R. v. Munson (K.) et al., (2003) 232 Sask.R. 44 (CA)

• Judge: Tallis, Cameron and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 20, 2003
• Jurisdiction: Saskatchewan
• Citations: (2003), 232 Sask.R. 44 (CA);2003 SKCA 28

R. v. Munson (K.) (2003), 232 Sask.R. 44 (CA);

    294 W.A.C. 44

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. MR.058

Kenneth Munson (appellant) v. Her Majesty the Queen (respondent)

(No. 401)

Daniel Hatchen (appellant) v. Her Majesty the Queen (respondent)

(No. 402)

(2003 SKCA 28)

Indexed As: R. v. Munson (K.) et al.

Saskatchewan Court of Appeal

Tallis, Cameron and Sherstobitoff, JJ.A.

March 13, 2003.

Summary:

Two police officers arrested the aboriginal complainant, drove him to a deserted area on the outskirts of the city and left him to walk back to the city in the bitter cold wearing only light clothing. The complainant had not been charged with an offence. The officers were charged with unlawful confinement and assault. They applied for a change of venue.

The Saskatchewan Court of Queen's Bench, in a decision reported at 212 Sask.R. 29, dismissed the application. A jury convicted the officers of unlawful confinement. Although the officers were not aboriginals, they applied for a sentencing circle.

The Saskatchewan Court of Queen's Bench, in a decision reported at 214 Sask.R. 262, dismissed the application. In a decision reported at 212 Sask.R. 305, the court sentenced the officers to eight months' imprisonment. The officers appealed their convictions and sentences.

The Saskatchewan Court of Appeal dismissed the appeals.

Criminal Law - Topic 229.1

General principles - Statutory defences or exceptions - Deemed lawfulness of arrest or non-release - Two police officers apprehended the complainant for allegedly causing a disturbance - The officers did not charge the complainant, but dropped him off in the city outskirts and forced him to walk home - The officers were charged with, inter alia, unlawful confinement (Criminal Code, s. 279(2)) - The officers argued, inter alia, that, pursuant to ss. 495(3), 497(3) and 498(3) of the Code, they were deemed to have been acting lawfully and in the execution of their duties even if the complainant was not immediately released from custody - The Saskatchewan Court of Appeal held that ss. 495 to 498 did not apply in circumstances where the arresting and detaining officers had decided not to charge the person - Where there was no intention to charge the person, the provisions did not provide authority to continue to detain the person, at least in these circumstances - Further, they did not provide immunity from prosecution for criminal offences which might occur as a result of detention without lawful authority - See paragraphs 48 to 58.

Criminal Law - Topic 1450.1

Offences against person and reputation - Unlawful confinement, imprisonment or forcible seizure - General - [See Criminal Law - Topic 229.1 ].

Criminal Law - Topic 1450.5

Offences against person and reputation - Unlawful confinement, imprisonment or forcible seizure - Jury charge - Two police officers were charged with, inter alia, unlawful confinement - The trial judge instructed the jury that the Crown had to prove that the restraint was without lawful authority - The trial judge stated that "a police officer has a lawful authority to restrain someone he or she has arrested however, the lawful authority ends when the reason for the arrest ceases and any unnecessary further confinement is unlawful, unless consented to by the complainant. If the restraint is or becomes unlawful, then the restraint is without lawful authority." - The Saskatchewan Court of Appeal held that the trial judge's direction was correct - See paragraphs 54 and 60.

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - Two police officers were charged with, inter alia, unlawful confinement - The trial judge charged the jury - During its deliberations, the jury asked questions regarding the law as it pertained to unlawful confinement - The trial judge repeated his original instructions - A few hours later, the jury posed additional questions - Defence counsel requested that the judge modify his original instructions - However, the judge again recharged the jury in essentially the same terms as before - The Saskatchewan Court of Appeal held that as the original instruction was correct, repetition of it was necessarily also correct - See paragraphs 62 to 66.

Criminal Law - Topic 4618

Procedure - Trials - Venue or place - Change of - Reasonable probability of denial of a fair trial - Two police officers (the accused) dropped the aboriginal complainant off in the city outskirts - They were charged with unlawful confinement and assault - There was extensive pre-trial publicity - Some articles also referred to the deaths of other aboriginal men whose bodies were found in the area where the complainant claimed that he had been dropped off - One of the accused alleged that the Federation of Saskatchewan Indian Nations had been very active in Saskatoon with respect to the charges - The trial judge dismissed the accused's application for a change of venue from Saskatoon to either Swift Current or Estevan - There was no evidence of any community predisposition in Saskatoon or that prospective jurors harboured prejudice toward the accused or favour toward the complainant - The news coverage reached Swift Current and Estevan and those areas had smaller populations from which to select a jury - Challenges for cause would further ensure a fair and impartial jury - The Saskatchewan Court of Appeal upheld the trial judge's decision - See paragraphs 19 to 30.

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - Two police officers (the accused) were charged with unlawful confinement and assault - A civil action had been filed on the complainant's behalf - The trial judge permitted the accused to cross-examine the complainant on whether he sustained the injuries alleged in the claim - The accused were convicted of unlawful confinement - They argued that the trial judge erred in not permitting them to cross-examine with respect to the details of the statement of claim - The Saskatchewan Court of Appeal rejected the argument - The accused had not laid the foundation to support the right to cross-examine - The statement of claim was not signed by the complainant, but by his lawyers - The accused took no steps to establish that the contents were statements of the complainant and, as such, statements upon which they were entitled to cross-examine - Further, even if the judge erred, there was no substantial wrong or miscarriage of justice - Few facts were in dispute and the conviction did not rest on the complainant's evidence alone - See paragraphs 31 to 39.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - On a bitter cold winter morning, two police officers apprehended the aboriginal complainant, handcuffed him, drove him to a deserted area on the outskirts of the city and left him to walk back to the city wearing only light clothing - The complainant was unharmed - He had not been charged with an offence - The officers were convicted of unlawful confinement - The officers, aged 40 and 44, were married with children - They had been dismissed from the police department - They were humiliated and in financial ruin - Their actions damaged race relations in the community and affected their fellow officers - They were remorseful - The trial judge held that the officers breached their positions of trust - He held that a conditional sentence was inappropriate in the circumstances and sentenced the officers to eight months' imprisonment - The Saskatchewan Court of Appeal affirmed the sentence - See paragraph 72.

Criminal Law - Topic 5809.2

Sentencing - General - Establishment of sentencing or healing circle - On a bitter cold winter morning, two police officers apprehended the aboriginal complainant, handcuffed him, drove him to a deserted area on the outskirts of the city and left him to walk back to the city wearing only light clothing - The complainant was unharmed - He had not been charged with an offence - The officers were convicted of unlawful confinement - The officers, who were not aboriginal, sought a sentencing circle - The trial judge refused to order a sentencing circle - The officers had not accepted responsibility for the offence (they pleaded not guilty, testified that they were not responsible and intended to appeal) - There was no evidence that the aboriginal community were prepared to participate and the complainant indicated that he would not participate - Further, there was no "community" in the sense of one distinct culture - The Saskatchewan Court of Appeal upheld the decision - See paragraphs 69 to 71.

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5868

Sentence - Forcible confinement - [See Criminal Law - Topic 5720.4 ].

Evidence - Topic 4703

Witnesses - Examination - Cross-examination - Range of examination - [See Criminal Law - Topic 5415 ].

Cases Noticed:

R. v. Martin, [1964] 2 C.C.C. 391 (Sask. Q.B.), refd to. [para. 20].

R. v. Trotchie (1984), 31 Sask.R. 250 (Q.B.), refd to. [para. 20].

R. v. Fischer (G.) (1994), 119 Sask.R. 307 (Q.B.), refd to. [para. 20].

R. v. Baker (H.D.) (1997), 153 Sask.R. 192 (Q.B.), refd to. [para. 20].

R. v. Leibel (R.J.) (2000), 210 Sask.R. 131 (Q.B.), refd to. [para. 20].

R. v. Alward and Mooney (1976), 15 N.B.R.(2d) 551; 18 A.P.R. 551; 32 C.C.C.(2d) 416 (C.A.), affd. [1978] 1 S.C.R. 559; 16 N.R. 127; 18 N.B.R.(2d) 97; 26 A.P.R. 97, refd to. [para. 20].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 25].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 28].

R. v. Adams, [1973] 2 W.W.R. 371 (Sask. C.A.), refd to. [para. 58].

R. v. McKibbon (1973), 12 C.C.C.(2d) 66 (B.C.C.A.), refd to. [para. 58].

R. v. Fuhr, [1975] 4 W.W.R. 403 (Alta. C.A.), refd to. [para. 58].

R. v. Bunn (1986), 42 Man.R.(2d) 267; 29 C.C.C.(3d) 133 (Q.B.), refd to. [para. 58].

R. v. Delong (1989), 31 O.A.C. 339; 47 C.C.C.(3d) 402 (C.A.), refd to. [para. 58].

R. v. Morin (I.) (1995), 134 Sask.R. 120; 101 W.A.C. 120 (C.A.), refd to. [para. 70].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 70].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(3), sect. 497(3), sect. 498(3) [para. 51].

Counsel:

William H. Roe, Q.C., for the appellant, Hatchen;

Morris P. Bodnar, Q.C., for the appellant, Munson;

Lane Wiegers, for the respondent.

These appeals were heard on January 20, 2003, by Tallis, Cameron and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The court delivered the following decision on March 13, 2003.