J. IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2008 SKPC 160 Date: November 26, 2008 Information: 24112648 and 43395555 Location: Saskatoon Between: Her Majesty the Queen and Arthur Cachene Appearing: Sandeep Bains For the Crown Allen McGuire For the Accused DECISION ON AN APPLICATION TO EXCLUDE EVIDENCE W.K. TUCKER, 1. The accused is charged with the offence of aggravated assault on Victor McKay on February 21, 2008. Prior to his trial, the accused, through his counsel, gave notice that he would be making an application to the court for ruling that the accused’s rights under the Charter of Rights and Freedoms, (hereinafter referred to Charter), had been infringed, and seeking remedy for that infringement. At the trial, Crown counsel called six witnesses to testify, and, during the course of the evidence of the sixth witness, requested that the court enter into voir dire. 2. The purpose of the voir dire was to hear and determine an application by counsel for the accused, for a ruling finding that the rights of the accused under sections 8, 9, and 10 (a) and (b) of the Charter had been infringed. The remedies sought were, firstly, stay of proceedings regarding the charges before the court, or, in the alternative, the exclusion of evidence obtained from the accused while he was being held in detention at the Saskatoon Police Service building. 3. By agreement of counsel, all of the evidence taken on the trial proper was made applicable to the voir dire. Crown and defence counsel agreed that the Crown would call the witnesses on the voir dire, thus giving defence the opportunity to cross-examine them. The Crown called three witnesses on the voir dire, those being Constable Epp, Sergeant Huisman, and Sergeant Johnson, all of the Saskatoon Police Service. The defence did not call any witnesses on the voir dire. 4. The evidence on the voir dire indicated that on February 21, 2008, Constable Epp was directed to 2112 Main Street East in Saskatoon because of complaint of disturbance. She was in uniform, in marked patrol car, operating alone. Constable Hudec also arrived at the building in his own patrol car. The two officers entered the building, and were directed to apartment 4. That apartment was occupied by the accused. 5. Constable Epp testified that when they arrived at the apartment at 10:37 am, they knocked on the door and were admitted into the apartment by the accused. Both the accused and Mr. McKay were in the apartment. There was no one else in the apartment at that time. Both the men were sitting at the table, but everything appeared to be normal. Neither of the men appeared to be injured, there was no sign of blood in the apartment, and the officers concluded, essentially, that there was not problem at that time. They had spoken to person who had been in the apartment before the police arrived, had left his jacket there, and wanted the police to recover it for him. The accused handed jacket to that individual while the police were present and that person left. When the police left the apartment after spending about five minutes there, the accused and Mr. McKay were alone in the apartment. 6. Constable Epp was directed back to the same building about half hour after she had left it, on another complaint of disturbance. They were again directed to the same apartment. Constable Epp knocked on the door and received no response. She knocked again, and called out the accused’s name. The accused asked who it was, and she responded that it was the police. The accused opened the door, and the police entered. She observed that Mr. McKay was lying on the floor, covered in blood, with large amount of blood on the floor underneath him, and blood on the wall near him. The accused was the only other person in the apartment, and she observed red substance on his face and hands. She advised the accused he was being detained with respect to an apparent assault causing bodily harm, and placed handcuffs on him. She had no further conversation with him at the time because she, and another police officer who had arrived at the same time, were both occupied with attending to Mr. McKay. An ambulance was called for Mr. McKay, it arrived, and Mr. McKay was transported away by ambulance at 11:35 am. 7. Constable Epp then asked the accused what happened. The accused first said he was in the bedroom when it had happened and then said Mr. McKay fell. Constable Epp decided she had sufficient grounds to arrest the accused and arrested him for assault. She read him the standard police warning to which he replied “yeah”. She then read him the standard right to counsel, to which he responded “yeah”. The accused appeared to understand her, and was cooperative with her, although earlier he had been belligerent in responding to her partner. Constable Epp took the accused to her patrol car, intending to take him to detention. 8. While that was happening, Sergeant Pittman arrived at the scene. Sergeant Pittman was her immediate superior. Constable Epp told Sergeant Pittman what had happened, and Sergeant Pittman told her that there were not sufficient grounds to arrest the accused, and that she should “unarrest” him, but to keep the accused detained. In cross-examination, Constable Epp indicated that Sergeant Pittman had left it up to her as to whether to continue the detention and had suggested she try and get statement from the accused. She did reiterate that she was told by Sergeant Pittman to detain the accused, and that he had taken over the investigation. 9. Constable Epp spoke to the accused in the patrol car and told him that he was no longer under arrest, but that he would still be detained, that he could contact counsel at the police station, and that he could provide statement after he talked to his lawyer. The accused was transported, handcuffed, to the police station by Constable Epp. At the station he was taken to the detention area, booking sheet was completed, and the accused was placed in booking room. 10. In the booking room, the accused said he wanted to talk to Cathy Bohachik. Constable Epp testified that she thinks that she, Constable Epp, looked in the telephone book for the name of Cathy Bohachik, but she is not sure that she actually did so. She did say to the accused that she thought that Cathy Bohachik was with Legal Aid. The accused responded “OK, Legal Aid is fine”. Constable Epp then put the accused in touch with the legal aid duty counsel and left him alone to talk to counsel. She took no further steps to assist the accused to contact Cathy Bohachik personally, and made no further enquiries of the accused regarding counsel. After his telephone conversation the accused did not express any dissatisfaction with respect to his contact with counsel. He declined to give any statement to the police. 11. With regard to the circumstances of the accused’s confinement, the handcuffs were removed and he was kept in room with police officer guarding the open door and keeping him under observation. 12. Sergeant Pittman met with Sergeant Huisman and outlined the situation to him, including the arrest, “un-arrest”, and detention of the accused. By this time the police had learned that the injuries to Mr McKay were life threatening, with real possibility that Mr. McKay might die from those injuries. Sergeant Huisman, who was in the Major Crimes Unit of the police service, agreed to take charge of the investigation. Sergeant Huisman was told that the accused was in custody for aggravated assault. He testified that he did not direct his mind to the fact that the accused had been “un-arrested”, or to the status of the accused as being detained, rather than being under arrest. He testified that he was satisfied that sufficient grounds existed for the accused to be arrested, but he did not direct the arrest of the accused or take other steps to clarify the status of the accused. 13. Sergeant Huisman spoke with Constable Epp and advised her that the investigation was now in the hands of Major Crimes, and that he had charge of it. He directed her to contact the police forensic Identification Section to have the accused “processed”, and then, because he believed that time was of the essence, he contacted Sergeant Johnson of the Identification Section directly, to request the immediate processing of the accused. 14. Sergeant Johnson attended at the detention area at 1:20 pm to “process” the accused. She did not know about his status as arrested or detained, and did not enquire into it. The processing consisted of taking numerous photographs of the accused, testing blood-like stains on his person and clothes with “hemosticks”, taking swabs of those substances which the “hemosticks”indicated were positive for blood, and seizing the clothing of the accused. The accused was cooperative throughout the procedure. Constable Epp assisted Sergeant Johnson in the process. 15. Crown and defence entered into evidence on the voir dire, an agreed statement of fact which became Exhibit D-3 and is reproduced below. [16] The photographs taken of the accused have already been entered into evidence with the consent of the accused as part of Exhibit P-1, and, accordingly, are not part of the evidence which the defence seeks to have excluded. The tests, swabs, and seized clothing, and the consequent analysis of those items, are the evidence the defence seeks to have excluded. [17] Turning now to the grounds for the accused’s application, will deal firstly with the allegation that the accused’s rights under section 10 (b) of the Charter were infringed. That section reads, in part: Everyone has the right on arrest or detention; (b) to retain and instruct counsel without delay and to be informed of that right ... The position of the defence is that the right under Section 10 (b) includes the right to retain and instruct counsel of choice, and that the police officer with custody of an accused has an implementational duty to assist the accused to do that. In this case, defence submits, the accused asked for counsel, Cathy Bohachik, by name, but the police officer put the accused in contact with legal aid duty counsel instead. [18] The onus of establishing that right has been breached is on the accused. In this case, there is no evidence to establish that the accused did not speak to Ms. Bohachik. The agreed statement of fact establishes that Ms. Bohachik was employed with Legal Aid, and the officer connected the accused with lawyer working for Legal Aid. Presumably, simple request by the accused to speak with Ms. Bohachik could have produced that result. Since the accused did not testify, we do not know one way or the other, but the onus is on him to establish the breach. One can infer from the fact that the application was made, that no contact with Ms. Bohachik was made. The application proceeded on that assumption, and am prepared to accept it for the purposes of this proceeding. [19] The evidence shows that the accused asked for Ms. Bohachik by name. Constable Epp thought, correctly as it turned out, that Ms. Bohachik was solicitor employed with Legal Aid, and communicated that information to the accused. His response was “OK, Legal Aid is fine”. The exchange does not indicate that the accused was being refused or hindered in obtaining counsel of his choice, but rather that Constable Epp was assisting him, which led to the accused, on his own initiative, saying that Legal Aid in general was suitable to him. [20] Exhibit D-3 establishes that there are several ways to contact Legal Aid by telephone. The evidence of Constable Epp establishes that she contacted Legal Aid duty counsel by telephone. There is no evidence that the numbers for Legal Aid in the telephone book would be more likely to produce contact with Ms. Bohachik than direct contact with duty counsel. Either way, simple request by the accused to speak with Ms. Bohachik would, if she was available, in all likelihood, have resulted in the desired contact. [21] The fact remains, however, that on his own initiative, the accused requested contact with Legal Aid generally, and that was provided to him. An analogous situation would be an accused who asks for private lawyer “A”, and upon being told that lawyer “A” was practising with the firm “A, C”, says any of those lawyers would be fine. Placing him in contact with any one of the lawyers would comply with his request for counsel of choice. [22] Defence counsel has cited the cases of R. v. McLaren, 2001 SKQB 493 (CanLII), and R. Steinhauser,[1999] O.J. No. 522 in support of his position. Those cases deal with substantially different fact situations. In McLaren, the accused said “I don’t have lawyer. have to phone my wife” in response to the officer advising him of his right to counsel. The police officer then put the accused in contact with duty counsel without giving him any opportunity to contact his wife, or to choose counsel in any other fashion. In Steinhauser, the accused asked to speak to particular lawyer. When the officer tried to reach that lawyer, the officer reached only an answering machine. Apparently without any discussion with the accused, the officer contacted duty counsel, and placed the accused in contact with that duty counsel. The accused throughout had insisted he wanted contact with his named lawyer. [23] In the present case, the accused was not only put in direct contact with Legal Aid duty counsel after having said that legal aid was fine, but he had the immediate and reasonable opportunity to contact a particular Legal Aid lawyer by requesting her by name from another legal aid lawyer. [24] The accused has not satisfied me that his Charter rights were not observed with respect to Section 10 (b). [25] turn now to the second argument with respect to the application by the accused. It is based on sections 8, 9, and 10 (a) of the Charter which read: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention a) to be informed promptly of the reasons therefor; [26] The position of the accused is that when the accused was “un-arrested” by Constable Epp, but, nonetheless, detained in custody, that his detention was arbitrary and unlawful, and the subsequent “processing” by Sergeant Johnson was an unlawful, and unreasonable, search and seizure by her, being neither pursuant to warrant, nor incident to lawful arrest. The accused further argues that once he had been “un-arrested” he was not advised of the reason for his detention until after the processing procedure. [27] Defence counsel relies primarily upon the Supreme Court decision in R. v. Mann [2004] S.C.C. 52, together with other cases. The Mann decision established, amongst other things, that common law power of investigative detention exists which allows police officer to briefly detain person for investigative purposes, without advising the person of his or her right under the Charter to retain and instruct counsel. The right of detention does not include right to search, except for the purpose of searching for weapons to ensure the safety of the officer. The detention must be as brief as possible under the circumstances, and does not include the transportation of the detainee to the police station, or detention there. [28] The position of the Crown is that the status of the accused when he was “un-arrested” did not change, in that while he was ostensibly being detained for investigation, his transportation to the police station, his detention there including the “processing”, examination and seizure amounted to “de facto” arrest. He was given the opportunity to consult counsel, and treated in all respects as though he was in custody after an arrest. The Crown relies primarily on the Supreme Court decision in R. Latimer, 1997 CanLII 405 (SCC), [1997] S.C.R. 217, together with other cases. [29] In Latimer, the police deliberately decided not to arrest the accused, although they made it clear to him that he was detained and in custody. He was advised of his right to counsel, given the standard police caution, and told the reason for his detention. He was then taken to the police detachment, where he was reminded of his rights regarding counsel and the warning. He gave statement to the police. The Supreme Court held that the statement was admissible into evidence. The court held that even though the police had made conscious decision not to arrest the accused, their treatment of him amounted to “de facto” arrest and not an arbitrary detention. [30] In my opinion, before one considers whether the evidence seized from the accused, Mr. Cachene, was seized while he was under investigative detention or “de facto” arrest, one must first consider his status after he was “un-arrested” by Constable Epp. The concept of an “un-arrest” is novel one to me. Neither Crown nor defence counsel cited any case authority dealing with that concept. My own search of the case law, while by no means exhaustive, did not produce any cases dealing with that concept. In order to consider the issue, one must first ascertain what constitutes an arrest. [31] In R. Asante-Mensah, 2003 SCC 38 (CanLII), [2003] S.C.J. No. 38, Binnie, J. Speaking on behalf of unanimous court wrote: Arrest at Common Law 33. good starting point is the description of an arrest at common law provided by Lord Diplock in Holgate-Mohammed v. Duke, [1984] A.C. 437 (H.L.), at p. 441: 1. The word "arrest" ... is term of art. First, it should be noted that arrest is continuing act; it starts with the arrester taking person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before magistrate, is remanded in custody by the magistrate's judicial act. [Emphasis added.] See also Murray v. Ministry of Defence, [1988] W.L.R. 692 (H.L.), at p. 699. [32] Applying this common law definition of arrest to the present situation, it is apparent that telling person that he is no longer under arrest, without releasing him from custody, does not terminate the arrest. It is only by ending the custody of the accused, by releasing him, that the arrest is ended, and the accused is “un-arrested”. [33] It was not argued before me that Constable Epp did not have sufficient grounds to arrest the accused. In my opinion she did have sufficient grounds. The arrest being legally made, it follows that the arrest continued until it was legally ended by his release. [34] Both Crown and defence counsel argued the case on the assumption that the “un-arrest” ended the arrest. The Crown argued that the continuing detention of the accused, and his handling by the police, constituted “de facto” arrest as described in Latimer, supra. Defence counsel argued that Latimer must be taken to have been overruled by the decision in Mann, supra. At para. 35 of that decision, Iacobucci, J., writing for the majority of the court, said .... police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of hunch, nor can it become de facto arrest. [35] The Latimer decision is not referred to at all in Mann. would be loathe to decide that unanimous decision of the Supreme Court is overruled by inference, in later decision which does not even refer to it. am encouraged in the belief that Mann did not overrule Latimer by the fact that at para. 46 of Asante-Mensah, supra, Iacobucci, J. wrote of the decision in Latimer as follows: 46 Arrest may also be effected by words and restraint on liberty which is accompanied by submission. This is how Whitfield was interpreted in Latimer, supra, where the accused, Saskatchewan farmer, was detained by police on suspicion of terminating the life of his handicapped daughter. The police, for their own reasons, intended to stop short of arresting him and no "words of arrest" were spoken. No force was used. However, the issue, for purposes of s. of the Charter ("arbitrary detention"), was defined by the Court as what the person arrested understood. It was concluded that he submitted to go with the police because he understood that he was under compulsion to do so. There was, in the words of Lamer C.J., de facto arrest (para. 25). Latimer considered himself deprived of "his liberty to go where he pleases": Spicer v. Holt, [1977] A.C. 987 (H.L.), at p. 1000. [36] The explanation for the apparent contradiction is, in my opinion, that, in Latimer, the court found that there was an actual, legal arrest at the commencement, not an actual investigative detention which was transformed into an arrest. The Mann case and the Latimer case are, therefore, not contradictory, and the former does not need to, and does not, overrule the latter. [37] In summary, I find that the initial arrest by Constable Epp was lawful, was not terminated by the purported “un-arrest” of the accused, and continued throughout the search and seizure at the police station. Even if I were in error in that finding, his continued detention after the purported “un-arrest” constituted a “de facto” arrest as described in Latimer. [38] There is no suggestion in the evidence before me that the accused misunderstood his actual status in any way, or that he was prejudiced by the “un-arrest”. The accused has not established that he was the subject of “unreasonable search or seizure” resulting in a violation of his rights under the Charter. [39] There is no reason to consider remedy under section 24 (2) of the Charter. Any relevant evidence obtained by Sergeant Johnson is admissible according to the ordinary rules of evidence. Wilfrid K. Tucker,
The accused is charged with aggravated assault. A voir dire was held to determine whether the accused's s. 8, s. 9, s. 10(a) and s. 10(b) Charter rights were breached. HELD: There was no breach of the accused's Charter rights. 1) There is no evidence to establish that the accused did not speak to legal counsel. The agreed statement of facts establishes that the accused asked to speak with Ms. Bohachik, a lawyer with Legal Aid. The police officer put the accused in contact with legal aid duty counsel instead. When the officer told the accused that Ms. Bohachik worked with Legal Aid the accused said 'ok, Legal Aid is fine'. The accused was put in contact with Legal Aid duty counsel. There was no breach of the accused s. 10(b) rights.  2) Applying the common law definition of arrest to the present situation, it is apparent that telling a person that he is no longer under arrest, without releasing him from custody, does not terminate the arrest. It is only by ending the custody of the accused by releasing him that the arrest is ended and the accused is 'un-arrested'. It was agreed that the officer had sufficient grounds to arrest the accused. The arrest being legally made, it follows that the arrest continued until it was legally ended by his release. The arrest continued throughout the search and seizure at the police station. The Court finds that his continued detention after the purported 'un-arrest' constituted a de facto arrest. 3) There is no evidence that the accused misunderstood his actual status or that he was prejudiced by the 'un-arrest'. The accused has not established that he was the subject of 'unreasonable search or seizure' resulting in the violation of his rights under the Charter.