R. v. Lerke, (1986) 67 A.R. 390 (CA)

• Judge: Laycraft, C.J.A., Haddad and Belzil, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 27, 1986
• Citations: (1986), 67 A.R. 390 (CA);1986 ABCA 15;25 DLR (4th) 403;[1986] 3 WWR 17;43 Alta LR (2d) 1;67 AR 390;24 CCC (3d) 129;49 CR (3d) 324;[1986] AJ No 27 (QL);20 CRR 31

R. v. Lerke (1986), 67 A.R. 390 (CA)

MLB headnote and full text

R. v. Lerke

(Appeal # 8403-804 5A)

Indexed As: R. v. Lerke

Alberta Court of Appeal

Laycraft, C.J.A., Haddad and Belzil, JJ.A.

January 27, 1986.

Summary:

Lerke entered a tavern, refused to produce his I.D. and was told to leave. Lerke re-entered the tavern, which constituted an offence under the Liquor Control Act. The tavern manager arrested Lerke and asked him to empty his pockets. While searching Lerke's coat for an I.D., a tavern employee discovered a bag of marijuana. Lerke was charged with possession of a narcotic contrary to s. 3(1) of the Narcotic Control Act.

The Alberta Provincial Court acquitted Lerke. The court held that the search was an unreasonable search and seizure contrary to s. 8 of the Charter of Rights and Freedoms and excluded the evidence under s. 24(2) on the ground that its admission would bring the administration of justice into disrepute. The Crown appealed.

The Alberta Court of Queen's Bench, in a judgment reported (1984), 55 A.R. 216; 13 C.C.C.(3d) 515, dismissed the appeal. The court stated that the right to be secure from unreasonable search and seizure applied to protect citizens against actions by other private citizens as well as by government. The Crown appealed.

The Alberta Court of Appeal dismissed the appeal. The court held that an arrest by a private citizen was a governmental action rather than a private action, therefore whether the Charter applied to protect against actions by private citizens did not need to be decided. The court held that a citizen making a valid arrest had the same power to search as the police, but that the search in the present case was unreasonable and contrary to s. 8 of the Charter. The court affirmed the exclusion of the evidence on the ground that its admission would bring the administration of justice into disrepute.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Charter of Rights and Freedoms, s. 8 - A tavern manager validly arrested Lerke for the offence of re-entering a tavern while forbidden from doing so - Lerke was searched while held by the tavern manager and a bag of marijuana was found - The Alberta Court of Appeal held that the circumstances of the offence for which the arrest was made were so innocent, the offence itself so minor and circumstances of urgency so lacking that there was no right to search - There was no need to search to protect themselves or to preserve evidence - The court stated that there must be a nexus between the search for evidence and the offence for which the person was arrested - See paragraphs 42 to 44.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Non-governmental or private interference - The Alberta Court of Queen's Bench held that an arrest by a private citizen was a private rather than a governmental action and that the Charter of Rights and Freedoms applied to protect citizens from the actions of both private citizens and government - The Alberta Court of Appeal held that a citizen's arrest was a governmental function, to which the Charter obviously applied, therefore it was unnecessary to decide the difficult question as to whether the Charter applied to the actions of private citizens toward each other - See paragraphs 15 to 23.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - s. 24(2) - Lerke was arrested for re-entering a tavern while forbidden from doing so contrary to the Liquor Control Act - Lerke was subjected to an unreasonable search and seizure contrary to s. 8 of the Charter, which uncovered a bag of marijuana - The Alberta Court of Appeal affirmed the exclusion of the evidence on the ground that its admission would bring the administration of justice into disrepute, because of the trivial nature of the offence disclosed as compared to the serious breach of the Charter - See paragraphs 45 to 50.

Criminal Law - Topic 3150

Power of search - Private citizens - The Alberta Court of Appeal held that a citizen who made a valid citizen's arrest had the same powers of search as those of a police officer making a valid arrest - The court, in discussing the scope of that power, stated that the power was necessary for the protection of the citizen making the arrest and to obtain and preserve evidence related to the offence for which the arrest was made - See paragraphs 24 to 35.

Criminal Law - Topic 3214

Compelling appearance, detention and release - Arrest - Private citizens - Powers of - The Alberta Court of Appeal held that a private citizen making an arrest was exercising a governmental function, not a private action - The court discussed the history and scope of a citizen's right to arrest - See paragraphs 15 to 23.

Cases Noticed:

Bessell v. Wilson (1853), 20 Law T. 233, refd to. [para. 25].

Leigh v. Cole (1853), 6 Cox C.C. 329, refd to. [para. 26].

Gordon v. Denison (1895), 22 O.A.R. 315, refd to. [para. 27].

Dillon v. O'Brien (1887), 20 L.R. Ir. 300, refd to. [para. 27].

R. v. Brezack (1949), 96 C.C.C. 97, refd to. [para. 27].

R. v. Alderton (1985), 7 O.A.C. 121; 44 C.R.(3d) 254 (Ont. C.A.), refd to. [para. 27].

Gottschalk v. Hutton (1921), 36 C.C.C. 298, refd to. [para. 29].

Reynen v. Antonenko et al. (1975), 30 C.R.N.S. 135, refd to. [para. 30].

Tyler & Witt v. London & South Western Rail Co. (1884), Cab. & E1. 285, refd to. [para. 34].

Elias v. Pasmore, [1934] 2 K.B. 164, refd to. [para. 34].

United States v. Rabinowitz (1949), 339 U.S. 56, refd to. [para. 37].

United States v. Viale (1963), 312 F. 2d 595, refd to. [para. 40].

R. v. Cohen (1983), 5 C.C.C.(3d) 156, consd. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24(2).

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 3(1) [para. 5].

Liquor Control Act, R.S.A. 1980, c. L-17, sect. 73, sect. 84(1), sect. 98(3) [para. 9]; sect. 104 [para. 10].

Petty Trespass Act, R.S.A. 1980, c. P-6, sect. 4 [para. 12].

Summary Convictions Act, R.S.A. 1980, c. S-26, sect. 4(1), sect. 4(2) [para. 13].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 449(2), sect. 449(3) [para. 14].

Authors and Works Noticed:

Stephen, History of the Criminal Law of England, vol. 1, pp. 184-185 [para. 16]; 189 [para. 17]; 493-494 [para. 18].

Lee, A History of Police in England (1901), p. 334 [para. 19].

Salhany, Canadian Criminal Procedure (4th Ed.), p. 44 [para. 20].

Law Reform Commission of Canada, Working Paper No. 30, Police Powers - Search and Seizure in Criminal Law Enforcement, p. 167 [para. 31].

Halsbury's Laws of England (3rd Ed), vol. 10, p. 356 [para. 33].

Bird, A Manual on Arrest (1963), p. 93 [para. 34].

McDonald Commission of Inquiry Concerning Certain Activities of the R.C.M.P. - 2nd Report Freedom and Security Under the Law (1981), [para. 48].

Counsel:

I.C. Hutton, Q.C., David Pomerant and K. Lambrecht, for the appellant;

D.M. Midanik, for the respondent.

This appeal was heard before Laycraft, C.J.A., Haddad and Belzil, JJ.A., of the Alberta Court of Appeal.

On January 27, 1986, Laycraft, C.J.A., delivered the following judgment for the Court of Appeal.