R. v. Scott (E.L.), (2014) 594 A.R. 353 (PC)

• Judge: Henderson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 05, 2014
• Citations: (2014), 594 A.R. 353 (PC);2014 ABPC 159

R. v. Scott (E.L.) (2014), 594 A.R. 353 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.053

Her Majesty the Queen v. Elissa Lynn Scott (130660103P1; 2014 ABPC 159)

Indexed As: R. v. Scott (E.L.)

Alberta Provincial Court

Henderson, P.C.J.

July 29, 2014.

Summary:

The intoxicated accused was escorted out of a drinking establishment by two police officers. The intention was to write out a violation ticket under the Gaming and Liquor Act charging the accused with conducting herself in a manner detrimental to the orderly operation of a licenced premise, then send her home in a taxi. While outside of the establishment, the accused was handcuffed while the officer wrote out the ticket because she continued to be belligerent and noncompliant. After kicking at the officers, the accused was arrested, advised of her Charter rights, and charged with two counts of assaulting a peace officer. She was not released from custody until the next day. The accused alleged a violation of her rights under ss. 7, 9, 10 and 12 of Charter. She alleged that she was denied her right to counsel, was not advised of the reason for her detention, was arbitrarily detained, and that the police used excessive force. The accused sought either a stay of proceedings (s. 24(1)) or exclusion of the evidence of the alleged assaults (s. 24(2)).

The Alberta Provincial Court held that: (1) the accused's s. 10(b) right to counsel was infringed when she was not promptly advised of her right to counsel upon her initial detention in the establishment; (2) her s. 7 rights were violated when the police used excessive force by grabbing her ponytail to escort her down the street; and (3) she was arbitrarily detained (s. 9) where she was held without release for longer than was reasonably required. The court declined to exclude the assault evidence under s. 24(2). Whether a stay of proceedings would be appropriate was deferred to the end of the trial on the merits.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force - [See Police - Topic 3065 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The intoxicated accused was removed from a drinking establishment by police for her conduct - The police intended to issue a violation ticket under the Gaming and Liquor Act, but the accused's attempt to assault two police officers by kicking them led to her arrest - The decision was made not to release her until she sobered up some as, given her aggressive and belligerent behaviour, she posed a risk of re-offending or harming herself - The accused was taken before a Justice of the Peace to speak to release, but declined to do so as she wished to consult with a lawyer - Rather than releasing the accused, she was detained in the remand centre for a further period of time - The accused was not released until 36 hours after first being taken into custody and 30 hours after being processed at the remand centre - The Alberta Provincial Court held that the accused's initial detention at the police station was warranted - However, by the time she was presented to the remand centre her level of sobriety (and her bizarre behaviour) had improved such that she should have been released - The accused's detention for a period more than was reasonably necessary constituted an arbitrary detention contrary to s. 9 of the Charter - See paragraphs 128 to 152.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - The Alberta Provincial Court stated that "when a suspect is detained he or she must be advised promptly in 'clear and simple language' of the reasons for the detention. ... it is necessary to consider the substance of what the suspect could reasonably be supposed to have understood rather than the formalism of the precise words used." - See paragraph 103.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - The intoxicated accused was escorted out of a drinking establishment by two police officers - The intention was to write out a violation ticket under the Gaming and Liquor Act charging the accused with conducting herself in a manner detrimental to the orderly operation of a licenced premise, then send her home in a taxi - While outside of the establishment, the accused was handcuffed while the officer wrote out the ticket because she continued to be belligerent and noncompliant - After kicking at the officers, the accused was arrested, advised of her Charter rights, and charged with two counts of assaulting a peace officer - The Alberta Provincial Court held that the failure to advise the accused of her right to counsel upon her detention inside the establishment infringed her s. 10(b) Charter rights - See paragraphs 107 to 110.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The intoxicated accused was escorted out of a drinking establishment by two police officers - The intention was to write out a violation ticket under the Gaming and Liquor Act charging the accused with conducting herself in a manner detrimental to the orderly operation of a licenced premise, then send her home in a taxi - While outside of the establishment, the accused was handcuffed while the officer wrote out the ticket because she continued to be belligerent and noncompliant - After kicking at the officers, the accused was arrested, advised of her Charter rights, and charged with two counts of assaulting a peace officer - She was not released from custody until 36 hours after her initial detention - The Alberta Provincial Court held that: (1) the accused's s. 10(b) Charter right to counsel was infringed when she was not promptly advised of her right to counsel upon her initial detention in the establishment; (2) her s. 7 rights were violated when the police used excessive force by grabbing her ponytail to escort her down the street; and (3) she was arbitrarily detained (s. 9) where she was held without release for longer than was reasonably required - The court declined to exclude the assault evidence under s. 24(2) - The s. 10(b) breach at the time of initial detention was relatively minor and an understandable oversight - The grabbing of the accused's ponytail was more serious, but still at the lower end of the spectrum - The most serious Charter infringement was the arbitrary detention by overholding the accused - However, it was neither "brazen" nor "flagrant" - It occurred through inadvertence - Weighing the effect of the Charter breach on the accused with society's interest in adjudicating the case on the merits, the court declined to exclude the assault evidence under s. 24(2), as admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 165 to 195.

Police - Topic 2215

Duties - General duties - To make notes (incl. of incidents) - The Alberta Provincial Court stated that the "police have a duty to maintain accurate, detailed and comprehensive notes of their investigations" and that the failure to do so "can have an impact on the credibility of a police witness" - An accused charged with two counts of assaulting a peace officer complained that the two officers' notes were not comprehensive enough respecting her level of impairment and the circumstances of her alleged attempts to kick the officers - The court stated that "Where police officers have testified to important facts which are not recorded in their police notebooks it is necessary to consider whether the evidence is credible and reliable. However, the failure to make a notebook entry of a specific fact does not necessarily lead to a conclusion that the police officer lacks credibility or that his or her evidence is unreliable. The lack of one or more notebook entries is simply one of many factors which must be taken into account as part of the fact finding process and will be considered in this case." - See paragraphs 26 to 30.

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - The intoxicated female accused was escorted out of drinking establishment by two police officers on objectively reasonable grounds that she was conducting herself in a manner detrimental to the orderly operation of a licenced premise, an offence under the Gaming and Liquor Act - Once outside, the officers' intention was to give the accused a violation ticket and send her home in a taxi - As the accused continued to be belligerent, uncooperative and noncompliant with the officer's directions, she was placed in handcuffs while the ticket was written up - The accused alleged that the police used excessive force prior to, during and after her arrest - The Alberta Provincial Court held that handcuffing the accused, in these circumstances, did not constitute excessive force infringing the accused's s. 7 Charter rights - The court stated that "police have a duty to control accused persons and detained persons for the purpose of ensuring the safety of the public and also the safety of the subject. ... Only unusual circumstances can justify the use of handcuffs where police have detained a subject for the purpose of issuing a violation ticket under the Gaming and Liquor Act or some other legislation. However, where the conduct of the subject is sufficiently aggressive, handcuffs may be warranted." - In these unusual circumstances, handcuffing the accused was justifiable - The police did use excessive force when they escorted the resistant accused outside of the establishment by grabbing her by her ponytail, forcing her head down - See paragraphs 111 to 127.

Cases Noticed:

Schaeffer et al. v. Wood et al., [2013] 3 S.C.R. 1053; 452 N.R. 286; 312 O.A.C. 1, refd to. [para. 26].

R. v. Davidoff (A.) (2013), 560 A.R. 252; 2013 ABQB 244, refd to. [para. 27].

R. v. Chenard (M.D.), [2014] A.R. TBEd. JA.030; 2014 ABPC 352, refd to. [para. 28].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 103].

R. v. Mohamed (S.) (2013), 566 A.R. 58; 597 W.A.C. 58; 2013 ABCA 406, refd to. [para. 103].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 107].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88, refd to. [para. 111].

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 2005 ABCA 81, refd to. [para. 112].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317, refd to. [para. 112].

R. v. Davis (P.W.) (2013), 542 A.R. 100; 566 W.A.C. 100; 2013 ABCA 15, appeal allowed on other grounds (2014), 453 N.R. 117; 2014 SCC 4, refd to. [para. 113].

R. v. Micks (K.A.) (2014), 592 A.R. 207; 2014 ABPC 140, refd to. [para. 119].

R. v. Waterfield, [1963] 1 All E.R. 659, refd to. [para. 119].

R. v. Vidovic (M.) (2013), 576 A.R. 228; 2013 ABPC 310, refd to. [para. 134].

R. v. Spracklin (V.E.) (2013), 551 A.R. 323; 2013 ABPC 55, revd. (2014), 582 A.R. 330; 2014 ABQB 88, refd to. [para. 149].

R. v. Smith (F.A.) (2005), 386 A.R. 219; 2005 ABPC 202, refd to. [para. 149].

R. v. Korecki (K.J.) (2007), 436 A.R. 336; 2007 ABPC 321, refd to. [para. 149].

R. v. Sanders (S.A.), [2010] A.R. Uned. 755; 2010 ABPC 342, refd to. [para. 149].

R. v. Sturko (J.S.) (2013), 567 A.R. 386; 2013 ABPC 211, refd to. [para. 149].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 167].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 170].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14 (C.A.), refd to. [para. 171].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para.176].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 497(1.1) [para. 136].

Counsel:

L. Marr, for the Crown;

T. Engel and A. Hart-Dowhun, for the accused.

This application was heard on May 20-23 and 26 and June 5, 2014, at Edmonton, Alberta, before Henderson, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 29, 2014.