IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2008 SKPC 104 Date: July 11, 2008 Information: 40558670 Location: Prince Albert Between: Her Majesty the Queen and Craig Lawrence Kendall Weenie Appearing: Mr. P. Hryhorchuk For the Crown Mr. D. Blenner-Hassett For the Accused DECISION S. C. CARTER, INTRODUCTION: [1] The accused, Craig Lawrence Kendall Weenie, is charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argues that there were insufficient grounds for the accused’s arrest and that the accused was therefore justified in resisting his detention. The Crown’s position is that in these circumstances the police were justified in arresting the accused for being drunk in public. [2] From the evidence heard at the trial on June 12, 2008, make the following finding of the facts. [3] On February 17, 2008 at approximately 7:05 a.m., Cst. Hayes was dispatched to attend to the apartment complex at Bryant Place in Prince Albert, Saskatchewan for an eviction at Block 4, Suite #1. While en route the dispatcher called again advising that the person to be evicted was now outside of the apartment banging on the door. Cst. Hayes drove into the parking lot, got out of his car and saw the accused on the porch banging at the door. The accused then began to walk towards Cst. Hayes. He walked down off the porch and onto the parking lot with his hands in his pockets. Cst. Hayes ordered the accused to remove his hands from his pockets. He repeated this command several times until the accused complied. Cst. Hayes then approached the accused who began to yell obscenities and swear at him. The accused smelled strongly of alcohol and appeared to be slightly unsteady on his feet. He said that he belonged in the apartment and turned away and began to walk back toward it. [4] Cst. Epp had arrived at the scene by this time. As the accused began walking away, he and Cst. Hayes each took hold of the accused’s arms and told him that he was under arrest for being drunk in public. The accused got very angry. He pulled away insisting that he belonged in the apartment. struggle then ensued between the two peace officers and the accused who is over six feet in height and weighs more than three hundred pounds. OC spray was used but had no immediate affect on the accused, but he was eventually handcuffed and placed in the back of police car. [5] Section 129 of The Alcohol and Gaming Regulation Act S.S. 1988-89, c. 18.0, states that “no person shall be in an intoxicated condition in public place or permitted premises”. Pursuant to s. 143 of the same Act, peace officer may arrest without warrant any person whom he finds committing an offence under the Act. [6] Under s. 52(2) of The Summary Offences Procedure Act S.S. 1990-91, c.S 63.1, peace officer who finds person in public place and whom the peace officer reasonably believes, (i) is intoxicated due to the use of alcohol; and (ii) if not detained is likely to cause injury to himself or herself or be danger or disturbance to others and there is no other person capable and willing to take care of the person, may take that person into custody. [7] Pursuant to s. 52(5) the person taken into custody pursuant to s. 52(2) shall be released from custody when, in the opinion of custodian, the person has recovered sufficient capacity that, if released, the person is unlikely to cause injury to himself or herself or be danger or disturbance to others. [8] The outcome of all cases depends upon their unique facts. Thus in R. v. Roberts[1], found, on the facts of that case, that there were insufficient indicia of impairment to warrant the arrest of Mr. Roberts. Roberts was walking by himself in hotel parking lot. One arresting officer said that his eyes were squinty and that his speech was hard to understand. The other officer said that his speech was slightly slurred and that he swayed at one point when he began to walk away from them. No complaints had been received about his behaviour. He spoke at moderate volume. There was no evidence of the smell of alcoholic beverage on his breath. [9] In the case at bar there was complaint concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. In my view these facts distinguish this case from Roberts. [10] Given the complaint and the observations made by Cst. Hayes and Cst. Epp it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing disturbance to others. The complaint came in as an eviction. He was seen by the officers standing on the apartment porch, pounding on the door. In my view there is nothing private about porch. Members of the public have the right to walk up and knock on doors unless previously requested not to do so.[2] In any event, the accused began to yell at the officers prior to his arrest when he was in the parking lot which is, without any doubt, public place. No one else was present who may have been capable and willing to take charge of the accused. [11] The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. Although there was no evidence before the Court of this, defence counsel alluded to the fact that the accused’s mother lived somewhere in the same apartment complex. The Crown’s position is that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go, rather than banging on the door of that particular apartment. In my view, s. 52(2) of The Summary Offences Procedure Act, should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. In my view the arrest was, on these facts, lawful. DECISION: [12] The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. S. C. Carter, [1] 2003 SKPC 75 (CanLII) [2] Rex ex Rel Atkinson v. Montague (1949), 1949 CanLII 400 (ON SC), 97 C.C.C. 29 (Ont. Ct.), and see definition of “public place”, paragraph a, Alcohol and Gaming Regulations Act, 1997 c.A-18.011
The accused was charged with resisting arrest contrary to s. 129(a) of the Criminal Code. The defence argued that there were insufficient grounds for the accused's arrest and he was therefore justified in resisting his detention. The Crown's position was that the police were justified in arresting the accused for being drunk in public. HELD: The Crown has proved beyond a reasonable doubt that the officers were engaged in the lawful execution of their duty when the accused resisted their efforts to arrest him pursuant to The Summary Offences Procedure Act. There was a complaint to police concerning the accused. He was heard and seen banging on the door of an apartment. He smelled of alcohol. He was slightly unsteady on his feet and he was yelling and swearing at the police. Given the complaint and the observations made by the attending constables, it was reasonable for them to believe that the accused was intoxicated due to the use of alcohol. He was causing a disturbance to others. Prior to his arrest, the accused began to yell at the officers in a parking lot which is, without any doubt, a public place. No one else was present who may have been capable and willing to take charge of the accused. The defence argued that in these circumstances the arresting officers should have questioned that accused as to where else he might go to sleep off his intoxication. The Crown submitted that in circumstances such as this, the police are not required to sit down and discuss with the accused where he might go. In the Court's view, s. 52(2) of The Summary Offences Procedure Act should be interpreted as meaning that there must be no other person present at the scene who is capable and willing to take care of the person who is subject to arrest. There was no such person in this case. The arrest was, on these facts, lawful.