R. v. Costain, 2011 ONCJ 559

COURT FILE No.: Toronto 4817-998-09-70020869 DATE: 2011·10·26 Citation: R. v. Costain , 2011 ONCJ 559 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DONLEY COSTAIN Before Justice William B. Horkins Heard on September 30, 2011 Reasons for Judgment released on October 26, 2011 J. Smith-Joy .............................................................................................................. for the Crown M. Webster ..................................................................................... for the accused Donley Costain W. B.

HORKINS, J.: [ 1 ] This case isolates a very interesting question of law; the accused was detained with respect to a Highway Traffic Act matter then ran from the police at the point of being informed that he was going to be arrested on an outstanding bench warrant. He is now charged with escaping custody.

He argues that he was never actually in custody and so must be acquitted on that charge. [ 2 ] The argument put forward is premised on the proposition that a physical touching is required to complete an intended arrest and that although the officer attempted to do so, no actual touching occurred and so there was no lawful arrest, therefore the accused was never “in custody”. [ 3 ] The facts of the case are straight forward and undisputed. On the night in question, the accused was riding his bike with no proper light and travelling the wrong way down a one way street. He was stopped and investigated by the police.

In the course of speaking to the accused and considering the issuance of a ticket, information came to the officer that there might be an outstanding bench warrant for the accused’s arrest. The officer played for time by continuing to chat with the accused while his partner called into the division to confirm the existence of the warrant. Once the warrant’s existence was in fact confirmed, the officer turned to the accused and told him that he was arresting him on the outstanding bench warrant. The accused said, “I don’t think so,” and bolted.

The officer gave chase but the accused managed to hop a few fences and get away. The accused is now before this Court charged with the offence of “escape lawful custody” contrary to s. 145(1) (

a) Criminal Code . [ 4 ] The accused submits that because he was never physically touched and because he never submitted to the arrest he was, in law, never under arrest, let alone in custody, and therefore, cannot be convicted of escaping from a “custody” that never existed. The Crown submits that the accused had already submitted to the initial detention and then became “arrested” when he was told that he was being arrested on the outstanding bench warrant. The Crown submits that managing to evade the officer’s physical touch does not entitle him to flee and escape the warrant.

The Crown’s position is attractive; surely, this accused was not entitled to evade an outstanding bench warrant simply by playing tag with the officer and running away. The Law [ 5 ] The offence of escape custody is set out in s. 145(1) (

a) of the Criminal Code :

(1) Everyone who … (

a) escapes from lawful custody [...]… is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on

summary conviction. [ 6 ] The accused is charged on the basis that he ran away after being placed under arrest. Therefore, the first question to be

addressed is whether or not the accused was ever under arrest. If not, the second question may arise whether he was none-the-less incustody within the meaning of this offence. Was the Accused under Arrest? [7] The essentials of an arrest are clearly stated in R. v. Whitfield[1] by Justice Judson: “The correct proposition of law is stated in 10 Hals., 3rd ed., p. 342, in these terms: 631. Meaning of arrest. Arrest consists of the actual seizure or touching[2] of a person's body with a view to his detention.

The merepronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arrestingofficer. An arrest may be made either with or without a warrant. There is no room for what seems to be a new subdivision of "arrest" into "custodial" arrest and "symbolical" or "technical" arrest. Anaccused is either arrested or he is not arrested.

If this accused was arrested, he escaped from lawful custody and is guilty under s. 125(a)of the Criminal Code.”[3] [8] The Ontario Court of Appeal cited and followed this very passage from Whitfield when discussing the meaning ofarrest in R. v. Asante-Mensah[4] and noted that: “This definition of arrest has been accepted in subsequent cases: see R. v. Latimer, (SCC), [1997] 1 S.C.R. 217 at p.231; R. v. Delong (1989), (ON CA), 47 C.C.C. (3d) 402 at p. 417 (Ont. C.A.) ...

In its study, Arrest (Working Paper41, 1985) at p. 31, the Law Reform Commission of Canada, relying on Whitfield, supports a definition in which "physical restraint, orsubmission to physical restraint, is the essence of arrest and this concept is virtually synonymous with detention', custody', orimprisonment'.”[5] [9] I am forced to conclude that due to the complete absence of any physical touching accompanying the ensuingdeclaration of arrest, in law, this accused was never actually under arrest. [10] A practical illustration of the need for a “custodial” component to a valid arrest arose in R. v. Wilson[6].

In that case, the accused had been holding a hostage in an 8th floor apartment. A police officer stationed on an adjoining balcony pointed his gun at theaccused and told him that he was under arrest. The accused put his hands up and started to go to the ground as directed but then changedhis mind and climbed over the balcony to the floor below and escaped. Justice Lipson concluded that despite the momentary compliancethere was… “no evidence that the officer effected an arrest of the accused within the meaning of the above-cited authorities.

Because of theirrespective positions, the officer was not in a position to touch or otherwise take physical custody of the accused. Mr. Wilson respondedbriefly to some of the officer's commands such as showing his hands and momentarily dropping to one knee while he considered hisavenues of escape. However, there is no evidence that Wilson submitted to the custody of P.C. Barrera. There is no evidence that Mr.Wilson was in the custody of the officer at the time he slid over the balcony railing to avoid arrest.

Therefore he could not have beenescaping lawful custody.” [11] There is some law that suggests that a detention short of arrest will amount to being “in custody”. In the case of R. v.Williams[7], the accused was arrested for impaired driving and was placed in a police vehicle. He fled from the vehicle. The Court heldthat the fact that he was detained in order to be conveyed to the police station, to provide breathalyzer samples, meant that he was inlawful custody. A similar result was reached in R. v.

Radchenka[8] where it was found that the accused was detained when the officermade the breathalyzer demand, even though the accused voluntarily went to sit in the back of the police car. In any event, when he triedto get out of the car and was grabbed by the officer, he was under arrest. These cases may be distinguishable on the basis that in theimpaired driving context there is a particular statutory form of detention created by the legislation that puts the accused “in custody “even though he has not been arrested.

In those situations, the accused is compelled to accompany the officer pursuant to the breathdemand and in that sense the suspect is both de facto and in law, “in custody”. [12] There is also the case of R. v. Jackman[9], out of the Court of Appeal in Newfoundland and Labrador, where the accusedwas identified as the person responsible for causing a disturbance and was placed in a police cruiser. Some friends opened the door andhe fled. At trial, he was acquitted of escaping from lawful custody on the ground that he was never placed under arrest or in lawfulcustody.

The Crown’s appeal was allowed and a new trial was ordered. The Court of Appeal held that the accused was placed in lawfulcustody when he was taken to the cruiser, because the officer who received him (from another officer) and placed him in custody hadreasonable and probable grounds to believe that the other officer had witnessed the disturbance. [13] I am also mindful of the more recent decision from the Supreme Court of Canada in R. v.

Suberu[10], where it was heldthat a suspect was not “detained” even when he was expressly told by the investigating officer that he was not free to leave, until theofficer was able to get a better understanding of the situation at hand. Despite the very persuasive dissent by Justice Binnie, I am boundby the view of the majority on this point.

[ 14 ] It also seems to me that Whitfield expressly excludes any form of detention short of arrest from consideration in the context of this offence. In Whitfield an arrest was frustrated by the accused escaping before he was subdued. The officer saw the accused stopped at a red light and told him that he had a warrant for his arrest. The accused tried to drive off; the officer ran up and grabbed his shirt through the car window saying, “You are under arrest”. The accused then broke free and drove off.

The issue was whether the fleeting grab of the accused’s shirt prior to him escaping was enough to amount to “custody”. The majority found that it was. The Court in Whitfield clearly grounded the issue of there being “custody” on the fact of a valid completed arrest, however fleeting it was. [ 15 ] In the case at bar there was no physical touching of the accused at the material time and therefore I conclude that the arrest was never completed. It follows also then that I am compelled to conclude that the situation never amounted to a state of “custody”.

And so, after careful consideration, I am satisfied that the accused has not committed the offence of escape lawful custody and that he is entitled to an acquittal. [ 16 ] I realise that this result may seem unsatisfactory to the officer and to the Crown in seeming to vindicate the clear misconduct of the accused, and so there is more that needs to be said here. In my view, the officer in this case conducted himself very professionally. He was doing his job responsibly, cautiously and with a view to minimizing any interference with the liberty of the accused until he was certain that a warrant, in fact, existed.

The acquittal in this case ought not to be taken as any criticism of his conduct. [ 17 ] The dissent in Whitfield confirms my view that the wrong charge was proceeded with against this accused. In his dissent Justice Hall states that the correct charge in these circumstances, an attempted arrest falling short of custody, is an “obstruct police” charge as opposed to an escape custody charge: “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 he has not committed an offence. Parliament has legislated specifically in this regard.

In these circumstances he is clearly guilty under s. 110(a) [11] Parliament had to deal with two situations: (1) the arrest or taking of a person into custody when authorized by law; (2) the keeping of such a person in custody once he has been lawfully arrested and/or sentenced.

By creating two offences, the earlier dealing with the actual arrest or attempt to arrest and the later dealing with escaping from lawful custody, Parliament clearly recognized that the two situations were different and not interchangeable and Parliament must be presumed to have known that the words "arrest" and "custody" are not synonymous.” [ 18 ] As Justice Hall points out, these two distinct offences are not interchangeable and are not included the one with the other. 12 Therefore the charge of escape custody against this accused must be dismissed.

Released: October 26, 2011 __________________________________ Justice William B. Horkins