The Defence Toolkit – May 9, 2020

This week’s top three summaries: R v Thompson, 2020 ONCA 264, R v JP, 2020 SKCA 52, and R v Kahnapace, 2020 SKPC 9.

R v Thompson (ONCA)

[April 23, 2020] Detention - Police Cars Boxing in Vehicle - Racialized Background - Charter s.9 - Reasonable Grounds - 10(b) Delay in Provision of Rights (it's not "as soon as practicable" Peel Regional Police) - 2020 ONCA 264 [Reasons by Jamal J.A. with Strathy C.J.O., Harvison Young J.A. concurring]

AUTHOR’S NOTE: The ONCA does away with unrealistic denials of Charter remedies through a refusal of courts (and police) to acknowledge psychological detention.   Herein, boxing in a vehicle was sufficient (despite the theoretical possibility of walking away from one's car). Moreover s.10(b) really does establish a right to counsel "without delay."  This means police have to read out the right to counsel, even if it interrupts them rifling though the centre console in a search for contraband. 

Also, it appears that problems in Peel Region with Charter compliance run deep.  The Ontario Court of Appeal referenced case law to establish a systemic violation of s.10(b) rights.  This means any 10(b) violation in Peel Region is even more egregious and tends towards exclusion on 24(2). 

Overview

[1] The appellant, a 31-year-old black man, was sitting in his parked car at a Brampton shopping plaza at night when he was arrested for being in possession of the remains of a partially smoked marijuana cigarette or “roach”. After arresting the appellant, the police searched his car incident to arrest and found cocaine, marijuana, a weighing scale, and a large amount of cash.

[2] Two police officers had driven to this shopping plaza after receiving an anonymous tip about drug dealing from a car, and found the appellant’s car parked with its engine running. Although the police had no basis to believe the car’s occupants were engaged in criminal activity, they parked two police cruisers directly behind it — boxing in the appellant so he could not drive away.

[3] The police then approached the car, with one officer on either side. One officer smelled burnt marijuana from the open driver-side window; the other officer directed the passenger to roll down her window, smelled burnt marijuana, and then spotted a marijuana roach on the centre console. The officers arrested the two occupants for possession of the marijuana roach, searched the car incident to arrest, and discovered the cash and other drugs. About 21 minutes after having parked behind the appellant, the police advised him of his right to counsel.

[5] For the reasons below, I would allow the appeal. Unlike the trial judge, I conclude that the appellant was arbitrarily detained contrary to s. 9 of the Charter the moment the first police cruiser parked directly behind his car, because at that point the appellant could no longer choose to leave by driving away unless and until the police decided otherwise. This arbitrary detention triggered the appellant’s right to counsel. Like the trial judge, I conclude that because of a systemic problem with Peel Regional Police in delaying the right to counsel, this was a serious breach of s. 10(b). I do not find it necessary to address the alleged breach of s. 8 of the Charter because, based on the combined effect of the ss. 9 and 10(b) breaches, I conclude that the admission of this evidence would bring the administration of justice into disrepute. I would therefore exclude the evidence and acquit the appellant.

Pertinent Facts

[7] Officer King received an anonymous tip that drug dealing was taking place behind a shopping plaza in Brampton. The tip, which was vague, alleged that women were going to and from a vehicle.

[8] On April 19, 2016, at 12:14 a.m., while on patrol, Officer King shared the tip with Officer Wong, who was also on patrol in a separate car. Both officers were in uniform and in marked police cruisers.

[9] At 12:23 a.m., both officers arrived at the plaza and drove to the back. A Cadillac was parked in a parking spot facing the curb. Officer Wong could tell that the car was occupied because he saw movement inside. Officer King could not discern this because the car’s windows were tinted, but she knew that the car was running because she saw exhaust fumes. She thought it was unusual for a car to be parked with its engine running at this time of night.

[10] At 12:23 a.m., Officer King parked her police cruiser “directly behind” the Cadillac, which she estimated was about 11 feet away. She acknowledged that the way she parked led to “blocking the Cadillac from exiting”. Officer Wong then parked his car directly behind Officer King’s car. He acknowledged that “[b]oth [police] vehicles were essentially preventing the Cadillac from reversing should it choose to do so.” Both officers conceded that at this point they had no basis to believe that anyone in the car had committed a criminal offence.

[11] Officer King got out of her car and approached the Cadillac on the passenger’s side, while Officer Wong got out of his car and approached on the driver’s side. Officer King tapped on the passenger-side window. When the female passenger rolled down the window, Officer King smelled burnt marijuana. She shone her flashlight into the car and within a minute saw the stub of a smoked marijuana cigarette in the centre console...

[13] Officer Wong asked both occupants for identification and asked the appellant for vehicle ownership documents. The appellant gave Officer Wong his Ontario driver’s licence. The female passenger orally identified herself. Officer King then told the appellant and the passenger that they were both under arrest for possession of a controlled substance — the marijuana roach.

[14] At about 12:26 a.m., Officer Wong told the appellant to get out of his car and took him to the rear of it. He then spent about five minutes doing a pat-down search of the appellant. At about 12:33 a.m., he put the appellant in Officer King’s car and went to help Officer King by taking control of the female passenger.

[15] Officer King then searched the appellant’s car. She found some loose cash and a scale in the centre console. She also found a backpack in the back seat and searched it – finding 29 grams of cocaine, 5 grams of marijuana, 8 grams of hash oil, 12 grams of hash, and about $18,000 in cash.

[17] At 12:44 a.m., Officer King told the appellant that he was charged with possession for the purpose of trafficking, cautioned him, and advised him of his right to counsel.

The Voir Dire Ruling

[19] The trial judge rejected the appellant’s argument that he was detained when Officer King parked her police cruiser behind his car. He concluded that the appellant was detained only when he was arrested...

[21] The trial judge also found that the police did not breach the appellant’s s. 8 rights by using a flashlight to identify the marijuana roach or in searching his car incident to arrest. They could use flashlights for their own and the occupants’ safety and to warn the occupants that they were approaching. And because the appellant’s arrest was lawful, the police could search the appellant’s car and backpack incident to his arrest.

Detention

[28] An inquiry under s. 9 involves two questions. First, was the claimant detained? Second, was any detention arbitrary? Both questions are reviewed on appeal under a correctness standard: R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 29.

[29] As with other Charter rights, the Supreme Court has adopted a generous and purposive interpretation of s. 9, one that seeks to balance society’s interest in effective policing with robust protection for constitutional rights: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 15-18, 23.

[30] The purpose of s. 9, broadly stated, is to protect individual liberty against unjustified state interference: Grant, at para. 20. This liberty includes an individual’s right to make an informed choice about whether to interact with the police or to simply walk away. If the police have removed an individual’s choice to leave, the individual is detained: Grant, at paras. 20-21. As noted by then-Professor David Paciocco: “[w]hat is given protection, essentially, is the right to choose whether to stay or leave when interacting with state agents”: David M. Paciocco, “What to Mention About Detention: How to Use Purpose to Understand and Apply Detention-Based Charter Rights” (2010) 89 Can. Bar Rev. 65, at p. 71.

[32] Yet not every trivial or insignificant interference with individual liberty attracts Charter scrutiny under s. 9. Such a broad interpretation would “trivialize the applicable Charter rights and overshoot their purpose”: Grant, at para. 26....

[33]      Instead, a “detention” arises only where the police have suspended an individual’s liberty interest through “a significant physical or psychological restraint”: Grant, at para. 44.

[34] Physical restraint has been called “the paradigm form of detention”, with arrest being the “paradigm form of physical restraint”: Paciocco, at p. 75.

[35] But a detention can also arise from psychological restraint. This is because police conduct “short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter”: Suberu, at para. 21.

[36] A psychological detention can arise either if: (1) an individual is legally required to comply with a police direction or demand (as with a demand for a roadside breath sample); or (2) absent actual legal compulsion, “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31; Suberu, at para. 22; and Le, at para. 25. This involves “an objective determination, made in light of the circumstances of an encounter as a whole”: Suberu, at para. 22.

Application

[42] The Supreme Court’s recent decision in Le, which was released after the trial judge’s decision here, confirms the objective nature of the inquiry. The majority warned that “[u]ndue focus on subjective perceptions detracts from the underlying rationales for adopting an objective test”, of which it identified at least three: (1) to allow the police to know when a detention occurs so that they can discharge their attendant Charter obligations and afford the individual its added protections; (2) to maintain the rule of law, as all claims will be subjected to the same standard; and (3) to recognize “the reality that some individuals will be incapable of forming subjective perceptions when interacting with the police”: Le, at para. 115.

[43] Given these strong reasons for an objective approach, the majority in Le warned that the focus must not be on “what was in the accused’s mind”, but on “how the police behaved” and “how such behaviour would be reasonably perceived”. This avoids putting “the onus on the claimant to gauge correctly when they are detained and when they are not”: Le, at para. 116.

[44] In Le itself, the claimant had testified that he did not believe that he was detained by the police at a particular point. The majority placed little stock in the claimant’s belief because it concluded that he was already detained based on an objective evaluation of the circumstances: at para. 116.

[46] Here, the trial judge did exactly that. He conducted a largely subjective inquiry into the appellant’s state of mind during the encounter, rather than an objective inquiry about whether the police conduct would cause a reasonable person in the appellant’s circumstances to conclude that he was free to leave. I say this for two reasons.

[47] First, in finding that the appellant was not detained, the trial judge highlighted that he was not subjectively aware that the police had parked behind him until they shone a flashlight into his car....

[48] The trial judge focussed on what the appellant subjectively perceived about the police presence, rather than what a reasonable person in his circumstances would conclude from the nature of the police interaction. Whether the appellant was detained, triggering the police’s Charter obligations, should not turn on whether the appellant saw the police in his rear-view mirror as they boxed him in (a subjective approach), but on whether a reasonable person in his circumstances would conclude that this police conduct effected a detention (an objective approach).

[49] Second, the trial judge inferred that the appellant had no subjective intention to drive away when the police arrived...

[50] The correct question, however, was not whether the appellant intended to drive away, but whether objectively the police had taken away his choice to do so.

[51] This case underscores each of the three reasons supporting an objective approach: (1) it allows the police to know when the detention occurs, based on their own conduct rather than the subjective perceptions of the accused; (2) it maintains the rule of law, as all claims are subjected to the same standard, avoiding a different result if, for example, one accused saw the police in his rearview mirror as they obstructed his car, but another did not; and (3) it recognizes that some individuals are incapable of forming subjective perceptions, like the appellant here, who did not appear to immediately perceive when the police obstructed his car.

[52] In view of the error of law in applying a largely subjective analysis, this court must apply an objective approach based on the factors identified in Grant, at para. 44: (i) the circumstances giving rise to the encounter; (ii) the nature of the police conduct; and (iii) the characteristics and circumstances of the appellant.

(i) The circumstances giving rise to the encounter

[54] But after that, a reasonable person would know only that the police showed up late at night and for no apparent reason obstructed the appellant’s car. Regardless of the officers’ intentions as they blocked the appellant, a reasonable person would not perceive this action as “assisting in meeting needs or maintaining basic order”: Grant, at para. 40; Le, at para. 42.

(ii) The nature of the police conduct

[55] The police conduct was authoritative from the outset. By obstructing the movement of the appellant’s car, the police would reasonably be perceived as sending the message that the appellant was not free to leave until the police decided otherwise.

[56] This conclusion that the police conduct was authoritative is only reinforced by considering other circumstances of the encounter: the police were uniformed and in marked police cars; they placed themselves on either side of the car to question the occupants; they looked into the car with flashlights and directed the passenger to roll down her window; and they directed the occupants to produce identification and vehicle ownership documents.

[57] ...As in Grant, the police effectively took control of the appellant’s car and its occupants, first by obstructing the appellant’s car, and then by approaching the car and seeking information from the appellant and the passenger: see Grant, at para. 49.

[58] While the police did not engage in physical contact with the appellant before his arrest, their physical proximity in blocking his car would have created “an atmosphere that would lead a reasonable person to conclude that the police were taking control of the situation and that it was impossible to leave”: Le, at para. 50.

[59] ....The brevity of the encounter “is simply one consideration among many”: Le, at para. 65. A psychological detention can occur at the start of an interaction or within seconds: see Le, at para. 66; Grant, at para. 42. That occurred here, as soon as the police parked behind the appellant. In my view, most reasonable people would find it intimidating to have their car’s movement obstructed by two police cruisers.

[61] Finally, I reject the Crown’s argument that the appellant was not detained, even though his car was obstructed, because he always remained free to “walk away” – by literally exiting his car and leaving on foot. In my view, a reasonable person in the appellant’s position, whose car was deliberately obstructed by a police cruiser, would conclude that they were not free to leave, on foot or otherwise.

[62] But even if the appellant was free to leave on foot, as the Crown asserts, this confirms that his freedom of movement was significantly constrained. If the individual is a motorist or a driver, their freedom of movement includes the freedom to leave by driving away: see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 30-31 (referring to the rights of “a driver” and “every motorist”); Suberu, at para. 33 (accused not detained because the police “made no move to obstruct [his] movement” as he sat in his van). Here, the appellant’s freedom to drive away was significantly constrained, which suggests that he was detained.

(iii) The characteristics and circumstances of the appellant

[63] The trial judge noted that “Mr. Thompson is not a young person”, but more to the point he was a black man sitting in his car at night in Brampton when his car was obstructed without apparent reason by two marked police cruisers....As in Le, at para. 97, I conclude that “[t]he documented history of relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the [appellant]”. Here, the appellant’s race would contribute to a reasonable person’s perception in all the circumstances that he was detained.

Was the Detention Arbitrary?

[65] A detention without at least reasonable suspicion is unlawful and therefore arbitrary: Grant, at para. 55. The trial judge accepted that the “generic” anonymous tip the police received “did not provide the police with any right to detain” the appellant. Nor did the police have any other basis to do so. The Crown does not suggest otherwise.

[68] Here, the trial judge found that the police did not inform the appellant of his right to counsel immediately. The relevant timeline is as follows:

•             12:23 a.m. — The police arrive and park behind the appellant’s car.
•             12:26 a.m. — The police arrest the appellant.
•             12:26 a.m. to 12:33 a.m. — The police conduct a pat-down search of the appellant and place him in the back of a police cruiser.
•             12:33 a.m. to 12:41 a.m. — The police search the appellant’s car incident to arrest.
•             12:44 a.m. — The police inform the appellant of his right to counsel.

[71] I agree that the appellant’s s. 10(b) rights were triggered when he was arbitrarily detained rather than when he was arrested....There was no reason why the police could not have advised the appellant of his right to counsel at the latest at 12:33 a.m., before they searched his car. Instead they waited another 11 minutes. As the trial judge found, this conduct breached s. 10(b).

Issue 3: Should the evidence have been excluded under s. 24(2) of the Charter?

[84] The courts should dissociate themselves from evidence obtained through a negligent breach of the Charter: Le, at para. 143; see also Grant, at para. 75.

[85] Moreover, a systemic problem or pattern of Charter-infringing conduct is an aggravating factor that supports exclusion: Grant, at para. 75; Harrison, at para. 25.

[87] With respect to the breach of s. 9, I conclude that the police conduct in arbitrarily detaining the appellant was moderately serious in that it reflected negligence rather than wilful or deliberate conduct. When Officer King was cross-examined on why she had parked directly behind the Cadillac and blocked its exit, she simply said: “[i]t was just where I chose to stop my vehicle.” The police appear to have been unaware that their actions constituted or might constitute a detention.

[89] More than a decade after Grant, the police must appreciate that, absent exigent circumstances or other appropriate justification, they cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions. To do so without a statutory or common law power would undercut the individual’s fundamental right to choose whether to engage with the police or to leave.

[90] The breach of s. 10(b) was, however, more serious....

[91] ....She said that at the preliminary inquiry she may have mixed up the word “possible” and “practicable”, but she also testified that, to her, “as soon as possible” means “if it’s convenient for [her] to give rights to counsel and practical”. Officer Wong testified that his understanding was that the appellant had to be informed of his right to counsel “as soon as practicable”. He said that this had been his practice for the two years that he had been a police officer and was still his practice. He said this is what he was taught at his initial police training and what he is taught as part of his ongoing training. But “as soon as practicable” is necessarily a laxer standard than “as soon as possible” or “immediately”.

[92] Worse still, the breach of s. 10(b) is rooted in a systemic disregard by the Peel Regional Police for their constitutional obligations. The trial judge himself found the breach of s. 10(b) to be “fairly serious” and highlighted a “chronic problem” with the Peel Regional Police and its officers believing that the right to counsel need be given only “as soon as practicable”. In support of this observation he referred to the comments of Schreck J. in R. v. Sandhu, 2017 ONCJ 226, 378 C.R.R. (2d) 306, at paras. 8-11. It is worth quoting Schreck J.’s comments at length given the serious systemic concerns he highlighted, at paras. 9-11:

… Suberu was decided over seven years ago. As the Court noted, the concept of immediacy leaves little room for misunderstanding. Despite this, the police in Peel Region have repeatedly demonstrated what is at best a failure to grasp the dictates of the judgment, or, at worst, an unwillingness to follow it. See, for example, R. v. Athwal, 2017 ONSC [9]6 at para. 230; R. v. Kraus, 2015 ONSC 2769 at paras. 36-37; R. v. Moulton, 2015 ONSC 1047 at paras. 86-89; R. v. Grewal,2015 ONCJ 691 at paras. 41-44; R. v. Medeiros, 2015 ONCJ 707 at para. 30; R. v. Singh, 2015 ONCJ 643 at para. 39; R. v. Ahmad, 2015, ONCJ 620 at paras. 15-19; R. v. Lam, 2014 ONSC 3538 at para. 230; R. v. Soomal, 2014 ONCJ 220 at para. 39; R. v. Ramocan, 2014 ONCJ 692 at para. 66; R. v. Volkov, [2014] O.J. No. 5346 (C.J.) at para. 25; R. v. Thomson, 2013 ONSC 1527 at paras. 137-140; R. v. Godday, 2013 ONSC 1298 at para. 86; R. v. Thompson, [2013] O.J. No. 3570 (C.J.) at para. 5; R. v. Dinh, 2011 ONSC 5644 at para. 48; R. v. Watson, 2010 ONSC 448 at para. 109.

Cst. Darcy is not the only Peel officer who seems to believe that he is obliged to advise people he has arrested of their right to counsel “as soon as practicable”: Kraus at para. 36; Medeiros at para. 12. The term “as soon as practicable” is often used in the drinking and driving context as it appears in s. 258(1)(c)(ii) of the Criminal Code in relation to when breath samples should be taken. In that context, it means “within a reasonably prompt time in the circumstances” and does not mean as soon as possible: R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12. It clearly does not mean “immediately”. Rather, it denotes a degree of flexibility that is simply not present in the s. 10(b) context.

...

These concerns, expressed by a very experienced and well-respected jurist in this jurisdiction, apparently remain unheeded as in this case, an officer with almost 10 years of experience still does not appreciate that the right to counsel has to be provided immediately. This appears to be a systemic problem, which renders the breach more serious: R. v. Harrison, 2009 SCC 34 at para. 25.

[94] To be clear, I do not wish to single out the individual officers here for blame. Neither of them appears to have intentionally breached s. 10(b) and both were relatively inexperienced officers who appear to have been following their. training. The issue, rather, is institutional and systemic. It is, as the trial judge noted, a “chronic problem” with the Peel Regional Police force breaching their clear and well-settled constitutional obligations under s. 10(b).

[96] Here, the infringement does reflect a systemic breach of settled rules under s. 10(b). This serves as an aggravating factor supporting exclusion. When coupled with the s. 9 breach, I conclude that this case involved serious Charter violations.

(ii) Impact of the breach on the appellant’s Charter-protected interests

[98] Here, the appellant’s interest protected by s. 9 of the Charter was his liberty from unjustified state interference — his right, absent compelling state justification, “to live his life free of police intrusion”, and “to make decisions, including decisions of fundamental importance, free from state interference”: Le, at paras. 152-154; Grant, at paras. 19-20; see also Harrison, at para. 31.

[99] The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21; Wong, at para. 77. This helps ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: Suberu, at para. 40; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25; and Wong, at para. 77.

[101] But the impact of the violation of s. 9 — which the trial judge did not consider because he found no such violation — was far from minimal. Being obstructed by a police car without justification curtails a person’s rightful expectation of liberty and therefore intrinsically injures s. 9 interests. In addition, although the detention was brief before the appellant was arrested, the detention did not merely restrict but eliminated any realistic choice the appellant might have had about whether to leave. This impact on his s. 9 interests is heightened by the lack of any reasonable basis for the police conduct in detaining him. As the Supreme Court has emphasized, even trivial or fleeting detentions “must be weighed against the absence of any reasonable basis for justification”: Mann, at para. 56 (emphasis in original); Le, at para. 155.

[102] As a result, I conclude that the impact on the appellant’s s. 9 interests was significant and favours a finding that the admission of the evidence would bring the administration of justice into disrepute.

Balancing

[107] If, however, the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, at para. 142; Paterson, at para. 56; and McSweeney, at para. 81.

[108] Here, both the first and second lines of inquiry pull towards exclusion, though not with identical force. This case involves serious Charterbreaches coupled with a somewhat weaker but still significant impact on the appellant’s Charter-protected interests. Cumulatively, the first two inquiries make a strong case for exclusion, one that in my view outweighs society’s interest in the adjudication of the case on the merits.

R v JP (SKCA) 

[April 30, 2020] Sentencing - Mitigation through FASD and Gladue - 2020 SKCA 52 [Reasons by Leurer with Schwann, and Kalmakoff JJ.A. concurring]

AUTHOR’S NOTE: In the above decision, the SKCA recognises the FASD and Gladue factors should have a significant mitigating impact on sentence.  This is a recognition that both of those factors reduce the moral culpability of the offender.  This recognition must affect the sentence by reducing it, even if it is a prison sentence. 

Overview

[1] This appeal concerns the proper sentencing of an accused who suffers from Fetal Alcohol Spectrum Disorder [FASD] and whose personal circumstances call for application of the principles set out in R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 [Gladue].

[2] After trial before a Court of Queen’s Bench judge, J.P. was convicted of being a party to two armed robberies (R v J.P., 2016 SKQB 392 [Conviction Decision]). J.P. also pleaded guilty to several other offences. For all of these crimes, J.P. was sentenced to 17 years’ imprisonment, which was reduced by the sentencing judge to a global sentence of ten years less credit for time spent on remand (R v J.P., 2018 SKQB 96 [Sentencing Decision]).

[3] J.P. appeals his sentence only, having previously abandoned his conviction appeal. I would grant J.P. leave to appeal and allow his appeal from sentence. In the exercise of the power given to this Court pursuant to s. 687(1)(a) of the Criminal Code, I would vary J.P.’s sentence for the two robberies, with the result that he be ordered to serve concurrent sentences of five years in relation to each of these two crimes. I would also vary his global sentence to direct that he serve a total of eight years less credit for time spent on remand. My reasons follow.

Facts of the Offences

[4] J.P. was found to have orchestrated two convenience store robberies in late August 2015. Both robberies were carried out by J.P.’s 14-year old nephew. The circumstances of these offences are summarized in the Sentencing Decision and appear in even greater detail in the Conviction Decision.

[5] The first robbery occurred on August 22, 2015. In the late afternoon of that day, J.P. entered a convenience store to scout it out. Shortly after J.P. left the store without making any purchase, his nephew entered it brandishing a crowbar. The nephew demanded cash and cigarettes from the store clerk, who handed over a small amount of cash and several packs of cigarettes. During the robbery, the nephew damaged a cash terminal screen with the crowbar. After taking the cash and cigarettes, the nephew fled the store and left the scene.

[6] The second robbery occurred six days later on the evening of August 28, 2015. J.P.’s nephew entered a different convenience store wearing a bandana to cover his face. He held a black folding knife in one hand and a white garbage bag in the other. The nephew ran around customers who were standing at the counter and went into the service counter area. There, he held up the knife and demanded cash and cigarettes. The items were placed in the bag the nephew was carrying. Unknown to the nephew, one of the cigarette packages contained a disguised GPS tracking device. The police were alerted and able to track the stolen property to a home where the nephew and J.P. were arrested.

Offender's Background

[10] J.P. is of aboriginal ancestry. A Gladue report was prepared for the purposes of assisting the judge in his sentencing of J.P. The report recounted the history of J.P.’s family and community. His family included residential school survivors on both his maternal and paternal sides. His mother was raised by her grandparents (J.P.’s great-grandparents), whose relationship was characterized by alcohol abuse and domestic violence. His father was an alcoholic and a drug addict who was also raised by abusive parents. The extreme poverty, minimal educational opportunities, and overcrowded and deficient housing experienced by J.P.’s parents cannot be captured in a few words, but the outcome was a life of family dysfunction, substance and alcohol abuse, and violence.

[11] J.P.’s mother was 15 years old when he was born. J.P.’s mother did not know she was pregnant until her seventh month of pregnancy. During this time, according to the Gladue report, “she was drinking, doing drugs and inhaling solvents”. J.P.’s parents never lived together. His father was incarcerated much of the time and was absent from J.P.’s life.

[12] J.P.’s parents were incapable of caring for him, so he was raised in his early years by his maternal grandmother in the Lestock and Muskowekwan First Nation area. This household “was marked with alcoholism, violence and abuse, including sexual abuse” (Sentencing Decision at para 21). J.P. gave conflicting reports as to whether he was sexually abused as a child.

[13] When J.P. was 11 years old, he relocated to Weyburn to live with his mother and her partner. While in school in Weyburn, J.P. “was exposed to blatant acts of racism, acts that led to isolation and school fights” (at para 22). J.P. left school entirely before completing grade 10. J.P. did, however, receive a “different sort of education” from his stepfather. The “education began with petty thefts and eventually evolved to offences of break, enter and theft”, with J.P. being “obliged to provide a portion of the criminal proceeds to his stepfather” (at para 23). J.P. was also introduced to alcohol and drugs by his stepfather. By the time he was 16 years old, J.P. had become a regular user of drugs such as Ritalin and Talwin. The judge accepted, however, that by the time of sentencing, J.P. had not used illicit drugs for several years.

[14] J.P.’s first conviction for break and enter was on May 13, 1991, when he was just 13 years old. The Gladue report notes that when J.P. was 14, “the stealing got worse”, as did his criminal conduct. J.P. received a five-year penitentiary sentence when he was 18 for a series of robberies. J.P. spent much of the next 20 years in custody.

[15] There was almost 16 months between the Conviction Decision and Sentencing Decision. Much of this delay occurred because, in the course of preparing the Gladue report, it was identified that J.P. may suffer from FASD. A dispute arose as to who should pay for an assessment to determine this question. Eventually, an assessment was carried out in two parts. The first part was conducted by a psychologist, Dr. Lisa Lejbak. It involved an interview with both J.P. and his mother and the administration of various neuropsychological tests on him. The second part was an assessment by Dr. Delores Logan, a physician with specific training in FASD. The Sentencing Decision contains a detailed summary of the reports of both doctors. I will return to these two reports later in my reasons. For the moment, I would observe that Dr. Lejbak described J.P.’s intellectual ability as “extremely low overall (1st percentile)” and diagnosed J.P. with an intellectual disability that would stand “regardless of whether or not [he] is diagnosed with Fetal Alcohol Spectrum Disorder by a medical doctor”. Dr. Logan confirmed the diagnosis of FASD, which she described as the “primary cause” of J.P.’s “difficulties”.

Did the judge err in principle by failing to determine J.P.’s level of culpability in light of his FASD and other Gladue considerations?

[27] The principle of proportionality is central to J.P.’s arguments. Although decided after oral arguments were made in this case, the summary of this fundamental principle and the secondary principle of parity that is offered in Friesen (J.) aligns with the submissions J.P. made in this case:

[30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, 1966 CanLII 222 (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code.

[31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2(b) of the Criminal Code.

[32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 78-79).

[33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

[31] My earlier review of the Sentencing Decision was intended to demonstrate that the judge was well aware of J.P.’s FASD as well as his other personal circumstances that invoked Gladue. Because of my ultimate conclusion that the judge erred in principle by failing to account for these circumstances in the sentence he imposed, it is necessary for me to expand on my review of the Sentencing Decision.

[32] The trial judge examined the impact of the FASD diagnosis and other Gladue considerations separately. In connection with the latter, the judge began his analysis of the evidence by accepting that J.P.’s difficult background had contributed to his circumstances and actions:

[87] With respect to the Gladue considerations, other than the diagnosis of FASD which I will address separately, I am satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province. These systemic and background factors are largely intergenerational. While few of J.P.’s ancestors attended residential schools, most of them have demonstrated traits and behaviours that explain the overrepresentation of indigenous people in our correction facilities and penitentiaries. It is likely that these systemic and background factors have a bearing on J.P.’s lifestyle and attitude.

(Emphasis added)

[33] However, the judge then immediately expressed dissatisfaction with the extent to which the evidence, which he accepted, could be helpful to him in crafting an appropriate sentence. He followed paragraph 87, which I have just quoted, with the following discussion:

[88] Despite the impact of systemic and background factors on J.P.’s lifestyle and attitude, the extent to which they bear on his blameworthiness for these offences is much more difficult to assess. The court received little analysis, either in [the Gladuereport] or in defence counsel’s submissions, that would assist me in assessing the impact of systemic and background factors against the backdrop of the purpose, objectives and other principles of sentencing that I am obliged to consider. Rather, and as is all too common in the presentation of such factors, the evidence is presented in a discrete way, and without any guidance as to the manner in which that evidence may impact other sentencing imperatives.

[89] Using the present case as an illustration, the relevant jurisprudence, for the sentencing of robbery offenders, strongly suggests that the court must emphasize the objectives of denunciation, deterrence and public protection. It follows, in my view, that the court should expect some analysis, either from counsel or the Gladue[report] writer, on the extent to which the identified systemic and background factors may, or may not, influence the emphasis of these objectives. In my view, evidence and analysis that addresses these kinds of considerations can be of considerable assistance to the court.

[34] I would say, respectfully, that the judge was expecting more than he should have from the author of the Gladue report. The comments of the Alberta Court of Appeal in R v Okimaw, 2016 ABCA 246 at para 76, 340 CCC (3d) 225 [Okimaw], touch on this:

[66] First, it is not the role of the Gladue reporter to explain such an “impact on moral blameworthiness”. Such reports are to provide the “necessary context for understanding and evaluating the case-specific information”, but it remains the sentencing judge’s responsibility to duly consider that information “in fulfilling his duties under s. 718.2(e) of the Criminal Code” in order to arrive at a sentence that is truly proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at paras 60, 74-75. This duty can never be delegated by a sentencing court, which must itself carry out an “individualized assessment” of Gladue factors as it relates to blameworthiness. …

[35] In connection with the FASD diagnosis, the judge went on and reasoned as follows:

[92] With respect to J.P.’s diagnosis of FASD, I have no doubt as to the accuracy of the diagnosis. The assessment provided by Dr. Lejbak and Dr. Logan was thorough and complete, including recommendations for intervention. That said, I find it significant that these recommendations emphasized management of J.P.’s condition, as opposed to treatment. As I interpret the recommendations, neither assessor is able to offer any optimism in J.P.’s prognosis or his prospects for rehabilitation. This suggests that more emphasis should be given to the sentencing objective of public protection and perhaps less to the more typical objectives of denunciation and deterrence. This may be what Dr. Logan was describing in [her] reference to a “harm reduction model”.

[36] I understand the judge to be expressing the conclusion that, notwithstanding that he was “satisfied that there are systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province” (at para 87), before he could consider those factors for the purposes of sentencing, they must be shown in some further or additional way to “impact” (at para 88) or “influence” the “objectives of denunciation, deterrence and public protection” (at para 89). Similarly, in connection with the FASD diagnosis, which he accepted, the judge stated that, because of the lack of optimism with respect to J.P.’s “prospects for rehabilitation”, “more emphasis should be given to the sentencing objective of public protection and perhaps less to the more typical objectives of denunciation and deterrence” (at para 92).

[37] Although to this point in the Sentencing Decision the judge considered separately the FASD diagnosis and the other Gladue considerations, he brought them together under the heading “An Appropriate Sentence” and expressed the following conclusion:

[93] In fashioning an appropriate sentence, I am not persuaded that the systemic and background factors, presented in the Gladue analysis, reduce the emphasis that must be placed on the sentencing objective of public protection, and, perhaps to a lesser extent, on the objectives of denunciation and deterrence. More particularly, I am satisfied that this is not a case for a disposition other than a penitentiary sentence.

[38] The judge did not otherwise determine or consider the extent to which J.P.’s level of reduced culpability arising from his FASD and other Gladue considerations should weigh in determining a fit sentence. In the context of the paragraphs that preceded it, I can interpret paragraph 93 in no other way than as a conclusion on the part of the judge not to permit the “systemic and background factors” that he accepted “contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province” (at para 87) as well as the diagnosis of FASD that he accepted, to provide a basis to mitigate J.P.’s sentence.

[43] I will examine these two propositions separately. Before I do so, however, I would preface my comments with the observation that I do not see how it is possible to disentangle J.P.’s FASD from the other Gladue considerations at play in this case. In this regard, the judge observed that FASD often presents as a Gladue factor because the “condition appears much more frequently in Canada’s indigenous population” (at para 78). While this statement may be true, in this case it creates an unnecessary gloss over the direct connection that existed between J.P.’s FASD and other Gladue considerations. The judge’s approach of considering the two matters separately may be contrasted with that taken in cases which have drawn a more direct connection between maternal consumption of alcohol and systemic and background Gladue issues. See, for example: R v Drysdale, 2016 SKQB 312 at para 62, [2017] 2 CNLR 198 [Drysdale]; R v Charlie, 2015 YKCA 3 at para 32, 320 CCC (3d) 479 [Charlie CA], affirming 2014 YKTC 17 [Charlie TC]; and Okimaw at para 76.

[45] In this overall context, J.P.’s FASD presents as a Gladue factor not simply because of disproportionate FASD rates among Aboriginal communities, but because it is, in his life, an intergenerational consequence of residential schools. The Gladue report invited a connection between J.P.’s FASD, his mother’s childhood experiences and pregnancy, and the life of his great-grandmother with whom his mother lived. The fact that the judge considered J.P.’s FASD separately from other Gladue considerations as a convenience may have contributed to the error in principle that I identify as having been made in this case. With this, I turn back to the two propositions the Crown draws out of, and defends from, the Sentencing Decision.

[46] Contrary to the Crown’s first proposition, the judge himself recognized J.P.’s reduced moral culpability. This is inherent in paragraph 87 of the Sentencing Decision which I have quoted in full above. The criticism expressed by J.P., which I ultimately agree with, is that the judge refused to accept that Gladue considerations should operate to mitigate the appropriate sentence in this case because a penitentiary sentence was required.

[47] Because the Crown argues that Gladue factors did not indicate reduced moral culpability, it is appropriate to say something about the evidence in the case. I would begin with the most basic observation: the evidence disclosed that J.P.’s actions were an outcome of his upbringing which, in turn, was the product of the systemic background facts reviewed in the Sentencing Decision. Focusing on only one aspect of these background facts, I ask, in a deliberately rhetorical way, how can a person who received the “different sort of education” (at para 23) J.P. was given by his stepfather not be less morally culpable than someone who was raised in a stable environment uninfluenced by the mentorship of a criminal? Moreover, beyond the social determinants of J.P.’s behaviour is an important clinical determinant – J.P.’s FASD. The existence of this condition points even more directly to J.P.’s reduced moral responsibility.

[62] All of this informs what I see as the more central argument the Crown makes and the point that I understand the judge ultimately made. That is (to quote the Crown), “Gladue factors said nothing about [the appropriate sentence] because these were clearly not offences calling for an alternative to imprisonment in a penitentiary”. In my respectful view, this is where the central error in principle on the part of the judge occurred. I say this for two reasons.

[63] First, the idea that as soon as a penitentiary sentence is required, Gladue considerations are to be set to the side has been rejected. It was implicitly rejected by the Supreme Court in Gladue when it was stated that “[i]f there is no alternative to incarceration the length of the term must be carefully considered” (at para 93, point 8; see also Chanalquay at para 34). The idea that once penitentiary time is required, Gladue considerations fall away was also explicitly rejected by this Court in Whitehead. In that case, Caldwell J.A. recognized that the identification of the objectives relevant under s. 718.2(e) of the Criminal Code can give rise to a predicament in their actualization through a proportionate sentence, particularly when penitentiary time is required in order to protect, denounce, or deter. However, the requirement for proportionality demands that the impact systemic and background factors have on an individual’s moral blameworthiness be put into the balance when determining the period of incarceration. Justice Caldwell put it this way in Whitehead:

[84] The practical effect of this predicament was indirectly identified in R v Gladue (at para 79), where Cory and Iacobucci JJ. wrote: “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.” In this way, R v Gladue recognises the limited box of rehabilitative and restorative justice tools available to a sentencing court faced with an offence of significant gravity and high offender moral culpability. Whenever a sentence of over two years of imprisonment is merited, the sentencing court is limited by law to giving effect to s. 718.2(e) through the term of imprisonment imposed on the offender. ...(Emphasis added)

[65] Relevant to the degree of J.P.’s responsibility is his FASD and the systemic and background factors that led to his life of crime. A combination of Gladue factors and FASD will often serve to reduce an offender’s moral culpability in the context of a consideration of the proportionality principle. See: Drysdale at para 65; R v Ramsay, 2012 ABCA 257 at para 25, 292 CCC (3d) 400, and Charlie CA at paras 32–33.

[66]....The judge’s error is analogous to that identified by the Alberta Court of Appeal in Okimaw:

[90] Although denunciation and deterrence remain paramount in this case, those sentencing objectives cannot be allowed to obliterate and render nugatory or impotent other relevant sentencing objectives. Instead, those objectives must be carefully, and mercifully, balanced with the sentencing objectives of restraint and rehabilitation, after giving adequate and proper attention to Gladue factors. The constellation of factors in this case justify a lesser period of incarceration, but one that will still have the desired effect of achieving denunciation and both specific and general deterrence.

[69]...there must be a basis in the evidence to link the offender’s reduced moral culpability to his or her condition. 

[70] The need for a connection between the offender’s condition and his or her moral culpability was recently reiterated by both the majority and dissent in R v R.D.F., 2019 SKCA 112, 382 CCC (3d) 1, leave to appeal to SCC refused, 38996 (16 April 2020) [R.D.F.], with reference to R v Okemow, 2017 MBCA 59, 353 CCC (3d) 141, sub nom R v J.M.O. (majority at para 57 and dissent at para 215). The record in this case allows for consideration of J.P.’s FASD in a way that was not possible in M.J.H. Here, the medical record and the findings of fact made by the judge allow for no other conclusion than that J.P.’s moral culpability was reduced by his FASD.

[73] Here, the factors that indicated J.P.’s reduced moral blameworthiness were overwhelming and their connection to the offences cannot be credibly denied. Ipeelee says there is no requirement that “an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge” (at para 81). As noted by Richards C.J.S. in Chanalquay, a “direct cause-and-effect correlation will simply not be possible to establish in most cases” (at para 50). Of course, as stated in Chanalquay, Ipeelee also warns “against an approach to assessing the impact of Gladue factors on moral culpability which is entirely abstract and not rooted in the factual realities of the case before the sentencing judge” (at para 51). However, this is not a case where the connection between the “systemic and background factors that have contributed significantly to J.P.’s circumstances, and to his appearances before the criminal courts of this province” is elusive (Sentencing Decision at para 87). It is also impossible not to see a direct connection between these factors and the specific crimes for which J.P. was being sentenced. Cause and effect are not required, but the facts of this case come as close as most any situation could.

[74] For these reasons, in my respectful view, the judge erred in principle by failing to account for the systemic and background factors (including FASD) that he earlier identified as having contributed significantly to J.P.’s circumstances and his commission of these offences.

Reduction of Sentence

[83] Here, to recap, the judge determined that a fit sentence for each robbery was seven years’ imprisonment, running consecutively. In connection with the housebreaking offence, he determined that a fit sentence to be two years’ imprisonment, consecutive to the sentences for the two robberies. And, finally, he determined that a fit sentence for the remaining crimes was 12 months, concurrent on all those offences, but consecutive to the robbery and housebreaking offences. All of this would result in a combined sentence of 17 years, which the judge reduced to a global sentence of 10 years’ imprisonment. This was achieved by directing that the robbery sentences be served concurrently, not consecutively.

[89] In this case, a sentence of five years’ imprisonment on each robbery conviction will fall at the low end of the range identified in Kirklon, properly denounce J.P.’s unlawful conduct, and not separate him from society for longer than necessary. In this regard, while it is beyond this Court’s ability to make an order that directs this, the expert evidence suggests ways that there are ways the public could be protected by managing J.P. in the community once he has served his sentence.

[90] J.P.’s reduced culpability is relevant not only to the robbery convictions but to the other offences as well. However, he limited his submissions to suggesting that the global sentence be adjusted to reflect this diminished responsibility by simply reducing the two concurrent sevenyear sentences that the judge imposed to two five-year sentences. In my view, this was appropriate, considering that, because the other crimes were from a temporal perspective unrelated to the robberies, it is appropriate that the sentences imposed for them be served consecutively to the sentences for the robberies.

[91] To achieve an appropriate global sentence, I would adopt the same approach as the judge, which is to say, direct that the sentences for the two robberies (now fixed at five years each) be served concurrently, but not vary the sentences imposed for the other offences that are to be served consecutively to the sentences for the two robberies.

R v Kahnapace (SKPC)

[March 2, 2020] – Elements of Arrest - No RPG Despite 911 call About Domestic Fight – 2020 SKPC 9 [D. Kovatch,  J.]

AUTHOR’S NOTE: Often times following a 911 call, police are permitted wide latitude by Courts to respond, detain parties and sort out the situation.  This occurs often in a domestic setting within a home.  Here a fight outside did not allow the same latitude to the responding officers. Despite the 911 call, the SKPC Judge found that a man fleeing the police attendance after such a call did not provide police with RPG to arrest. 

Pertinent Facts

[1] The accused, Raimey Kahnapace, was charged with three offences. It is alleged that all offences arose out of the same short incident on July 2, 2019. The charges were: (1) assault on Tiana Keepness with a weapon, a two litre juice container, contrary to section 267(a) of the Criminal Code.; (2) breach of probation by failing to keep the peace and be of good behavior; and (3) resisting Constable McCarthy, a peace officer engaged in the lawful execution of his duty, by running away, contrary to section 129(a) of the Criminal Code. The trial was held on January 9, 2020 at Fort Qu’Appelle, Saskatchewan. At the commencement of the trial, the Crown stayed the first charge, namely assault with a weapon. The trial proceeded on the other two counts. At the end of trial, I reserved my decision.

[2] The first witness was Mr. Robert Thompson. Mr. Thompson testified that he resides in the town of Fort Qu’Appelle. On July 2, 2019, he was in his house, with his son, at approximately 4:30 to 4:35 p.m. His son was eating and looking out the window of their home. His son called his attention to a man and a woman in the street who were pushing each other. Mr. Thompson saw them push each other a few times. He also saw them throwing what looked to be a fairly large juice container at one another. He said he called 911 for the safety of the female. He remained on the phone with police dispatch. The pair of individuals proceeded into a vacant lot across the street. They shoved each other some more. At that time, the male laid down on the ground, and appeared to be passed out. The female attempted to wake him. She then kicked him two or three times in the stomach. He said the male then got up and got on top of the woman and hit her. They then got up.

[3] The police arrived very quickly. Mr. Thompson advised that he was still on the phone to dispatch when they arrived. As the police drove up, the male started to run. Mr. Thompson testified that he heard the female shout, “Leave him alone. He did nothing wrong.” The officers ran after the man, who is the accused, quickly caught up to him and arrested him.

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

[9] He testified that Constable McCarthy called, “Stop. You are under arrest.” Further, he said Constable McCarthy “used his police voice” and was quite loud. As Constable Stregger jumped out of the car, Constable McCarthy yelled to “get him”.

[11] The officer testified that after he got cuffs on Mr. Kahnapace, the accused was brought back to the police vehicle. At that time he was advised he was under arrest, given his Charter rights and the police warning. The officer testified that at that time, he did not know if the accused was on any other orders.

[13] Under cross-examination, the officer testified that his first note of this matter is “male and female assaulting each other”. The officer agreed with defence counsel that as he approached, he only saw the male and female standing there...

[15] The last witness was Constable Ian McCarthy. He testified that he has been with the RCMP for 10 years and stationed at Fort Qu’Appelle since April 2017.

[17] He estimated they had to drive only 200 to 300 yards from their previous call to this call, so they arrived very quickly. As they drove up to the scene, they saw two people near the street, a male and a female. As they drove towards them, the male saw the police vehicle and ran. Constable McCarthy testified he thought the male was Max Ahtitacoose (spelled phonetically). The officer testified that he hollered, “Max. Stop. You are under arrest”. He then directed Constable Stregger to “get him”. Within seconds, Constable Stregger caught up to the accused and got him on the ground. As Constable McCarthy got to Constable Stregger and the accused, the constable realized that it was this accused, Raimey Kahnapace.

[19] Later, he said that on arrival, the female was upset and crying. It was his opinion that these were the male and female that had been fighting. He believed the accused was arrestable for assault. He later ascertained that Raimey Kahnapace was on probation at the time. A copy of a probation order dated April 8, 2019, was entered as an exhibit. This was done subject to my ruling regarding the objection that the copy of the Order was inadmissible.

[21] Under cross-examination, the officer admitted that he was not aware of the probation order at the time of the arrest. He agreed that the charge was resisting or obstructing by running. He stated that the accused could not run because he was under arrest.

[33] In the case of R v Custer (1984), 1984 CanLII 2586 (SK CA), 32 Sask R 287, the accused was charged with obstructing a peace officer by refusing to allow the peace officer to enter his home to see a stabbing victim.  At paragraph 13, Chief Justice Bayda defined the issue as follows:

The question in the present case, then, may be reduced to whether the attempted forcible entry by Constable Haughn into the defendant’s private home against his will falls within any of the exceptions (to the principle) that are recognized by the law. If the entry falls within an exception, Constable Haughn was acting within the limits of his authority and thus in the execution of his duty; and the charge accordingly will stand.  If the forcible entry does not fall within an exception, he was acting outside of the limits of his authority and thus not in the execution of his duty; that, in turn, will result in the failure to establish an essential ingredient of the charge necessitating its dismissal.

At paragraph 30, the Chief Justice concluded:

Constable Haughn was acting outside his lawful authority and thus not engaged in the execution of his duty when he attempted a forcible entry of the defendant’s house.

[36] During the past decade, the Saskatchewan Court of Appeal has reviewed what constitutes reasonable grounds and what constitutes reasonable and probable grounds on a number of occasions.  I have examined the following decisions:  R v Gunn, 2012 SKCA 80, 399 Sask R 170; R v Shinkewski, 2012 SKCA 63, 399 Sask R 11 [Shinkewski], R v McMahon, 2018 SKCA 26, 361 CCC (3d) 429 [McMahon]; R v Todd, 2019 SKCA 36; R v Pavlik, 2019 SKCA 107 [Pavlik]; R v Smith, 2019 SKCA 126; and R v Chapman, 2020 SKCA 11.  The issue of reasonable grounds or reasonable and probable grounds arises in various contexts.  For example, it arises in reasonable grounds for a peace officer to demand the driver of a vehicle provide a sample of breath or blood.  Also, there is the question of reasonable grounds to believe a criminal offence has been committed or to swear a criminal information.  There is also the issue of reasonable grounds for the issuance of  a search warrant, or reasonable grounds for search without warrant.  There is also the related issue of whether a peace officer is reasonably relying upon certain facts or tips before taking certain actions.  Some aspects or principles seem to be common throughout the various contexts or usages.  However, there are also some differences.  In Shinkewski, at paragraph 13, the Court attempted to set out a number of the principles in summary form.  It stated:

[13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial interpretation. I do not propose to review it all; however, I make the following observations from the jurisprudence:

(a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective point of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeed reasonable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (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), 1993 CanLII 3379 (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 may disregard information which the officer has reason to believe may be unreliable: R. v. Storrey;

(d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage, 2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and

(e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the 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 C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19

[37] In these cases, the courts have placed a particular emphasis upon the facts or factors known to the police officer at the time the officer made the relevant decision.  They have stated that the police officer must, in court, be able to articulate the facts or factors that he relied upon.  He must subjectively believe those facts to be true, and a reasonable person placed in the position of the officer must be able to conclude the officer’s belief was reasonable.

[40] What did these officers know?  The officers knew they had a report from dispatch “of an assault in progress”.  They knew that two people were involved in a fight.  Both officers testified they believed that this accused had committed the offence of assault.  I have no reason to doubt that.  But did either officer have reasonable grounds to believe this?  In the Pavlik case, at paragraph 20, the Court asked:

…[W]hether the observations and circumstances articulated by the police are rationally capable of supporting that belief.  The question asked in R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 at page 250 – 251, was whether an objective, observer standing in the shoes of the police officer with an awareness of the same circumstances, would conclude it was reasonable to believe the individual had committed or was about to commit an indictable offence.

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

[43] I also note that fairly soon after this incident, the police swore this Information alleging that the accused committed an assault on Tianna Keepness with a weapon, a 2 l. juice container. At the start of the trial, this charge was stayed. It does not automatically follow that there were no reasonable grounds to arrest Mr. Kahnapace. However, when I consider together, that the original charge was assault with a weapon and the charge was stayed without evidence; the officers articulated only that there was a fight and assault in progress; the officer thought he was arresting Max Ahtitacoose and that he yelled, “You are under arrest,” when the accused started to run, I feel compelled to the following conclusions. The officers had a bare report without any corroboration or confirmation. They had no opportunity to investigate, and they arrested Mr. Kahnapace because he ran. They did not have reasonable grounds for his arrest.

[44] ... This matter should have been investigated, and dealt with in that course. Her Honour Judge Daunt also concluded that the matter should have been investigated before any arrest was made in Robillard.

[46] I have already concluded that the probation order was not properly before the court. In addition, the police officers testified that the breach of probation charge was based upon the other criminal charges that were laid contemporaneously with this charge. I have found this accused not guilty of the other charges. The breach of probation charge is therefore also dismissed.