R. v. Asante-Mensah (D.), (2003) 306 N.R. 289 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 07, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 306 N.R. 289 (SCC);2003 SCC 38;11 CR (6th) 1;39 MVR (4th) 155;306 NR 289;227 DLR (4th) 75;JE 2003-1330;57 WCB (2d) 522;[2003] SCJ No 38 (QL);174 CCC (3d) 481;175 OAC 317;[2003] 2 SCR 3

R. v. Asante-Mensah (D.) (2003), 306 N.R. 289 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. JL.018

Daniel Asante-Mensah (appellant) v. Her Majesty the Queen (respondent)

(28867; 2003 SCC 38; 2003 CSC 38)

Indexed As: R. v. Asante-Mensah (D.)

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

July 11, 2003.

Summary:

The accused operated a taxi/limousine service to and from Pearson International Airport. He did not have a permit to pick up airport passengers. He was served with a trespass notice under s. 3 of the Trespass to Property Act (Ont.). On three occasions the accused was stopped by airport inspectors who attempted to make a citizen's arrest. The accused eluded arrest each time. The accused was charged with three counts of escaping lawful custody, one count of assault with intent to resist arrest, one count of dangerous driving and one count of using a weapon in committing an assault. The accused raised various Constitutional argu­ments.

The Ontario Court (General Division), in a decision reported at 3 O.T.C. 240, convicted the accused on two counts of escaping lawful custody, but acquitted him on the remaining charges. The Crown appealed the acquittal on the charge of assault with intent to resist arrest. The accused appealed his convictions on the escaping lawful custody charges. The accused argued that his ss. 7 and 9 Charter rights were violated.

The Ontario Court of Appeal, in a decision reported at 150 O.A.C. 325, allowed the Crown's appeal and entered a conviction on the charge of assault with intent to resist arrest. The court dismissed the accused's appeal. The accused appealed. He abandoned his Charter challenge.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 533

Offences against the administration of law and justice - Escapes and rescues - Escape from lawful custody - Airport inspectors attempted to arrest the accused for tres­passing - On one occasion after an inspec­tor had initiated an arrest, the accused shoved his car door into the inspector and drove away - He was charged with assault with intent to resist arrest and escaping lawful custody - A conceptual concern was raised as to whether the accused could be charged with both offences - The Supreme Court of Canada held that the charges were not mutually exclusive - The accused was aware of his arrest and, in shoving his door into the inspector, was resisting, by inten­tionally assaultive behaviour, the continu­ation of the arrest - If the accused had "resigned his liberty" after shoving the door, there would have been no escape from lawful custody - However, the escape charge was laid because the accused fol­lowed up the door-shoving incident with a self-help escape - See paragraph 50.

Criminal Law - Topic 1414.1

Assaults - Assault with intent to resist arrest - [See Criminal Law - Topic 533 ].

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citizens - Section 9(1) of the Trespass to Property Act (Ont.) authorized an occupier of prem­ises, or a person authorized by the occu­pier, to arrest any person he or she reason­ably believed was trespassing - Section 9(2) required that the arrested person be promptly given into police custody - The Supreme Court of Canada held that an occupier was entitled to use reasonable force to arrest a trespasser and main­tain the arrest until the trespasser was delivered to the police - The word "arrest" in s. 9(1) was a term of art and incorpor­ated by reference the incidents of arrest at common law except as modified expressly or by necessary implication - The use of force was supported by s. 28(1) of the Interpre­tation Act (Ont.), because the ability to use force often pro­vided the necessary precon­dition to secur­ing the submission of the person arrested and, therefore, was necess­ary to the effi­cacy of the arrest power - The court stated that reasonable force in the context of the Act might have to have regard not only to what force was necess­ary to accomplish the arrest, but also to whether a forcible arrest was a reason­able course of action in the circumstances.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Powers of private citizens - Section 146(1) of the Provincial Offences Act (Ont.) provided that a police officer, acting on reasonable and probable grounds, was justified in using as much force as was necessary to do what the officer was required or authorized by law to do - The Supreme Court of Canada rejected the argument that the fact that s. 146 shielded police officers but not private individuals (unless acting upon an officer's request for assistance (s. 146(2)) was "a clear indica­tion" that s. 9 of the Trespass to Property Act (Ont.) did not authorize citizens to use rea­sonable force when making an arrest - Section 146 did not authorize police to use force, but provided a defence to a civil action - Further, the fact that two other statutes explicitly authorized the use of necessary force in the context of arrest did not justify a negative inference - See para­graphs 60 to 63.

Criminal Law - Topic 4734.1

Procedure - Information or indictment - Charge or count - Indictable offences - Contradictory charges - [See Criminal Law - Topic 533 ].

Cases Noticed:

R. v. Lerke (1986), 67 A.R. 390; 24 C.C.C.(3d) 129 (C.A.), refd to. [para. 20].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 28].

R. v. Page, [1964] O.J. No. 383 (H.C.), refd to. [para. 30].

Holgate-Mohammed v. Duke, [1984] A.C. 437 (H.L.), refd to. [para. 33].

Murray v. Ministry of Defence, [1988] 1 W.L.R. 692 (H.L.), refd to. [para. 33].

King v. Poe (1866), 15 L.T.R.(N.S.) 37 (Exch. Ct.), refd to. [para. 38].

Frey v. Fedoruk, [1950] S.C.R. 517, refd to. [para. 38].

Christie v. Leachinsky, [1947] A.C. 573 (H.L.), refd to. [para. 40].

R. v. Colet, [1981] 1 S.C.R. 2; 35 N.R. 227, refd to. [para. 41].

R. v. Whitfield, [1970] S.C.R. 46, refd to. [para. 42].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 42].

Hussien v. Chong Fook Kam, [1970] A.C. 942 (P.C.), refd to. [para. 43].

Sandon v. Jervis (1859), 1 E.B. & E. 942; 120 E.R. 760 (Ex. Ch.), refd to. [para. 45].

Nicholl v. Darley (1828), 2 Y. & J. 399; 148 E.R. 974 (Exch. D.), refd to. [para. 45].

Genner v. Sparks (1709), 6 Mod. Rep. 173; 87 E.R. 928 (Q.B.), refd to. [para. 45].

Spicer v. Holt, [1977] A.C. 987 (H.L.), refd to. [para. 46].

Grainger v. Hill (1838), 4 Bing.(N.C.) 212; 132 E.R. 769, refd to. [para. 47].

Alderich v. Humphrey (1898), 29 O.R. 427 (Div. Ct.), refd to. [para. 47].

Higgins v. MacDonald (1928), 50 C.C.C. 353 (B.C.C.A.), refd to. [para. 47].

R. v. Platten (J.A.) (2000), 258 A.R. 153 (Prov. Ct.), refd to. [para. 50].

R. v. Morris (M.J.) (2001), 283 A.R. 272 (Q.B.), refd to. [para. 50].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 51].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 51].

R. v. Cunningham (1979), 49 C.C.C.(2d) 390 (Man. Co. Ct.), refd to. [para. 51].

R. v. Tricker (R.) (1995), 77 O.A.C. 1; 96 C.C.C.(3d) 198 (C.A.), refd to. [para. 52].

R. v. Ambrose, [1999] O.J. No. 3607 (C.J.), refd to. [para. 53].

Spencer v. Pollard (1989), 68 O.R.(2d) 730 (Dist. Ct.), refd to. [para. 53].

Pozniak v. Sault Ste. Marie Police Services Board (2000), 139 O.A.C. 186 (Div. Ct.), refd to. [para. 53].

Mobarakizadeh v. Viking Rideau Corp., [2001] O.J. No. 5045 (Sup. Ct.), refd to. [para. 53].

Diggs v. Century Investigation and Secur­ity Services Inc. et al., [2002] O.T.C. 873 (Sup. Ct.), refd to. [para. 58].

MacDonald v. Hees (1974), 18 N.S.R.(2d) 451; 20 A.P.R. 451; 46 D.L.R.(3d) 720 (T.D.), refd to. [para. 58].

Mullins v. Levenick et al., [1998] N.B.R.(2d) (Supp.) No. 11 (T.D.), refd to. [para. 58].

Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201 (Q.B.), refd to. [para. 72].

Briggs v. Laviolette (1994), 21 C.C.L.T.(2d) 105 (B.C.S.C.), refd to. [para. 72].

R. v. Freake (R.) (1990), 85 Nfld. & P.E.I.R. 25; 266 A.P.R. 25 (Nfld. Prov. Ct.), refd to. [para. 72].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104, refd to. [para. 73].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 73].

Besse v. Thom (1979), 96 D.L.R.(2d) 657 (B.C. Co. Ct.), refd to. [para. 73].

R. v. Bottrell (1981), 60 C.C.C.(2d) 211 (B.C.C.A.), refd to. [para. 73].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 75].

Statutes Noticed:

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 146 [paras. 23, 60].

Trespass to Property Act, R.S.O. 1990, c. T-21, sect. 9 [para. 23].

Authors and Works Noticed:

Anand, R., Task Force on the Law Con­cerning Trespass to Publicly-Used Prop­erty as it Affects Youth and Minorities (1987), pp. 81 et seq. [para. 26].

Blackstone, William, Commentaries on the Laws of England (1769), Book IV, pp. 289, 290 [para. 37].

Canada, Law Reform Commission, Work­ing Paper 41, Arrest (1985), p. 30 [para. 43].

Fridman, G.H.L., The Law of Torts in Canada (1989), vol. 1, p. 70 [para. 74].

Halsbury's Laws of England (1990) (4th Ed. - Reissue), vol. 2(1), pp. 524, 525 [para. 52].

Hawkins, W., A Treatise of the Pleas of the Crown (8th Ed. 1824), vol. 2, c. 9, p. 74, s. 6 [para. 37]; c. 12, pp. 120, 121, ss. 20, 22 [para. 39].

Holdsworth, W., A History of English Law (2nd Ed. 1973), vol. 3, pp. 598, 599, 600 [para. 21].

McLeod, R., Parapolice: A Revolution in the Business of Law Enforcement (2002), p. 67 [para. 25].

Ontario (Attorney General), Discussion Paper on Occupiers' Liability and Tres­pass to Property (1979), p. 13 [paras. 30, 31].

Ontario (Attorney General), This land is whose land? A legal guide to property protection rights (1987), pp. 14 [paras. 51, 71, 76]; 15 [para. 71].

Rigakos, G.S., The New Parapolice: Risk Markets and Commonfield Social Con­trol (2002), pp. 52, 53 [para. 25].

Salhany, R.E., Canadian Criminal Pro­cedure (6th Ed. 1994) (2003 Looseleaf Update) (Release 18), p. 3-8.1 [para. 40].

Stenning, P.C., and Shearing, C.D., Search and Seizure: Powers of Private Security Personnel (1979), p. 75 [para. 26].

Stephen, J.F., A History of the Criminal Law of England (1883), vol. 1, pp. 189, 193 [para. 37].

Counsel:

Michael W. Lacy and Jennifer D. Thompson, for the appellant;

Scott C. Hutchison and Ian Bulmer, for the respondent.

Solicitors of Record:

Kelly, Jennings & Lacy, Toronto, Ontario, for the appellant;

Ministry of the Attorney General for Ontario, Toronto, Ontario, for the re­spondent.

This appeal was heard on November 7, 2002, by McLachlin, C.J.C., Gonthier, Iaco­bucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on July 11, 2003, by Binnie, J.