R. v. Sturko (J.S.), (2013) 567 A.R. 386 (PC)

• Judge: Richardson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: Tuesday April 02, 2013
• Citations: (2013), 567 A.R. 386 (PC);2013 ABPC 211

R. v. Sturko (J.S.) (2013), 567 A.R. 386 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.050

Her Majesty the Queen v. Jo-Ann Sharon Sturko (071561179P1; 2013 ABPC 211)

Indexed As: R. v. Sturko (J.S.)

Alberta Provincial Court

Richardson, P.C.J.

August 9, 2013.

Summary:

The accused was charged with refusing to provide a breath sample into an approved screening device and assault of a peace officer. She alleged that the police subjected her to "disproportionate, unreasonable, and unnecessary" force, in violation of her ss. 7 and 12 Charter rights. She also alleged a s. 9 Charter violation based on the police decision not to release her by way of a promise to appear, but instead to hold her in police custody for a further 14 hours and to subject her to a bail hearing, notwithstanding that she did not have a criminal record. The accused sought a judicial stay or an acquittal as a remedy for these violations.

The Alberta Provincial Court held that there were no Charter violations and found the accused guilty of both offences.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force (incl. assault) - Police had driven Sturko to her residence, intending to release her on a promise to appear following her arrest for refusing to provide a breath sample into an approved screening device - Sturko had been resistant and defiant during that investigation - When an officer asked Sturko to sign the promise to appear, she claimed that she could not see the document - She grabbed the document and headed toward her back door in order to activate a motion sensor light - The officer ordered Sturko to return to the front of the police car - She did not comply - The officer grabbed Sturko by the arm - Sturko struck the officer on the shoulder - She was arrested for assaulting a peace officer - Sturko alleged that two officers threw her against the hood of the police car, handcuffed her, and then shoved her backward toward the open door of the back seat, causing her to hit her head on the door frame - Sturko brought a Charter application, alleging that her ss. 7 and 12 rights were violated when the police subjected her to "disproportionate, unreasonable, and unnecessary" force - The Alberta Provincial Court held that the officers were acting in the administration and enforcement of the law, and used only that force that was reasonably necessary to secure the handcuffs - Sturko had demonstrated that she was a safety concern and that she was not compliant with verbal commands - The force used to push Sturko into the back seat of the police car was objectively reasonable, necessary in the totality of the circumstances, and proportional to the events of the arrest and what led up to the arrest - See paragraphs 64 to 84.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Sturko was arrested for refusing to provide a breath sample - She was resistant and defiant toward police during the investigation - An officer drove Sturko to her residence, intending to release her on a promise to appear - When he asked Sturko to sign the promise to appear, she claimed that she could not see the document - She grabbed the document and headed toward her back door in order to activate a motion sensor light - In an attempt to prevent Sturko from walking away, the officer grabbed Sturko by the arm - Sturko struck the officer on the shoulder - She was arrested for assaulting a peace officer and taken to the Arrest Processing Unit (APU) - Sturko claimed that her s. 9 Charter rights were violated when the officer took her to the APU instead of releasing her on a promise to appear - The Alberta Provincial Court held that Sturko was not arbitrarily detained - It was necessary in the public interest for Sturko to be detained after she struck the officer (Criminal Code, s. 497(1.1)) - The officer's decision to take her to the APU was not arbitrary given that his reasons for doing so related to Sturko's health and emotional state, her comprehension of the release documents, public safety in reasonably wanting conditions on her release, and wanting to diffuse the situation by having a different officer deal with her - See paragraphs 42 to 47.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Sturko was arrested for refusing to provide a breath sample shortly after 1:00 a.m. - She was resistant and defiant toward police during the investigation - An officer drove Sturko to her residence, intending to release her on a promise to appear - When he asked Sturko to sign the promise to appear, she claimed that she could not see the document - She grabbed the document and headed toward her back door in order to activate a motion sensor light - In an attempt to prevent Sturko from walking away, the officer grabbed Sturko by the arm - Sturko struck the officer on the shoulder - She was arrested for assaulting a peace officer and taken to the Arrest Processing Unit (APU) at 3:00 a.m. - Around 4:02 a.m., at her request, she was taken to hospital to be treated for a headache - She was discharged from the hospital at 7:40 a.m., returned to the APU, had a bail hearing at 3:47 p.m. and was then released - Sturko claimed that her s. 9 Charter rights were violated when police kept her in custody for 14 hours before she had a bail hearing - The Alberta Provincial Court held that there was nothing arbitrary about Sturko's detention between the time that she was taken to the APU following her arrest and when she returned there after being treated at the hospital - At issue was the 7.5 hours that she spent at the APU before her bail hearing - The burden was on Sturko to demonstrate that her detention was arbitrary, and the evidence she relied on was solely the amount of time she spent in the APU - Against that evidence was the Crown's evidence that Sturko was not "administratively forgotten" and that police had followed their internal policy for the release of an arrested person - Sturko's detention was not arbitrary - See paragraphs 48 to 63.

Civil Rights - Topic 3840.5

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Excessive force by police - [See Civil Rights - Topic 1410.3].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Civil Rights - Topic 1410.3].

Police - Topic 3085

Powers - Arrest and detention - Detention in the public interest - [See first Civil Rights - Topic 3603].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 8].

R. v. Creig (D.A.), [2012] A.R. Uned. 91; 2012 ABQB 79, refd to. [para. 9].

R. v. Collins (1987), 74 N.R. 276 (S.C.C.), refd to. [para. 9].

R. v. Russell (D.K.), [2008] A.R. Uned. 522; 2008 ABPC 166, refd to. [para. 10].

R. v. Gunsch (B.-S.), [2013] A.R. Uned. 293; 2013 ABPC 104, refd to. [para. 11].

R. v. Davis (P.W.) (2013), 542 A.R. 100; 566 W.A.C. 100; 2013 ABCA 15, refd to. [para. 13].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 18].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 39].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 39].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 40].

R. v. Cayer et al. (1988), 28 O.A.C. 105; 66 C.R.(3d) 30 (C.A.), refd to. [para. 40].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 57].

R. v. Sanders (S.A.), [2010] A.R. Uned. 755; 2010 ABPC 342, refd to. [para. 58].

R. v. Ameyaw (D.O.) (2011), 512 A.R. 70; 2011 ABPC 132, refd to. [para. 62].

R. v. McLinton, 2006 ONCJ 437, refd to. [para. 65].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 67].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 86].

Counsel:

P. Davies, for the Crown;

C. Luchak, for the accused.

This matter was heard on December 17-20, 2012, February 15 and April 2, 2013, before Richardson, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Edmonton, Alberta, on August 9, 2013.