R v Crowe, 2021 SKCA 66

Court of Appeal for Saskatchewan Docket: CACR3383 Citation: R v Crowe , 2021 SKCA 66 Date: 2021-04-20 Between: Albert Crowe Appellant And Her Majesty the Queen Respondent Before: Ryan-Froslie, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr. Justice Tholl On appeal from: Provincial Court, Wynyard Appeal heard: February 17, 2021 Counsel: Dusty T. Ernewein for the Appellant Kelly Kaip for the Respondent Ryan-Froslie J.A. I.

INTRODUCTION [ 1 ] The appellant, Albert Crowe, was convicted in Provincial Court of having care and control of a motor vehicle while his ability to operate the same was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code [1] . The offence occurred on the Muskowekwan First Nation and was observed by two police officers who were responding to a 911 call. [ 2 ] At trial, Mr. Crowe alleged that the police officers had entered the private property where he was located without lawful authority, and had breached his rights under the Canadian Charter of Rights and Freedoms [ Charter ] to be secure from unreasonable search and seizure ( s. 8 ) and not to be arbitrarily detained ( s. 9 ). [ 3 ] Following a voir dire , the trial judge found that Mr. Crowe’s Charter rights had not been infringed. Mr.

Crowe appeals against his conviction on the basis that the trial judge erred in reaching that conclusion. He also argues the trial judge breached her duty to provide him, a self-represented accused, with the minimum assistance necessary to ensure a fair trial. [ 4 ] For the reasons set out herein, Mr. Crowe’s appeal must be dismissed. II. BACKGROUND [ 5 ] On August 27, 2017, at approximately 2:00 a.m., the RCMP received a 911 call from House 195 on the Muskowekwan First Nation. The caller requested assistance to remove people, who were drinking, from the residence. Constable Ramey and Cst.

Wachal responded to the call. [ 6 ] When the police officers arrived at House 195, the lights were “completely off” and “the doors were shut”. In the words of Cst. Ramey, “[i]t appeared quiet, nothing going on in the house”, which was contrary to the information received from the 911 caller. [ 7 ] As the police officers pulled up to House 195, they saw the tail lights of a vehicle just off to the right through a stand of trees. Constable Ramey estimated that he was about 30 metres from the vehicle at the time. The police officers decided to investigate whether the vehicle had anything to do with the 911 call.

They drove down a trail (also described as a driveway) towards the vehicle. Constable Ramey testified that when they rounded the trees, he saw another house – House 196 – and exhaust coming from the vehicle. According to Cst. Ramey, the vehicle’s lights were on and it was running. Constable Wachal did not recall whether the vehicle was running, but confirmed the lights were on. [ 8 ] The police officers pulled up behind the vehicle. Constable Ramey testified at that point, the vehicle’s engine was turned off. Both police officers saw Mr.

Crowe, who was the sole occupant of the vehicle, exit from the driver’s seat. Mr. Crowe was “staggering and was unsteady on his feet”. According to Cst. Ramey, Mr. Crowe walked about ten feet from the vehicle to House 196, where he steadied himself against the outside balcony. When Cst. Ramey approached Mr. Crowe to talk to him, he detected a “very strong smell of beverage alcohol” coming from Mr. Crowe’s breath and found Mr. Crowe had “very slurred speech”. Mr. Crowe had possession of the keys to the motor vehicle. According to Mr.

Crowe’s evidence, the keys were clipped to a loop on his pants. [ 9 ] Constable Ramey testified that he observed Mr. Crowe for a couple minutes and at that point formed the opinion that Mr. Crowe was impaired by alcohol. He arrested Mr. Crowe for impaired care and control of a motor vehicle, placed him in handcuffs, searched him incidental to the arrest and placed him in the back of the police vehicle. [ 10 ] Constable Ramey testified that once Mr. Crowe was in the police vehicle a breathalyzer demand was made, followed by him giving Mr. Crowe his rights to counsel, and the police warning. Mr.

Crowe indicated to Cst. Ramey that he understood his rights and asked

to speak to counsel. [11] Constable Ramey testified that he transported Mr. Crowe to the police detachment, where he was afforded the opportunity tocall legal counsel. Mr. Crowe then provided breath samples. He was subsequently charged with driving while over .08 and having careand control of a motor vehicle while his ability to operate the same was impaired by alcohol. [12] Mr. Crowe was self-represented at trial, though prior to that time he had several different lawyers. Mr. Crowe alleged the policeofficers had violated his ss. 8 and 9 Charter rights.

Accordingly, the trial commenced with a voir dire to determine whether the allegedbreaches had occurred. During the voir dire, Cst. Ramey, Cst. Wachal and the breathalyzer technician testified for the Crown. Mr. Crowetestified on his own behalf and, in addition, called two Band councillors and a resident of the First Nation, to establish the “trail” thepolice officers had driven down was private property. Mr. Crowe testified that, when the police officers arrived, he was walking fromHouse 195 to House 196 to ask the occupant (his uncle) for a ride home because he was too intoxicated to drive. Mr.

Crowe attested thathe had only approached the vehicle to lock it and that he had no intention of driving the same. All of the evidence tendered on the voirdire was applied to the trial proper. III. THE TRIAL JUDGE’S VOIR DIRE DECISION [13] Mr. Crowe’s grounds of appeal with respect to the breach of his Charter rights call into question the trial judge’s voir diredecision. [14] The trial judge accepted that Mr. Crowe was detained and arrested while situated on private property.

She also accepted theevidence of Ernest Moise, one of the Band councillors, that the road connecting House 195 and House 196 is a trail used by the watertruck to fill the cisterns on both properties. The trial judge concluded Mr. Crowe’s situation was distinguishable from that which existed inR v Lux, 2012 SKCA 129, 295 CCC (3d) 236 [Lux], where this Court determined The Traffic Safety Act, SS 2004, c T-18.1, does notauthorize police officers to conduct random stops on private property, including parking lots. The trial judge found that there had been notraffic safety stop in this case.

Rather, the police officers were responding to a 911 call, and had approached Mr. Crowe’s vehicle, todetermine whether it was connected to that call. [15] The trial judge found, relying on R v Jones, 2015 SKPC 29, 468 Sask R 264, and the Supreme Court of Canada’s decision in Rv Godoy, (SCC), [1999] 1 SCR 311 [Godoy], that police officers have authority to investigate 911 calls. She concludedthat the police officers had approached Mr. Crowe’s vehicle “as part of their investigation surrounding the 911 call from a nearbyresidence, which was now dark and quiet” (voir dire decision at T152, line 6​8).

The trial judge indicated she was “satisfied” that, in thecircumstances, the police officers had lawful authority to enter the private property where Mr. Crowe’s vehicle was located. [16] The trial judge determined that “[w]hile initially attending at the vehicle to pursue an investigation surrounding a 911 call, theobservations of Constable Ramey turned the matter into an … entirely new situation.

A person exiting a motor vehicle from the driverseat, staggering and unsteady on his feet and when approached, speaking with slurred speech and the smelling [sic] of beverage alcohol”(voir dire decision at T152, lines 17–22). [17] The trial judge accepted that Cst. Ramey had reasonable grounds to arrest Mr. Crowe. As such, she found that Mr. Crowe hadnot proven, on a balance of probabilities, that his ss. 8 and 9 Charter rights were violated. [18] The trial judge went on to convict Mr. Crowe of having care and control of a motor vehicle while his ability to operate thatvehicle was impaired by alcohol.

She acquitted him of the charge of driving while over .08 as the Crown had failed to establish the criteriaset out in s. 320.31(1)(

a) of the Criminal Code, with respect to the calibration requirements of the breathalyzer instrument. IV. ISSUES [19] Mr. Crowe raised four grounds of appeal, which, based on his factum and oral arguments, can be reframed as follows: (

a) the trial judge erred by concluding that the police officers’ conduct fell within their statutory or common-law powers orduties; (

b) the trial judge erred in finding that Mr. Crowe’s s. 8 Charter rights had not been breached; (

c) the trial judge erred by failing to find that Mr. Crowe had been arbitrarily detained contrary to s. 9 of the Charter; and, (

d) the trial judge breached her duty to assist Mr. Crowe V. ANALYSIS A. Did the trial judge err by concluding that the police officers’ conduct fellwithin their statutory or common-law powers or duties? 1. Position of the parties [20] It is Mr. Crowe’s position that the police officers did not have authority to come onto the neighbouring private property ofHouse 196 when investigating the 911 call. He submits, relying on Godoy, that the police officers first had to attend at House 195 toverify the nature of the 911 complaint and, until that was done, they had no authority to broaden their investigation to include persons on

the adjoining property. [ 21 ] The Crown contends that the police were acting within the scope of their duties. 2. Analysis [ 22 ] I do not find Mr. Crowe’s argument to be persuasive. [ 23 ] In Godoy , the Supreme Court of Canada had an opportunity to address what powers police officers have when responding to emergency 911 calls.

Chief Justice Lamer, writing for the Court, held that “public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case” ( Godoy at para 11 ). [ 24 ] The Court found that the police had acted lawfully because it was necessary for them to enter the appellant’s apartment in order to determine the nature of the 911 call: [22] Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller.

The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there.

They do not have further permission to search premises or otherwise intrude on a resident's privacy or property. In Dedman , supra , at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable . A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such a course of action is mandated.

Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. (I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the "plain view doctrine" as it is not at issue on the facts of the case at bar.) (Emphasis added) Mr.

Crowe contends that this paragraph sets out how police officers must respond to 911 calls, namely, that they must first “locate the caller and determine his or her reasons for making the call and provide such assistance as may be required”. [ 25 ] A brief review of the facts of Godoy will help explain why I have concluded that it provides no assistance to Mr. Crowe in this appeal. [ 26 ] In response to a 911 call, four police officers arrived at the appellant’s apartment and knocked on the door.

The appellant partially opened the door, and when asked if things were alright, he responded by saying there was “no problem”. When the appellant then tried to close the door, one of the police officers put his foot in the way, and the four officers entered the apartment. Once inside, they heard a woman crying and found the appellant’s common-law wife in the bedroom, curled in the fetal position and sobbing. One of the officers observed swelling around her left eye, and the woman stated that the appellant had hit her. The police officers then attempted to arrest the appellant for assault.

The appellant resisted, and in the ensuing struggle, one of the police officer’s fingers was broken. The appellant was then charged with resisting arrest and assaulting a police officer. [ 27 ] The trial judge found that the police officers’ entry into the apartment was unauthorized and thus all subsequent actions by the police, including the appellant’s arrest, were illegal. The Crown appealed that decision. The Ontario Court (General Division) allowed the appeal on the basis that the 911 call and subsequent denial of entry constituted reasonable grounds to enter the apartment.

On further appeal to the Ontario Court of Appeal, the matter was dismissed on the basis that the 911 call gave the police officers reasonable grounds to believe there was an emergency in the apartment and that the caller was in distress. The appellant’s appeal to the Supreme Court of Canada was dismissed. [ 28 ] On the facts of Godoy , there was “no doubt” that the forcible entry by the police constituted a prima facie interference with Mr. Godoy’s liberty and property.

The issue in Godoy was whether the Ontario Court of Appeal had erred in finding that the police were acting in the execution of their duty to protect life and liberty when they forcibly entered Mr. Godoy’s apartment.

Chief Justice Lamer framed his analysis around the test set out in R v Waterfield , [1963] 3 ALL ER 659 (CA) [ Waterfield ] : [12] If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognised at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of power associated with the duty. [ 29 ] With respect to the first question raised by the Court in Waterfield , namely whether the police conduct falls within the general scope of any duty imposed by statute or recognized at common law, Lamer C.J.C. referred to s. 42 of the Police Services Act , RSO 1990, c P-15 .

That provision prescribes certain duties of police officers including the “powers and duties ascribed to a constable at common law” (s. 42(3)). He noted that the common-law duty had been recognized to include preservation of the peace, the prevention of crime, and the protection of life and property, but was not limited to protecting the lives of victims of crime. [ 30 ] Chief Justice Lamer confirmed that police officers have a common-law duty to respond to 911 calls: [16] A 911 call is a distress call - a cry for help.

It may indeed be precipitated by criminal events, but criminal activity is not a prerequisite for assistance. The duties specifically enumerated in s. 42 (1) of the Act may or may not be engaged. The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 911 call, the nature of the distress is unknown. However, in my view, it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance.

To act otherwise would seriously impair the effectiveness of the system and undermine its very purpose. The police duty to protect life is therefore engaged whenever it can be inferred that the 911

caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. [31] The Court in Godoy accepted that the “justifiability of an officer’s conduct depends on a number of factors including the dutybeing performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importanceof the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference” (at para 18quoting from R v Simpson (1993), (ON CA), 79 CCC (3d) 482 (Ont CA) at 499 [Simpson]). [32] All of this serves to illustrate why Mr.

Crowe’s argument misapprehends the direction provided in paragraph 22 of Godoy. Inthis passage, as I read it, the Court was not describing how police should respond to every 911 call. This is obvious from the statement inparagraph 22 that each case must be considered “in its own context, keeping in mind all the surrounding circumstances”. Morespecifically, the Court was not intending to suggest that a proper police response to a 911 call is limited to locating the caller anddetermining his or her reasons for making the call.

Rather, the Court was intending to set out, in broad strokes, the scope of police officers’common-law authority in responding to a 911 call. How that authority is exercised must be left in some measure to the reasonablediscretion of the police officers involved, recognizing that most 911 calls are emergent. In this regard, it is important to note thatemergency situations are rarely static; they are fluid and ever changing. The limit on the police officers’ discretion is that their conductmust be justifiable.

Whether that is so depends on the factors as set out by Doherty J.A. in Simpson and approved by Lamer C.J.C. inGodoy. [33] Further, it is important to remember that police officers are subject to numerous duties established by both statute and thecommon law. More than one of those duties, with its attendant authority and powers, may be engaged at the same time. Indeed, in Godoy,Lamer C.J.C. recognized this. At paragraphs 14 and 15, he set out the statutory duties of police officers pursuant to Ontario’s PoliceServices Act.

He followed that at paragraph 16 by stating that in responding to a 911 call, “[t]he duties specifically enumerated in section42(1) of the Act may or may not be engaged”. [34] Finally, in my view, a police officer’s authority to apprehend offenders engaged in criminal activity unrelated to a 911 call is notdisplaced by their duty to respond to such a call. Those two things coexist. [35] In

summary, how police officers respond to a 911 call and the duties and powers engaged by that response will be informed bythe circumstances they find themselves in. [36] In Mr. Crowe’s case, the trial judge found the police officers were justified in approaching Mr. Crowe’s vehicle to see if theoccupants knew anything about the 911 call. It was approximately 2:30 in the morning; House 195, where the 911 call had emanatedfrom, was dark; the doors were shut; and the house was quiet. The only sign of life was the tail lights of Mr. Crowe’s vehicle, visiblebehind a stand of trees adjacent to House 195.

In my view, the trial judge did not err by finding the police officers’ conduct in approachingMr. Crowe’s vehicle was a legitimate part of their investigation into the 911 call. Further, in the circumstances as described, it wasreasonable for the police officers to approach Mr. Crowe’s vehicle before knocking on the door of House 195. B. Did the trial judge err in finding that Mr. Crowe’s s. 8 Charter rights hadnot been breached? 1. Position of the parties [37] Mr.

Crowe contends that the police breached his s. 8 Charter rights pertaining to unreasonable search and seizure by enteringonto private property, where they proceeded to arrest him and conduct a search incidental to that arrest. It is his position that, because thepolice had no authority to enter the property, all of their subsequent actions were illegal. Mr. Crowe relies on this Court’s decision in Luxin support of his position. [38] The Crown submits that Mr. Crowe’s s. 8 Charter rights were not engaged, as the implied license to knock principle allowedthe police to enter onto the property.

It further submits that Mr. Crowe had no expectation of privacy with respect to the property where hewas situated. Thus, the police officers’ subsequent actions were lawful. The Crown contends Lux is distinguishable on its facts from Mr.Crowe’s situation. 2. Analysis [39] In R v Edwards, (SCC), [1996] 1 SCR 128 [Edwards], the Supreme Court of Canada addressed the allegedbreach of an accused’s s. 8 Charter rights where the search in issue related to a third party’s premises. At paragraph 45, Cory J. writing forthe majority, summarized the principles pertaining to s. 8 as follows: 1.

A claim for relief under s. 24(2) [of the Charter] can only be made by the person whose Charter rights have been infringed. See R vRahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8.

First, has the accused a reasonable expectation of privacy.Second, if he has such an expectation, was the search by the police, conducted reasonably. See Rawlings, supra. 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54,Wong, supra, at p. 62 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v Gomez, 16 F. 3d 254 (8th Cir. 1994) at p. 256. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whetherthe search was conducted in a reasonable manner. [40] In Edwards, there was a warrantless search of the apartment occupied by the appellant’s girlfriend.

During the search, thepolice found crack cocaine belonging to the appellant. The appellant asserted the search breached his s. 8 Charter rights. A majority of theSupreme Court held there was no breach as the appellant had no expectation of privacy with respect to the apartment because (

i) he wasjust a visitor there, (ii) he did not contribute to the rent or household expenses, and (iii) though he possessed a key to the apartment, helacked the authority to regulate access to the premises. [41] The onus rested on Mr. Crowe to establish a breach of his s. 8 Charter rights. To do so, he needed to establish an expectation ofprivacy: R v Arnault, 2019 SKCA 109 at para 36, [2020] 5 WWR 620. The evidence does not support such an expectation existed withrespect to the property in issue. [42] Mr. Crowe did not live at House 196; that house belonged to Mr. Crowe’s uncle. Mr.

Crowe testified that on the night inquestion he was going to his uncle’s house to ask for a ride home. Mr. Crowe was nothing more than an uninvited guest. There was noevidence that Mr. Crowe had any right to, or interest in, the property. [43] As Mr. Crowe had no reasonable expectation of privacy with respect to the property where he was located, the police did notbreach his s. 8 Charter rights when they approached him there. [44] Further, Mr. Crowe’s reliance on Lux is misplaced. The trial judge correctly found that case was distinguishable on its factsfrom Mr. Crowe’s situation.

In Lux, the police had executed a highway traffic stop pursuant to The Traffic Safety Act. The stop occurred ina hotel parking lot. This Court found the stop was not authorized by the Act. In this case, the police did not stop Mr.

Crowe’s vehicle; theymerely parked behind it. [45] Further, in R v Lotozky (2006), (ON CA), 210 CCC (3d) 509 (Ont CA), the Ontario Court of Appeal heldthat the act of the police merely entering a driveway to approach a motor vehicle, did not constitute a search or seizure for s. 8 purposes: [18] At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking onto a driveway, evenwith an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered asearch.

There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours fromwithin. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespasson to a driveway open to public view in the category of a search and seizure. [46] For all the reasons set out herein, I find the trial judge did not err in concluding that Mr. Crowe’s s. 8 Charter rights had notbeen breached. C. Did the trial judge err by failing to find that Mr. Crowe had beenarbitrarily detained contrary to s. 9 of the Charter? 1.

Position of the parties [47] Mr. Crowe contends that the police officers stopping their vehicle behind his vehicle amounted to an arbitrary detention of himfor investigative purposes, which the trial judge failed to consider. He suggests he was psychologically detained by the presence of thepolice. [48] The Crown argues there was no arbitrary detention. 2. Analysis [49] In my view, the Crown’s position is correct. The facts as found by the trial judge do not support Mr.

Crowe’s assertion. [50] What is meant by “detention” for Charter purposes was addressed by the Supreme Court of Canada at paragraph 28 of R vGrant, 2009 SCC 32, [2009] 2 SCR 353 [Grant]. The majority held that “a person is detained where he or she ‘submits or acquiesces inthe deprivation of liberty and reasonably believes that the choice to do otherwise does not exist’” (per Le Dain J. at 644 in R v Therens, (SCC), [1985] 1 SCR 613 [Therens]). This principle is consistent with the notion of choice that underlines our conceptionof liberty and, as such, shapes the

interpretation of ss. 9 and 10 of the Charter.

[51] In Grant, the Court recognized detention may also be psychological. Itt stated: [30] Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention hasbeen recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case ofa roadside breath sample.

The second is where there is no legal obligation to comply with a restrictive or coercive demand, but areasonable person in the subject's position would feel so obligated. … [52] The Court in Grant framed the question that arises when an allegation of psychological detention is made as [31] … whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to complywith the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of theparticular situation, including the conduct of the police.

As discussed in more detail below and summarized at para. 44, the focus must beon the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonableperson in the situation as it develops. [53] It is clear that Mr. Crowe was not detained prior to his formal arrest. Let me explain. [54] The police officers did not stop Mr. Crowe’s vehicle; they merely parked behind it. There is no suggestion in the evidence thatMr. Crowe’s vehicle could not be driven away. There was, therefore, no physical detention. The police officers’ purpose in approachingMr.

Crowe’s vehicle was to inquire about the 911 call. They did not suggest they were aware of any criminal offence having beencommitted, and they never claimed to have effected an investigative detention as described in R v Mann, 2004 SCC 52, [2004] 3 SCR 59;R v Bramley, 2009 SKCA 49, [2009] 7 WWR 226, or Simpson. Further, up until the point when he was arrested, Mr. Crowe had notidentified any police conduct, direction or demand that would have caused a reasonable person in his position to conclude he or she wasnot free to go. Following Mr. Crowe’s arrest, the breathalyzer demand was made. Mr.

Crowe does not suggest the police officers lackedreasonable and probable grounds to make that demand. On the contrary, he freely admits he was intoxicated at the time. In thecircumstances, Mr. Crowe’s s. 9 Charter rights were not breached, and the trial judge did not err in finding that he had not been arbitrarilydetained. D. Did the trial judge breach her duty to assist Mr. Crowe? 1. Appellant’ s position [55] Mr. Crowe, who was self-represented at trial, asserts the trial judge breached her duty to assist him.

In particular, he contendsshe failed to “provide the necessary assistance and guidance” to have the photographs he had taken at the scene put before the Court. It ishis position that those photographs exemplify that there are two distinct properties (House 195 and House 196) and that the police officershad entered onto the property associated with House 196 by driving across the property. [56] The Crown submits the trial judge provided adequate assistance to Mr. Crowe. It further contends that even if adequateassistance was not provided, Mr.

Crowe has not established that failure led to a miscarriage of justice. 2.

Analysis [57] In order to promote justice and ensure fairness of the adjudication process, trial judges are required to render some assistance tothose who are self-represented, so that the defences available to such individuals are presented with “full force and effect”: R v McGibbon(1988), (ON CA), 45 CCC (3d) 334 (Ont CA) at 347 [McGibbon]; R v Candido, 2015 SKCA 104 at para 13, 467 Sask R128; R v Bialski, 2018 SKCA 71 at para 65, [2018] 11 WWR 65; R v Phillips, 2003 ABCA 4 at para 25, [2003] 5 WWR 623 [Phillips].The goal of such assistance is to ensure the accused has a fair trial.

However, in providing assistance to a self-represented accused, thetrial judge must be careful to maintain neutrality and not enter the fray by presenting the accused’s case for him. Often, this can be adifficult balancing act. [58] The level of assistance required will vary depending on the charges involved, the facts, the complexity of the case, the defencesraised, and the accused’s personal circumstances, including his or her education, background and ability to communicate effectively.

Howfar a trial judge should go in assisting an accused is a matter of judicial discretion, depending upon the particular circumstances of eachcase: McGibbon at 347; Phillips at para 23, R v Harris, 2009 SKCA 96 at para 29, 331 Sask R 283; R v Cathcart, 2019 SKCA 90 at paras76–78, 380 CCC(3d) 357. [59] In Phillips, Fruman J.A. set out a number of principles to guide the exercise of this discretion: [24] The scope of a trial judge's assistance to an unrepresented accused "is limited to what is reasonable and cannot and does not extend[ . . . ] to provision of the kind of advice that counsel could be expected to provide": Rain, supra, at 179 (internal citations omitted).

Ajudge must exercise great care not to descend from the bench and become a spectre at the accused's counsel table, placing himself "in theimpossible position of being both advocate and impartial arbiter": R. v. Taubler (1987), 20 O.A.C. 64 (Ont. C.A.), at 71. For example,while a judge can assist an unrepresented accused by making general suggestions about possible avenues for cross-examination, he cannotactually conduct the type of cross-examination that would be expected from defence counsel: R. v. Turlon (1989), (ONCA), 49 C.C.C. (3d) 186 (Ont. C.A.) at 191; R. v.

S. (B.K.) (1998), (BC CA), 104 B.C.A.C. 149 (B.C. C.A.), at 158-159. Nor can a judge become a tactical advisor: R. v. K. (E.) (1999), 1999 BCCA 649 , 181 D.L.R. (4th) 210 (B.C. C.A.), at 213.A judge is therefore required to respect an unrepresented accused's strategy in conducting his defence. [25] In cases in which the trial judge's guidance is alleged to have been inadequate, trial fairness is determined by considering whetherthe lack of guidance compromised the unrepresented accused's ability to properly bring out his defence.

The actions of the trial judge mustbe carefully evaluated in the light of "the sophistication of the accused, the seriousness of the offence, the nature of the defence, and manyother factors individual to each case": R. v. Parton, [1994] B.C.J. No. 2098 (B.C. S.C.) at para. 33. "[T]he Court is obliged to take intoaccount the totality of the circumstances": R. v. Khanoukaev, [2001] O.J. No. 2031 (Ont. S.C.J.) at para. 28. Because it is often possible to

argue that a trial judge "could have or should have given the accused more detailed or helpful advice and assistance than was in fact given[ . . . ] the force of such an argument must depend on the facts and circumstances": Taubler, supra, at 73. [26] It is clear that when appellate courts consider lack of guidance claims, they must ascertain trial unfairness by a careful anddetailed examination of the complete trial record. See McGibbon, supra; Hardy (Q.B.), supra, aff'd on this point; R. v. King (1993), 61O.A.C. 228 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993] 3 S.C.R. vii (S.C.C.); R. v.

Kennie (1993), 1993 NSCA 106 ,121 N.S.R. (2d) 91 (N.S. C.A.); R. v. Jones (1994), (AB KB), 154 A.R. 118 (Alta. Q.B.); Parton, supra; R. v.Halnuck (1996), 1996 NSCA 148 , 107 C.C.C. (3d) 401 (N.S. C.A.), aff'd (1997), (SCC), 113 C.C.C. (3d)478 (S.C.C.); S. (B.K.), supra; Khanoukaev, supra; R. v. Innocente (2000), 2000 NSCA 74 , 185 N.S.R. (2d) 1 (N.S. C.A.); R. v.Tran (2001), (ON CA), 55 O.R. (3d) 161 (Ont. C.A.). [27] The record may, by itself, demonstrate that the accused's ability to defend his case was compromised by the action or inaction ofthe trial judge. But it may not.

Although the concept of trial fairness is flexible, there must be some air of reality to a potential defence.Therefore, an appellant may also apply to adduce additional evidence at the appeal stage to substantiate a claim that the trial was unfair.For example, an appellant might provide evidence to show that he would have done things differently, had he received particular advice:Criminal Code s. 683(1); Hardy (C.A.), supra at 363.

Because such evidence is not directed at a finding made at trial, but challenges thevalidity of the trial process, admission of the evidence is not dependent on meeting the fresh evidence requirements set out in R. v.Palmer (1979), (SCC), [1980] 1 S.C.R. 759 (S.C.C.): R. v. W. (W.) (1995), (ON CA), 100 C.C.C. (3d)225 at 232 (Ont. C.A.). See also United States v. Shulman, 2001 SCC 21 , [2001] 1 S.C.R. 616 (S.C.C.), at 636. (Emphasis added) [60] A careful examination of the trial record discloses that, in this case, the trial judge met the duty imposed on her to assist Mr.Crowe. In this regard, she: (

a) helped to arrange for Mr. Crowe’s witnesses to be subpoenaed and afforded him time to do that; (

b) ensured Mr. Crowe had received full disclosure from the Crown; (

c) explained in detail the trial process, including how Mr. Crowe’s Charter application would be dealt with by way of a voirdire; (

d) explained the Crown’s burden of proof with respect to establishing the offences that had allegedly occurred; (

e) explained what hearsay is; (

f) explained the difference between an open-ended question and a leading question; (

g) told Mr. Crowe if he needed time before cross-examining a Crown witness that could be arranged; (

h) explained the burden of proof on the Charter application rested with Mr. Crowe; (

i) explained the elements of the offences; (

j) told Mr. Crowe to “just rise” if he had any questions for her; and, (

k) adjourned the trial to give Mr. Crowe time to prepare his final submissions. [61] At no time did Mr. Crowe indicate that he did not understand any of the instructions or information given to him by the trialjudge. [62] Mr. Crowe’s specific complaint is that the trial judge failed to provide adequate assistance to him with respect to the admissionof several photographs he took following the alleged offence. The photographs included pictures at the scene of a vehicle similar to theone involved in the offence. Mr. Crowe sought to use those photographs in his cross-examination of Cst. Ramey.

It is useful to set out theexchange relating to the photographs. It can be found in the trial transcript at T46 line 40 to T48 line 27: THE ACCUSED: Oh. All right. I got -- I got some pictures here and being at night, to see somebody in a vehicle – THE COURT: And so are you going to present those pictures to the witness? THE ACCUSED: Yes. THE COURT: Okay. So, now, are those pictures that have been disclosed to you by the Crown? THE ACCUSED: No. THE COURT: So those are your own pictures? THE ACCUSED: These are my own pictures. THE COURT: Okay. So, Ms. Hottinger, I want you to have a look at those pictures, okay?

And did you take those pictures, Mr. Crowe? THE ACCUSED: Yes, I did. THE COURT: Okay. So --

THE ACCUSED: And when you take these pictures would you be able to see somebody getting out of a vehicle? THE COURT: No -- MS. HOTTINGER: I just want -- if you can show me -- THE COURT: -- you’re not asking her the question, Mr. Crowe. I just want you to -- before you present them to the witness, I just want you to -- MS. HOTTINGER: Did you take these? THE ACCUSED: Yes, I did. MS. HOTTINGER: And do you know when you took them? THE ACCUSED: I took them not too -- not too long ago, before the car got -- got crushed, because the guy told me he was going to crush the car. MS.

HOTTINGER: He’s -- it appears he’s going to say he took the photos and he can then testify -- THE COURT: Okay. MS. HOTTINGER: -- to what they are. THE COURT: Okay. MS. HOTTINGER: So I don’t see any problem, if he doesn’t -- THE COURT: So do you want to present that picture to Constable Ramey? If you want to approach Constable Ramey and -- you just want to go around this way, Mr. Crowe. You can just go to the back there and then if you could just show Constable Ramey the photo.

And you can ask him a question about the photo and then I’ll enter them just as an exhibit for -- and you can identify them later on, okay? THE COURT: It’ll be --A Okay. THE COURT: -- for identification purpose only and we’ll – [ 63 ] Mr. Crowe’s cross-examination of Cst. Ramey with respect to the photograph was directed to whether the constable had seen him in the driver’s seat of the vehicle.

There were no questions pertaining to the photographs exemplifying that there were two distinct properties (House 195 and House 196), or that the police officers had driven across the property as opposed to using the approach. [ 64 ] Later, in the trial transcript at T50 line 19 to T51 line 14, the following exchange occurred: THE COURT: And that’s the same -- okay. So, I mean, Mr. Crowe, you’re going to have to testify that you actually took that -- that photograph, but I can -- are you going to just tender one photograph? Are they -- THE ACCUSED: No, I’m -- actually, I got -- I got more pictures than that.

THE COURT: Okay. So -- or did you want to ask him -- so you showed him one picture there, okay? THE ACCUSED: M-hm. THE COURT: So are you going to show him all those pictures? THE ACCUSED: Not -- no. THE COURT: Okay. So I just want you to give me the one picture that you showed him, okay, because that’s the only one he gave evidence on. Okay. I’m just going to admit this as Exhibit D-1 for identification only, okay, because you'll have to testify that you actually took this photograph for it to be a full exhibit, okay? All right.

So I’ll just tender this Exhibit D -- or I’ll enter this as Exhibit D-1 for the purpose of identification, okay? EXHIBIT D-1 - FOR IDENTIFICATION - Photograph of Oldsmobile Intrigue (Voir Dire) THE COURT: Okay. THE ACCUSED: Are you going to keep that? THE COURT: Yes. Yeah, I’m going to keep that, Mr. Crowe. THE ACCUSED: I’ve got more pictures. So with all that done and said, I do -- do believe I don’t have no more questions for you right at this time. [ 65 ] Mr. Crowe’s position was that, because his car had tinted windows, Cst. Ramey could not have seen him getting out of the vehicle. [ 66 ] When Mr.

Crowe indicated that he was done questioning Cst. Ramey, the following exchange took place at T53 lines 6 to 17 of the trial transcript:

THE ACCUSED: But it is kind of -- well, in -- well, in that case, I could think -- don't -- I won’t have no more questions then. I’ll just have to bring in more evidence of -- of my pictures here and -- and I’ll deal with it later on. THE COURT: But this is the only opportunity to ask -- THE ACCUSED: Yes, I know that. THE COURT: -- Constable Ramey those questions. THE ACCUSED: I realize that. [ 67 ] Mr. Crowe also used the photograph entered as exhibit D-1 for identification in his cross-examination of Cst. Wachal in the trial transcript at T62 line 41 to T63 line 19: THE ACCUSED: Yeah.

The picture I showed there, that -- THE COURT: And so do you want to -- THE ACCUSED: Yes, I would. THE COURT: -- do you want to present this to her, Mr. Crowe? THE ACCUSED: Yeah. THE COURT: Okay. So, Mr. Crowe, you can just come and get that picture from me. Yeah, you -- just come this way, Mr. Crowe. This is Exhibit D-1. It’s just been tendered for the purpose of identification at this point in time. If you want to show that to the witness. THE ACCUSED: Is this the -- is this the vehicle here? A It looks similar to the vehicle that we saw that night, yes. Q Okay. [ 68 ] While Mr.

Crowe showed the photograph to Cst. Wachal, his only question with respect to it was whether the vehicle resembled the car that was involved in the commission of the offence. No other photographs were presented by Mr. Crowe to any of the other witnesses. Mr. Crowe himself, did not refer to the photographs during his testimony. [ 69 ] The evidence presented by both the Crown and Mr. Crowe on the voir dire became the evidence for the trial proper. [ 70 ] The issue of Mr.

Crowe’s photographs was not raised again; not even in his final submissions to the Court following the voir dire or the trial proper. [ 71 ] In my view, the trial judge did not breach her duty to assist Mr. Crowe; rather, she did everything in her power to ensure he understood the trial process and was able to advance his defence with full force and effect. Any failure with respect to the photographs rested with Mr.

Crowe who did not refer to them when presenting his evidence or in his submissions to the trial judge. [ 72 ] Further, I am confident, based on my review of the transcript and the alleged content of the photographs themselves, that no miscarriage of justice has occurred. From the transcript, it appears that Mr. Crowe wanted to use the photographs to show that the police officers could not see him, either sitting in the driver’s seat or leaving the vehicle. Before this Court, Mr.

Crowe expanded his reasons for wanting the photographs entered as evidence to include that they showed House 195 and 196 were separate properties and that the police officers had driven across the property to House 196 where Mr. Crowe was located. [ 73 ] Both Cst. Ramey and Cst. Wachal testified that they saw Mr. Crowe exit the vehicle from the driver’s seat. The trial judge accepted the constables’ evidence, as she was entitled to do. Mr. Crowe’s photograph of the vehicle does not contradict the police officers’ evidence on that point.

Further, the trial judge accepted that House 195 and House 196 were separate properties, and that the police officers were driving on a “trail” when they entered the property of House 196. At no time did the trial judge find that the police officers had used the “approach” to House 196. In other words, the trial judge’s findings of fact correlate with what Mr. Crowe felt the photographs would show. [ 74 ] The onus rests on Mr. Crowe to establish the breach of assistance he alleges, and that the breach led to a miscarriage of justice. In my view, he has failed to do so.

Accordingly, this ground of appeal must also fail. VI. CONCLUSION [ 75 ] Mr. Crowe’s appeal is dismissed. Mr. Crowe has been on judicial interim release pending the hearing of his appeal. I would direct Mr. Crowe to present himself to a police station either at Punnichy or Melville or the correctional institution in Regina, no later than 4:00 p.m. on the third day after the release of this judgment to his counsel. “Ryan-Froslie J.A.” Ryan-Froslie J.A.

I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.