Her Majesty the Queen - v. -, 2017 SKPC 010

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 010 Date: January 31, 2017 Information: 31257446 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lorne Robert Burles Appearing: Mr. William Burge, Q.C. For the Crown Mr. Aaron Fox, Q.C. For the Defence _____________________________________________________________________________ DECISION H.M. HARRADENCE , J _____________________________________________________________________________

INTRODUCTION [ 1 ] The accused is charged as follows: On or about the 2 nd day of April, A.D. 2014 at Muskoday First Nations in the Province of Saskatchewan did commit an assault on Janelle Sugar contrary to

Section 266 of the Criminal Code . [ 2 ] He is employed as a Constable by the Royal Canadian Mounted Police. The alleged assault occurred during the course of an arrest of Ms. Sugar. At the commencement of this trial, counsel informed me that the issue would be whether the arrest by Constable Burles of Ms. Sugar was a lawful arrest. Mr. Fox indicated that if the Court is satisfied beyond a reasonable doubt that the arrest was not lawful then the accused had no authority to take physical action against Ms.

Sugar and he would be guilty of assault. [ 3 ] As this is a criminal trial, the accused is innocent of this charge unless the Crown satisfies me of his guilt beyond a reasonable doubt. This presumption of innocence is fundamental and applies to this trial as it would any other criminal trial. THE ISSUE [ 4 ] Did the accused have the lawful authority to arrest Ms. Sugar? THE LAW [ 5 ] The issue arises as a result of a traffic stop on the Muskoday First Nation on April 2, 2014. The accused believed Ms. Sugar to be a suspended driver contrary to s. 32 of The Traffic Safety Act . He arrested her for this offence.

During the course of this arrest she was resistant, and as a result, he used force to complete the arrest. [ 6 ] Mr. Fox maintains that the use of force is justified by the circumstances. He primarily relies on s. 495 of the Criminal Code as authorizing the arrest of Ms. Sugar. In the alternative, he argues that the arrest could be justified under s. 18 of the Royal Canadian Mounted Police Act . Additionally Mr. Fox suggests that an arrest for the offence of obstruction may have been justified. [ 7 ] The Crown disagreed. Mr.

Burge wrote to the Court on September 20, 2016, the following: It is the position of the Crown that s. 495 of the Criminal Code does not have general application to proceedings governed by The

Summary Offences Procedures Act, 1990 . The general procedural provisions are set out in s. 4 of SOPA . Section 4(4) incorporates certain provisions of the Criminal Code :

(4) Subject to this Act, or any other Act or any regulation , Parts XXII, XXVI and XXVII, other than

section 840, and sections 20, 21, 22, 484 and 527 insofar as it relates to a witness, sections 718.3 , 719 , subsection 732(1) and

section 734.8 of the Criminal Code , as amended from time to time, apply with any necessary modification, to: (

a) summary conviction proceedings before justices; and (

b) appeals from convictions, acquittals, sentencing or other orders made under

summary conviction proceedings. (Emphasis added)

Part XXVII of the Criminal Code contains s. 795 , which further incorporates

Part XVI. That is where s. 495 is located. There is no other reference to s. 495 of the Criminal Code in SOPA .

The application of s. 495 is subject to the provisions of The Traffic Safety Act , which sets out limitations on the power of arrest: 276(1) If a peace officer finds a person contravening

section 32, 57, 140, 209.1, 213 or 239, the peace officer may arrest that person, if the officer has reasonable grounds to believe that the person will not appear in court to answer a summons. (Emphasis added)

(2) A peace officer who has arrested a person in accordance with this

section shall, with reasonable diligence, take the person so arrested before a court of competent jurisdiction so that the arrested person may be dealt with according to law. The power of arrest is limited to six enumerated offence(s), and is further limited to circumstances where the peace officer has reasonable grounds to believe that the person won’t appear in court to answer a summons. Cst. Burles had no such belief, and any authority to arrest under s. 495 of the Criminal Code is subject to the limitations expressed in s. 276 of The Traffic Safety Act . [ 8 ] The intention of the Saskatchewan legislation is clear.

Section 276 of The Traffic Safety Act limits the power of arrest for the offence of driving while suspended. An arrest for this offence is lawful only if the officer making the arrest has reasonable grounds to believe the person will not appear in Court.

Section 495 of the Criminal Code has no application to an arrest of a person for the offence of driving while suspended under The Traffic Safety Act . The power to arrest for a traffic offence in Saskatchewan must be used sparingly and only when the narrow circumstances, as defined in the legislation, permit an arrest. THE FACTS [ 9 ] The Crown called one witness, Janelle Sugar. The accused chose to testify as well as call two other witnesses, Raul Alasagas; and Donald Zurakowski. In addition to the viva voce evidence, the Crown tendered two exhibits: 1. General Report of Constable Burles (P1); and 2.

The Use of Force Report prepared by Constable Burles (P2). These documents were admitted into evidence by consent. The defence tendered Ms. Sugar’s driver’s abstract, D1, with the consent of the Crown. [ 10 ] Much of the evidence is contradictory. On April 2, 2014, at approximately 9:00 a.m., the accused was working on the Muskoday First Nation. He saw a vehicle and determined by the plate number that the owner of the vehicle was suspended. He stopped the vehicle. Ms. Sugar was the driver.

She says that she had stopped at her grandmother’s driveway when, “…about four or five minutes later the cop car had come racing up the same direction that I had just drove from with the lights on and sirens” (p T6). The accused says “that is absolutely incorrect”, and that he followed the vehicle operated by Ms. Sugar, “about another two blocks maybe before he finally came to a stop right behind her”. He agrees that while he followed her his lights and siren were activated. [ 11 ] Ms. Sugar says that when the accused attended at her window he had a spray can in his hand and said to her, “don’t make me use this”.

The accused denies that he had any can in his hand. He says that when he attended the driver’s window he asked for her driver’s licence and registration. Immediately, upon him exiting his vehicle she was argumentative. He says she was demanding to know why she was stopped. She did not produce any identification although she did tell him she owned the vehicle. Based on this information and the information the accused had obtained using the licence plate number, he believed her licence was suspended. He told her so.

She continued to be argumentative insisting she was not a suspended driver. [ 12 ] The situation escalated due to Ms. Sugar’s agitation. She became belligerent calling the accused “fucking asshole”. He placed her under arrest for driving while suspended (P1 – General Report of Constable Burles). I am satisfied that he did not arrest her for any other charge at this time, nor does the evidence justify an arrest on any other charges.

He testified that his initial purpose in arresting her was “primarily to establish identity and stop the continuation of the offence” (p T76). [ 13 ] The situation continued to deteriorate. She refused to get out of her vehicle stating that she did not want to leave her infant who was in a car seat in the back of her vehicle. She says that the accused began hitting her really hard on the shoulder with the heel of his hand. She further says that the accused started to pull on her ear “really really hard”, as well as pulling her hair behind her ear (p T8). The accused denies hitting Ms.

Sugar’s shoulder or grabbing her ear or pulling on her hair (p T81).

[ 14 ] In his testimony, the accused maintains that he acted according to the use of force model by putting both his hands on her left wrist and telling her to let go of the steering wheel. (p T74) [ 15 ] Throughout her testimony, Ms. Sugar was definite that she was never informed that she was under arrest. In cross- examination, she indicated the following: Q Did he tell you you were under arrest? A No. Q Never said, “you’re under arrest.” A No. Q At any point in - A No. Q - time during all of these events did he ever say to you, “you’re under arrest”? A No.

Q Did he ever tell you at any point in time, “stop resisting”? A When we were at the end of the driveway when he had me on the ground. He kept telling - saying, “stop resisting”. Q Did he - A “Stop resisting”, but I - (pause). Q Did he ever at any point in time say, “you’re under arrest. Get out of the vehicle”? A No [ 16 ] Raul Alasagas and Donald Zurakowski were working at the home located in the vicinity of where the vehicle stop occurred. They were installing or repairing a satellite or internet connection. Their van was in the driveway. They saw the commotion, and heard the officer tell Ms.

Sugar she was under arrest. They also saw her drive a short distance. Mr. Alasagas saw the vehicle move down the driveway approximately 10 to 20 feet before coming to a stop behind their van. He says that when the vehicle was put into gear he heard the accused say “are you kidding me” (p T51), before he chased after it. Once the vehicle stopped, Mr. Alasagas heard Ms. Sugar say to him and Mr. Zurakowski, “Are you guys coward? Are you guys going to just watch?” (p T52) [ 17 ] Mr. Zurakowski believes that when Ms.

Sugar started to drive away from the officer, he said to her words to the effect, you are under arrest. Mr. Zurakowski also testified that once the vehicle stopped he was uncertain about how the door opened but he knew there was resistance and within moments “he had her on the ground, you know, face down and it appeared he was putting handcuffs on her”. (p T57) [ 18 ] Testifying in examination in-chief, the accused provided his experience generally with traffic stops and his recollection of this specific incident (T-71-72): Q So you had activated your lights and siren and followed her, as you described.

After she pulled over and stopped, what did you do then? A After that point, once she stopped, I had a quick glance, made sure it was the same licence plate, that I hadn’t read it wrong. It came back 162JEY. That was the same licence plate I queried. That was the same one that was on the vehicle. As soon as I got out, I was going

to go and approach the driver. As soon as I got out of the door, she started yelling, “why did you stop me?” I’m used to people sometimes being upset with getting tickets and having like an unpleasant attitude but never before I even actually spoken to the person. So that really struck me as a little odd. I wasn’t going to start shouting back and forth with her there, so I told her I was coming to talk to her. She kept asking why I pulled her over. I told her I needed to check licence and registration. She again demanded to know why I had stopped her.

I told her that the owner of the vehicle has a suspended licence, and I asked her if it was her vehicle. She said it was her vehicle and then again asked why I had stopped her. So I explained to her again. She said she wasn’t suspended and asked again why I had pulled her over. At that point I was trying to establish any identity. I had asked if she had any I.D. with her. She said she didn’t. Didn’t reach for any documents, anything like that. I was reasonably confident it was her, given that she matched the age, but that was about it. But I wanted to confirm identity before proceeding with an actual charge.

So I asked her again if she had any kind of identification with her. She said, “no”. I believed at that point she was going to keep driving. I was concerned, one, with identity because a lot of times, almost once a week, to be honest with you, I’ll pull over someone who will not provide any identification and will only say it’s their vehicle. It’s extremely common that that turns out to be not the case.

The easiest way to find out is to simply talk with them and bring them back to the vehicle, get some kind of conversation going, confirm, ask them where their address is, their postal code, middle name, things like that. Very, very often people will forget those things if it’s not who they actually are. [ 19 ] The accused maintained throughout his testimony that he could not confirm the driver’s identity or have any confidence that she would attend Court. However, during a skillful cross-examination by Mr. Burge, the accused agreed that he arrested Ms.

Sugar because he had reasonable grounds as to her identity: Q You had no information that would lead you to believe that she wouldn’t come to court, if you had served some documents on her? A When I originally queried her, no. Q At any point that morning when you were dealing with Janelle Sugar at the roadside, you had no information that would - that told you that she would not come to court if you served documents on her. A Oh. No. I wouldn’t say that at all. When a person refuses to identify themselves or provide any I.D. it makes it impossible to issue them a ticket.

Some tickets are servable to the registered owner, as like they all have voluntary payment options attached to them, such as speeding or running a stop sign or photo radar. But when it comes to a straight summons offence, such as driving while suspended, it needs to be served in person to the actual offender. Q Mmhmm. A So without being able to verify I.D., there would be no - I would have no information on whose name to put on the ticket. Q You had no information that Janelle Sugar was unlikely to appear in court if you had issued a ticket to her; is that correct?

A Once I would have been able to confirm that, then no. Once I would have been able to confirm I.D. I mean. Q And you simply weren’t able to confirm I.D.? A No. She wasn’t giving me any I.D. She said that she wasn’t suspended but that it was her car. Those were two very conflicting things. Given her complete unwillingness to cooperate in any way made me think that I needed more information than just her saying, “it’s my car”. Again, that happens on a weekly basis, someone will say, “oh, it is my vehicle.” And then through further investigation I find that that’s not the case.

And the actual owner isn’t - or the actual person whose name they’ve given me isn’t even there. Q So did you not even - did you not believe this person was Janelle Sugar? A I believed it could be. I had grounds to believe that was probably her, just based on she was the only person in the vehicle. She was roughly the right age. It was just a small town. She’s the only one. She was with a small baby. And she was the registered owner of the vehicle. Q So I’ll ask you one more time, sir, just to backtrack - A Oh, certainly. Q - A bit.

You never received any information from any other source that caused you to believe that Janelle Sugar would not - if you gave Janelle Sugar a ticket that Janelle Sugar would not come to court.

A No, that’s true. Q You have told us that you weren’t comfortable - or you weren’t comfortable issuing a ticket to Janelle Sugar because you weren’t sure who this person was? A Until I confirm the I.D., no, I’m not comfortable issuing anyone a ticket for again the obvious reasons. As often as it happens, people will give a false name. Someone simply saying, “that’s my vehicle”, in my view, isn’t enough to confirm - to quantify as identification.

As I say, it happens so often where people will give a false name and through even very brief investigation, through talking with them, it’s determined that that’s not the case. In fact, even later that same day I had that exact same - Q Okay. A - situation come up. Q I’ll talk to you about Janelle Sugar, please - A Certainly. Q - sir. You - the only reason to issue any process or take any steps to compel Janelle Sugar’s appearance in court on this occasion, on the 2nd of April, 2014, was because she was a suspended driver; is that correct? A Originally, yes.

Q And sir, so if an offence was committed, it had to be Janelle Sugar; isn’t that correct? A That’s correct. Q You tell us that you were sufficiently satisfied that you forcefully arrested her? You were sufficiently satisfied of her identity that you forcefully arrested her? A I had reasonable grounds to believe it was her, yes. [ 20 ] Shortly after this altercation, an older lady emerged from the house and agreed to take custody of the infant. The accused informed Ms. Sugar that she was under arrest for driving while suspended and resisting arrest. She was taken to the Prince Albert detachment of the R.C.M.P.

Later that day she was driven back to Muskoday First Nation by the accused. [ 21 ] Ms. Sugar’s evidence is troubling. I do not believe her on several issues of significance: 1. I do not believe she was stopped for four or five minutes before the accused arrived on the scene. Rather, I believe the accused is correct that he pursued her for a short distance before she stopped her vehicle. 2. I do not believe Ms. Sugar when she testified that when the accused approached her vehicle he was carrying a can. I accept the accused’s evidence that he was not carrying anything when he approached Ms. Sugar’s vehicle. 3.

I do not believe her evidence when she indicated that the accused repeatedly hit her in the shoulder with the heel of his hand. 4. I do not believe her evidence when she testified that the accused pulled her hair and her ear. 5. I accept the evidence of the two installers, Alasagas and Zurakowski that the accused told Ms. Sugar she was under arrest. I do not believe her evidence when she insisted that she was never informed she was under arrest. [ 22 ] It is apparent to me that Ms. Sugar’s objective on April 2, 2014 was to make the accused’s job as difficult as possible.

She was uncooperative and quickly became belligerent. She called the accused on several occasions a “fucking asshole”. [ 23 ] Ms. Sugar’s evidence, I find, was a deliberate attempt to exaggerate the assaultive behaviour she alleged and deny any arrest which may have been a justification for the use of physical force.

[24] The accused testified in a forthright manner. It is my belief his testimony was focused on s. 495 of the Criminal Code. Nonetheless, I do accept, at the time of the arrest, that given Ms. Sugar’s attitude, he was uncertain of her identity. He wasuncomfortable, given his experience, accepting, without more, that the identity of the driver had been established. The accused testifiedhe had a significant amount of experience dealing with people who provide false names, however, he indicated that this situationescalated beyond what he expected or ever experienced before.

ANALYSIS [25] As indicated, s. 276 permits an arrest if there exists reasonable grounds to believe the person will not appear in Court toanswer to a summons. I must consider whether the evidence establishes beyond a reasonable doubt that the accused did not havereasonable grounds to believe Ms. Sugar would not appear in Court in answer to a summons.

In considering this circumstance, I am mindful of the comment made by Justice Binnie in R v Asante-Mensah, 2003 SCC 38, at para 73: “A certain amount of latitude ispermitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.” [26] In R v Storrey, (SCC), 1990 53 CCC 3d 316, at p 324, the Supreme Court of Canada identifies the definitionof reasonable grounds to arrest as containing an objective and subjective element: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. These grounds must in addition be justifiable from an objective point of view. That is to say a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima face case for conviction before making the arrest. [27] In R v Shinkewski, 2012 SKCA 63, Justice Caldwell refers to the threshold required to establish reasonable grounds in thecontext of a breath demand: [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview 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 objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable 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, but maydisregard 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 timing involved,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, 266 2012SKCA 63 C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [28] In this case, the Crown is required to prove beyond a reasonable doubt that the accused lacked lawful authority to arrest Ms.Sugar. I have determined that the only authority to arrest is contained in s. 276 of The Traffic Safety Act: reasonable grounds to believeshe will not attend Court in answer to a summons.

I must examine the circumstances contextually including the dynamics at play; Ms.Sugar’s defiance and belligerence, including her driving her car a short distance from the accused, as well as his experiences in attendingtraffic stops where individuals have provided false names in the past.

[ 29 ] Ms. Sugar refused to identify herself or provide any identification. Without confirmation, the accused could not be satisfied of her identity or that she would attend Court. He may have had reasonable grounds to believe he was arresting Ms. Sugar but given her aggressive and belligerent attitude it is reasonable to believe she would not attend Court. [ 30 ] The accused testified, in his experience, that until he had a confirmed identity, it was impossible to issue a ticket and ensure attendance of the driver at Court.

In this situation as it was unfolding at the roadside, combined with the accused’s experience, his belief is more than a hunch. Ms. Sugar’s lack of cooperation and belligerence provide an objective reasonableness for this belief. [ 31 ] The totality of the evidence satisfies me that the accused had reasonable grounds to believe that Ms. Sugar would not attend Court to answer a summons. On this point, at a minimum, I have a reasonable doubt.

The Crown has failed to prove an absence of lawful authority to arrest under s. 276 of The Traffic Safety Act . [ 32 ] I am satisfied that s. 276 of The Traffic Safety Act applied to the arrest of Ms. Sugar.

Section 25 of the Criminal Code applies to provincial offences ( R v Power , 2016 SKCA 29 (leave to appeal refused [2016] SCCA 193, at para 29-30)) and exempts this accused from criminal liability. I am not persuaded that any of the alternate arguments advanced by Mr. Fox apply.

Section 25 and similarly s. 18 of The Royal Canadian Mounted Police Act do not provide independent authority to arrest. It would also seem clear to me that the common-law arrest power should not be so broad as to include arrest for traffic tickets in the absence of express statutory authority. [ 33 ] The accused is found not guilty. Dated this 31 st day of January, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. ________________________ H.M. Harradence, J