Her Majesty the Queen - v. -, 2013 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 135 Date: August 9, 2013 Information: 44332430 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - E.(C.G.) Appearing: Ms. L. Morelli For the Crown Ms. N. Sim, Q.C.

For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ RULING ON VOIR DIRE B.G.

MORGAN , J _____________________________________________________________________________ [ 1 ] On May 7, 2013, Constables Ly and Nash, both members of the Saskatoon Police Service set out to arrest a young person,

[1] On May 7, 2013, Constables Ly and Nash, both members of the Saskatoon Police Service set out to arrest a young person,B.P. on an outstanding warrant. They went to a location where Constable Nash had learned B.P. often hung out, and upon arrival there,saw B.P. along with two other males, both of whom I am satisfied were young persons. The officers quickly arrested B.P., andConstable Ly told all three young persons to sit on the grass.

Constable Ly asked the other two young persons, including C.G.E., fortheir names and dates of birth and C.G.E., knowing he was on a condition not to have contact with B.P., gave a false name, Justin Fiddler,and a date of birth.

The officers checked the names they were provided on CPIC, and finding no outstanding warrants for either, sent thetwo youths (I’ll refer to the third youth as “D.”) on their way. [2] Shortly thereafter, Constable Ly, finding it “odd [Fiddler] was with two guys with mugshots” [referring to B.P. and D.],checked B.P.’s associates on file at the police station and found a photo of a known associate which matched “Justin Fiddler”, andlearned that individual was actually C.G.E.

Thus, he went to C.G.E.’s house, and arrested him on the charge that C.G.E. wilfullyobstructed Constable Ly, a peace officer engaged in the lawful execution of his duty, by providing a false name, contrary to s. 129 of theCriminal Code. [3] The defence alleges violations of C.G.E.’s ss. 8, 9, 10(

a) and 10(

b) Charter rights, and seeks a remedy under s. 24(2) of theCharter to exclude any evidence respecting any comments made by C.G.E. based on the alleged denials of his Charter rights. Thiswould include the evidence of the false name that E.C.G. provided, which forms the basis of the obstruction charge. [4] I will deal with the issue of arbitrary detention on this voir dire, specifically psychological detention. The Law [5] The concept of “detention” was recently reviewed in R. v. Grant, 2009 SCC 32 , 2009 S.C.C. 32 at paras. 24 - 44. Iwill apply the following test set out para. 44 of Grant: In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of theliberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providinggeneral assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individualfor focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; levelof sophistication. [6] In R. v. Suberu, 2009 SCC 33, decided at the same time as Grant, the Supreme Court, summarizing Grant, said that “. . . in asituation where the police believe a crime has recently been committed, the police may engage in preliminary questions of bystanderswithout giving rise to a detention under s. 9 and 10 of the Charter. . . The onus is on the applicant to show that in circumstances he or shewas effectively deprived of his or her liberty of choice” (see para. 28). The Facts

[ 7 ] The facts require a more detailed examination. I start by noting that the sole reason Officers Nash and Ly went in search of B.P. was to execute a warrant for the arrest of B.P. It was pure happenstance that C.G.E. happened to be in the company of B.P.

Once B.P. was arrested, the “crime” or “offence” that the police were involved in dealing with was ended; that is, this is not a situation where police officers were trying to sort out what was going on in a suspicious situation, or, using the words of Suberu , “where the police believe a crime has recently been committed”. [ 8 ] Each of the officers testified that neither had any grounds to be suspicious that C.G.E. (or D., for that matter) was about to commit a criminal offence, or that either had recently done so.

At the outset, therefore, I am satisfied that any police interaction with either C.G.E. or D. was unnecessary, as on the facts of this case, as soon as the police identified B.P., they immediately identified themselves as police officers (they were in plain clothes), and handcuffed and arrested him. [ 9 ] Further, this is not a situation of what one could call general questioning, as was the case in Suberu and other cases that have held that the police can ask general questions of bystanders, or when trying to sort out what is going on in certain situations, without triggering a detention.

For example, if the police come upon a motor vehicle accident scene, in which there are a number of bystanders in the area, general questioning of those bystanders is appropriate to find out who the drivers of the vehicle were. However, that is a far cry from what happened here. Constable Ly himself said that he found it odd, in his words, that “Justin Fiddler” was with two guys with mugshots. He was curious who it was hanging around with B.P., but he had no reason whatsoever to believe there was anything going on that warranted police investigation. [ 10 ] Cst.

Ly explained that he wanted to ask some preliminary questions of C.G.E. and D. as they had stopped and stared when B.P. was being arrested and for “officer safety precautions”, so he asked them to sit down so he could find out who they were and what they were up to. [ 11 ] There was nothing out of the ordinary in C.G.E. and D. watching while their friend was being arrested; the three were in a group, and the arrest obviously altered their plans. There was nothing threatening or menacing in anything C.G.E. and/or D. were doing. [ 12 ] With respect to “officer safety precautions”, Cst.

Ly testified that there were three youths, and only two officers. One of these youths, I note, was immediately arrested and handcuffed. Any concern for officer safety could have been met by telling C.G.E. and D. to move along. Telling all three to sit on the grass, without searching either C.G.E. or D., was not necessary for officer safety reasons. [ 13 ] Cst. Ly also indicated that C.G.E. was “quite chatty”, so he asked him his name so he knew who he was talking to. Any conversation, of course, was after C.G.E. had been told to sit on the grass. If Cst.

Ly merely wanted to know the name of the individual he was chatting with, there would be no need to ascertain that individual’s date of birth, ask him if he had been arrested before, and run him on CPIC, all of which Constable Ly did, or instructed Constable Nash to do. [ 14 ] C.G.E. testified, and he stated that he was just 15 years old on May 7, 2013. He said that when B.P. was arrested, “I wasn’t sure if I could go”, and stated that Constable Ly told all three to sit down on the grass.

He said “I was sitting there because Constable Ly told me to” and “I thought I wasn’t allowed to go”, and that “I thought they would stop me”. In cross-examination, he said he “assumed” he had to stay. Analysis [ 15 ] Looking at the criteria from para. 44 of Grant , I start with considering the circumstances giving rise to the encounter as they would reasonably be perceived by C.G.E.

The police were singling out each of C.G.E. and D. for “focussed investigation”: why else would they ask questions of them, and why else would they run their names on CPIC? [ 16 ] When I look at the nature of the police conduct, et cetera , I am satisfied that the police made what could only reasonably be interpreted by this young person as a direct order that he remain on the scene.

The officers were taking control over the movements of C.G.E., and they kept him at the scene for seven to ten minutes until a patrol car came to the scene, at the officers’ request, to both transport B.P. to detention, and run the CPIC checks, there being a computer in the patrol car. The officers wanted to, and did, maintain control over E.C.G. after the arrest of B.P. Even had this been the “casual conversation” that Constable Ly claims this was, there would have been no need to keep C.G.E. for the 7 to 10 minutes that it took for the squad car to arrive, and there would be no need to run his

name on CPIC. [ 17 ] Clearly, Constable Ly was curious as to who this individual was, why he was hanging around with B.P., and despite the fact he had no reason to suspect anything was amiss, he determined that he would detain C.G.E. in an effort to satisfy the officer’s curiosity. [ 18 ] Looking at the third factor, this was a young man, being directed by police officers to sit in their presence. Although it is true that C.G.E. did not ask if he was free to go, it is not his obligation to try to sort out what is going on, in a situation where he has been told to wait by the police.

There was a complete imbalance of power here, as most individuals don’t know what their legal rights are, and this is particularly so with a 15 year old youth. [ 19 ] I believe C.G.E. when he states that he did not believe he could leave the area. The bona fides of C.G.E.’s belief is buttressed by the fact that Cst. Nash, who was dealing primarily with B.P., said that if C.G.E. had tried to leave, she would likely have told him to wait. [ 20 ] The Crown relies on R. v. Suberu , supra, and R. v. D.(C.E.) , 2007 SKPC 81 .

However, both those cases are factually different from the case before the court today. [ 21 ] In Suberu the Court noted that when Mr. Suberu was allegedly detained, as he claimed he was, he was actually sitting in a van. What had occurred in that case was that the police were investigating a specific crime, and had information that there were two male suspects in a specific store that Mr. Suberu was just then walking out of, saying to the officer as he went by that “he did this, not me, so I guess I can go”. Quite properly, the constable in Suberu asked a few questions of Mr.

Suberu, as the officer was trying to sort out the situation he had been sent to investigate. In this case, however, the only thing Constable Ly could sort out was what he was curious about: as he testified, he was “not sure who they were or what their intentions were”. Further, in Suberu , the officer made no attempt to control the movements of Mr. Suberu; he simply spoke to him as the latter sat in the van. In this case, I am satisfied that Constable Ly’s actions went considerably further. [ 22 ] In the other case relied on by the Crown, R. v.

D. (C.E.) , the police were dispatched to investigate a noise complaint. In that case, Judge Kolenick held, in rejecting the applicant’s Charter application, “if there was anything arbitrary or unreasonable in Constable Wiebe’s encounter with the accused, it was not apparent from the evidence”.

In this case, I find there were things, apparent from the evidence, that were arbitrary or unreasonable in Constable Ly’s interaction with these young persons. [ 23 ] On a Charter application it is incumbent upon the applicant to establish, on a balance of probabilities, that his rights under the Charter have been violated. I am satisfied that the applicant has established that his rights under s. 9 of the Charter , the right not to be arbitrarily detained or imprisoned, has been violated in the manner in which he was detained.

This is a case in which psychological detention, as discussed in Grant , has occurred. [ 24 ] Turning to the Grant analysis to determine whether or not the evidence should be excluded, I look firstly at the seriousness of the Charter -infringing state conduct. Ms. Sim refers to para. 75 of Grant, which states that “wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the Court dissociate itself from such conduct.

It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.” In my view, Constable Ly’s actions showed a wilful disregard for the rights of C.G.E. in these circumstances. [ 25 ] Looking at the impact on the Charter protected interests of the accused, whereas I accept that the period of detention was probably about ten minutes, it is not solely a matter of time.

This was more than a cursory few questions being asked of a bystander at the scene of an accident or a suspected crime; this is a focussed and deliberate deprivation of a young person’s right, and severely undermines the interest protected by s. 9. [ 26 ] With respect to society’s interest in adjudication on the merits, I am guided by the comments in para. 91 of Grant , which states: [91] There is no absolute rule of exclusion of Charter -infringing statements under 24(2), as there is for involuntary confessions at common law.

However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter , on the ground that admission on balance would bring the administration of justice into disrepute. [ 27 ] I am cognizant that the entire case of the Crown is based on the false statement given by the young person. As such, it is

essential to the Crown’s success in this trial. On the third leg of the Grant analysis, I do feel that society’s interest in “the truth seeking function of the criminal trial process would be better served by admission of the evidence”, as opposed to its exclusion. [ 28 ] On balance, however, in all these circumstances, I am satisfied that the evidence provided by C.G.E., by way of his false identification during his encounter with the police, will be excluded. ______________________ B.G. Morgan, J