R. v. Elliott, (1984) 57 A.R. 49 (ProvCt)

• Judge: Porter, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 04, 1984
• Citations: (1984), 57 A.R. 49 (ProvCt)

R. v. Elliott (1984), 57 A.R. 49 (ProvCt)

MLB headnote and full text

R. v. Elliott

Indexed As: R. v. Elliott

Alberta Provincial Court

Porter, P.C.J.

July 24, 1984.

Summary:

While stopped for a trifling violation of the Liquor Control Act, the accused assaulted an R.C.M.P. officer. The accused was detained and taken to the R.C.M.P. detachment. The accused was not released after completion of the booking procedure, but was asked to hand over his personal effects and to remove his pants. A fight ensued and the accused was injured and thrown in the drunk tank for the night, even though he was not intoxicated. The accused was charged with assaulting a peace officer and resisting arrest, the latter charge relating to the second fight. Through vengeance or neglect, the accused was not released until later the next day.

The Alberta Provincial Court held that the accused's detention after the completion of the booking procedure was illegal; the accused should have been released pursuant to an appearance notice under s. 452(1) of the Criminal Code of Canada. The court held that, therefore, the resisting arrest charge arising out of the fight at the detachment must be dismissed, because the accused was justified in using reasonable force to prevent an assault where he was illegally detained. The court stated that although the accused was guilty of the initial assault, his abuse by the R.C.M.P. made it just and appropriate that the court give the accused an absolute discharge under s. 24(1) of the Canadian Charter of Rights and Freedoms. The court stated that the absolute discharge was necessary to reflect the court's general disapproval of the R.C.M.P.'s tainted conduct.

Civil Rights - Topic 3603

Detention and imprisonment - Arbitrary detention - What constitutes - An accused was taken to an R.C.M.P. detachment and booked for assaulting an R.C.M.P. officer - The assaulted officer, who knew the accused was not intoxicated, placed the accused in the drunk tank rather than releasing him pursuant to an appearance notice - The officer ended his shift and the accused was neglected until later the next day when he was released - Everyone at the detachment "passed the buck" concerning the accused's release - The Alberta Provincial Court held that the accused was arbitrarily detained, contrary to s. 9 of the Canadian Charter of Rights and Freedoms - See paragraphs 2 to 14.

Civil Rights - Topic 8376

Canadian Charter of Rights and Freedoms - Remedies - Discharge of accused - A sober accused was detained overnight in the drunk tank after being charged with assaulting an R.C.M.P. officer - The accused was neglected and abused - The Alberta Provincial Court opined that the sole reason for the detention was vengeance or neglect - The court stated that although the accused was guilty of the original assault, the conduct of the R.C.M.P. made it just and appropriate that the accused be given an absolute discharge under s. 24(1) of the Charter - The court stated that the discharge was necessary to reflect the court's general disapproval of the R.C.M.P.'s tainted conduct - See paragraphs 2 to 14.

Criminal Law - Topic 434

Obstruction - Resistance of peace officer in the execution of his duty - An accused was being illegally detained by police - A fight broke out and the accused was charged with resisting arrest - The Alberta Provincial Court dismissed the charge, because the accused was justified in using reasonable force against the police to prevent an assault upon himself where he was illegally detained - See paragraphs 2 to 14.

Criminal Law - Topic 3301

Detention and release - Interim release of accused pending trial - Detention necessary for protection of public - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 452(f) - An accused was detained overnight in a drunk tank after assaulting a police officer - The police admitted that the accused was not intoxicated - The Alberta Provincial Court held that the accused should have been released pursuant to an appearance notice, because his detention was not necessary for the protection of the public - The court opined that the sole reason for the detention was vengeance or neglect - See paragraphs 2 to 14.

Criminal Law - Topic 3303

Detention and release - Interim release of accused pending trial - Detention necessary to ensure attendance - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 452(g) - An accused was detained overnight in a drunk tank after assaulting a police officer - The police admitted that the accused was not intoxicated - The Alberta Provincial Court held that the accused should have been released pursuant to an appearance notice, because his detention was not necessary to ensure attendance at trial - The court opined that the sole reason for the detention was vengeance or neglect - See paragraphs 2 to 14.

Criminal Law - Topic 4430

Procedure - Verdicts, discharges and dismissals - Absolute discharge in lieu of conviction - A sober accused was detained overnight in the drunk tank after assaulting an R.C.M.P. officer - The accused was neglected and abused - The Alberta Provincial Court opined that the sole reason for the detention was vengeance or neglect - The court stated that although the accused was guilty of the original assault, the conduct of the R.C.M.P. made it just and appropriate that the accused be given an absolute discharge under s. 24(1) of the Charter - The court stated that the discharge was necessary to reflect the court's general disapproval of the R.C.M.P.'s tainted conduct - See paragraphs 2 to 14.

Cases Noticed:

R. v. Tisdale, 13 C.R.N.S. 120, appld. [para. 10].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 452(1) [para. 4].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 9 [para. 12]; sect. 24(1) [para. 13].

Counsel:

J. Higgerty, for the Crown;

S. Hamilton, for the defence.

These charges were heard at Jasper, Alberta, before Porter, P.C.J., of the Alberta Provincial Court, who delivered the following judgment orally on July 4, 1984.