Both officers stated under cross-examination that they did not see the accused committing any criminal offence. Subsection (

b) has no application. There is no evidence that the accused committed an indictable offence. As a result, the Crown mustestablish that the police officers believed “on reasonable grounds” that the accused had committed or was about to commit an indictableoffence. [36] During the past decade, the Saskatchewan Court of Appeal has reviewed what constitutes reasonable grounds and what constitutes reasonable and probable grounds on a number of occasions.

I have examined the followingdecisions: R v Gunn, 2012 SKCA 80, 399 Sask R 170; R v Shinkewski, 2012 SKCA 63, 399 Sask R 11 [Shinkewski], R v McMahon,2018 SKCA 26, 361 CCC (3d) 429 [McMahon]; R v Todd, 2019 SKCA 36; R v Pavlik, 2019 SKCA 107 [Pavlik]; R v Smith, 2019SKCA 126; and R v Chapman, 2020 SKCA 11. The issue of reasonable grounds or reasonable and probable grounds arises in variouscontexts. For example, it arises in reasonable grounds for a peace officer to demand the driver of a vehicle provide a sample of breath orblood.

Also, there is the question of reasonable grounds to believe a criminal offence has been committed or to swear a criminalinformation. There is also the issue of reasonable grounds for the issuance of a search warrant, or reasonable grounds for search withoutwarrant. There is also the related issue of whether a peace officer is reasonably relying upon certain facts or tips before taking certainactions. Some aspects or principles seem to be common throughout the various contexts or usages. However, there are also somedifferences.

In Shinkewski, at paragraph 13, the Court attempted to set out a number of the principles in

summary form. It stated: [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not proposeto review it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objectivepoint of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, butmay disregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timinginvolved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para.18; and, context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19 [37] In these cases, the courts have placed a particular emphasis upon the facts or factors known to the police officer at the timethe officer made the relevant decision. They have stated that the police officer must, in court, be able to articulate the facts or factors thathe relied upon.

He must subjectively believe those facts to be true, and a reasonable person placed in the position of the officer must beable to conclude the officer’s belief was reasonable. [38] The circumstantial or factual context in which the police officer made the decision will also be important to the reviewingcourt in determining whether the decision was reasonable. This factor is particularly important to the case at bar. The courts have madeit clear that a police officer’s reliance upon certain facts to obtain a search warrant will be more rigorously examined than will the factssupporting a snap decision for arrest.

Simply stated, the courts recognize that an officer’s snap decision to effect an arrest withoutwarrant cannot be the same kind of considered and reasoned decision as preparing an affidavit to obtain a search warrant. [39] In the case at bar, in my view, it is academic whether one or the other or both officers had reasonable grounds. If either officer had reasonable grounds, the officers were entitled to act in concert, and effect an arrest. [40] What did these officers know? The officers knew they had a report from dispatch “of an assault in progress”. They knew that two people were involved in a fight.

Both officers testified they believed that this accused hadcommitted the offence of assault. I have no reason to doubt that. But did either officer have reasonable grounds to believe this? In thePavlik case, at paragraph 20, the Court asked:

…[W]hether the observations and circumstances articulated by the police are rationally capable of supporting that belief. The questionasked in R v Storrey, (SCC), [1990] 1 SCR 241 at page 250 – 251, was whether an objective, observer standing in theshoes of the police officer with an awareness of the same circumstances, would conclude it was reasonable to believe the individual hadcommitted or was about to commit an indictable offence.

In my view, a simple report that this accused had been involved in “an assault in progress” and was involved in a fight is not sufficientfor someone to rationally conclude that he had committed an offence. I would suggest that the police officer acting on this report wasvery similar to the situation dealt with by the Court in McMahon. At paras 54 and 55, the Court held that reliance upon the bare reportthat they had received was nothing more than a hunch or suspicion.

In the terminology used in Gunn, it cannot be said this accusedprobably committed an offence. [41] In my view, the officers should have learned of and articulated certain facts that would have allowed them and the court todetermine that the offence of assault had probably been committed. Instead, the officer received a conclusory statement “that an assaulthad been committed”, and relied upon that conclusion without ascertaining any facts to support that conclusion.

In Pavlik at paragraphs29 to 30, the Court cautions against the use of conclusory of statements. [42] A number of the cases in this area focus on whether there was any evidence to confirm or corroborate a tip or report that had been received by police. I acknowledge that this factor has to be less important here, because theofficers had to make a snap decision.

Nevertheless, I am still left in the position where there is absolutely nothing to confirm orcorroborate that any offence of assault was committed, let alone that it was committed by this accused. [43] I also note that fairly soon after this incident, the police swore this Information alleging that the accused committed an assault onTianna Keepness with a weapon, a 2 l. juice container. At the start of the trial, this charge was stayed. It does not automatically followthat there were no reasonable grounds to arrest Mr. Kahnapace.

However, when I consider together, that the original charge was assaultwith a weapon and the charge was stayed without evidence; the officers articulated only that there was a fight and assault in progress; the officer thought he was arresting Max Ahtitacoose and that he yelled, “You are under arrest,” when the accused started to run, I feelcompelled to the following conclusions. The officers had a bare report without any corroboration or confirmation. They had noopportunity to investigate, and they arrested Mr. Kahnapace because he ran.

They did not have reasonable grounds for his arrest. [44] Lastly, I would observe that if there was any exigent circumstance or factor at play, it was that the young woman involved was being subjected to an assault, and she should be protected from that assault. However, if suchexigent circumstances ever existed, they had clearly ceased to exist by the time the officers drove up and approached the scene. Inaddition, as the accused ran away, and the young woman was standing there watching the incident, any danger or exigent circumstanceswere further removed.

The fact that the accused was running away does not of itself create any exigent circumstances justifying hisarrest. I would suggest that with most assaults, and probably most criminal offences, the police investigate those offences and gather thefacts after the fact. They conclude their investigation, and if they have basis to lay a charge, they do so, and then a summons or warrantis issued. This matter should have been investigated, and dealt with in that course.

Her Honour Judge Daunt also concluded that thematter should have been investigated before any arrest was made in Robillard. [45] For all of the above mentioned reasons, I have concluded that the police officers involved did not have reasonable grounds to believe that this accused had committed any criminal offence. Accordingly, their arrest of thisaccused was unlawful and in effecting that arrest, they were outside of or beyond the execution of their duty.

Accordingly, the charge ofresisting arrest by running must be dismissed. [46] I have already concluded that the probation order was not properly before the court. In addition, the police officers testified that the breach of probation charge was based upon the other criminal charges that were laidcontemporaneously with this charge. I have found this accused not guilty of the other charges. The breach of probation charge istherefore also dismissed. Dated at the Town of Fort Qu’Appelle, in the Province of Saskatchewan, this 2nd day of March 2020.

________________________________ Kovatch, J