R. v. Whatcott (W.), (2014) 464 Sask.R. 105 (PC)

• Jurisdiction: Saskatchewan
• Court: Provincial Court of Saskatchewan (Canada)
• Judge: Beaton, P.C.J.
• Citation: (2014), 464 Sask.R. 105 (PC),2014 SKPC 215
• Date: 22 December 2014
• Subject Matter: CIVIL RIGHTS,CRIMINAL LAW

R. v. Whatcott (W.) (2014), 464 Sask.R. 105 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.017

Her Majesty the Queen v. William Gary Whatcott and Peter Labarbera

(Information No. 24283633; 2014 SKPC 215)

Indexed As: R. v. Whatcott (W.)

Saskatchewan Provincial Court

Beaton, P.C.J.

December 22, 2014.

Summary:

The two accused were self-described Christian activists. They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre. The University was concerned that some of the accused's material violated a University policy. University personnel had to seek the assistance of security officers and the police to have the accused removed from the property. The accused were charged with mischief (Criminal Code, s. 430(1)(c)).

The Saskatchewan Provincial Court found the accused not guilty.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The accused (Whatcott and LaBarbera) were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - University personnel had to seek the assistance of security officers and the police to have the accused removed from the property - The accused were charged with mischief (Criminal Code, s. 430(1)(c)) - Section 430(7) of the Criminal Code stated that: "No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information." - The defence argued that Whatcott's entire purpose was to communicate information, whereas the Crown argued that this provision did not apply as a defence to the act of refusing to leave the University when requested to do so - The Saskatchewan Provincial Court stated that "... s. 430(7) may apply as a defence to interference with private property depending on the manner of the communication. ... While the university does have the right to make rules which control its property, this does not necessarily mean that its property is private in the way that a residence is private. A number of Charter cases ... demonstrate that s. 2(b) may apply to universities in different ways. In particular, ... a university campus is 'a locale one would expect to facilitate and encourage free and open intellectual discussions.' I find that individuals have the right to attend university property to communicate subject to the restrictions mentioned in Tremblay [2010 Ont. C.A.]. I find that the purpose of Mr. Whatcott and Mr. LaBarbera attending the University of Regina was to communicate information and their actions were passive and non-aggressive. Therefore, notwithstanding that the University may be private property, ... s. 430(7) can be used by the accused as a defence to a finding of mischief by interfering with university property as they had the right to communicate in a peaceful manner on university property." - See paragraphs 34 to 45.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The two accused, Whatcott and LaBarbera, were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - University personnel had to seek the assistance of security officers and the police to have the accused removed from the property - The accused argued that they were arbitrarily detained in violation of their s. 9 Charter rights because: (1) they were originally arrested with an offence that was not in the Criminal Code; and (2) they were held at the station too long before being released - The Saskatchewan Provincial Court noted that LaBarbera was held for longer than Whatcott as a result of his United States citizenship, not as a result of any police misconduct - Assuming that Whatcott's estimate of two hours' detention after being charged with mischief was correct, this did not meet the standard for a breach - However, where the arresting officers arrested the accused under a provision which had been repealed approximately a year earlier, there was no lawful basis for the arrest - However, no prejudice was shown to have been caused by the Charter violation, beyond perhaps a delay in being advised of the correct charge - Further the officers clearly had the power to arrest the accused for mischief at the time of their arrest, and the arrest was done in good faith - The officers also remedied the mistake as soon as they realized their error, and properly provided the accused with their Charter rights immediately - On the facts, a stay of proceedings would be grossly disproportionate - No remedy was warranted - See paragraphs 74 to 83.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application - General - Meaning of "government" in s. 32(1) - The two accused were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - The Saskatchewan Provincial Court held that the actions of University administrators, in deciding that Whatcott's actions were contrary to policy, asking him to leave and, when he refused, seeking police assistance to have him removed from University property, could be characterized as governmental action and therefore subject to Charter scrutiny - The accused's actions were protected by s. 2(b) of the Charter and the infringement on this right was not permitted under s. 1 of the Charter - While the desire to protect students from feeling discriminated against was a sufficiently pressing and substantive objective, the accused's removal, in order to protect students from the accused's message, did not represent a minimal impairment on freedom of expression - The University's response was disproportionate to the peaceful distribution of flyers and was not reasonable and demonstrably justified - Given these findings, the court held that the accused were acting with legal justification under s. 429(2) of the Criminal Code - See paragraphs 56 to 69.

Civil Rights - Topic 8370

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - When denied - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - [See second Criminal Law - Topic 2254 ].

Criminal Law - Topic 2247

Wilful acts respecting property - Mischief - Elements - Obstruction or interference with use, enjoyment or operation of property - The two accused were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - University personnel had to seek the assistance of security officers and the police to have the accused removed from the property - The accused were charged with mischief (Criminal Code, s. 430(1)(c)) - The Saskatchewan Provincial Court found the accused not guilty - The court was not convinced that the actus reus of the offence was committed when the accused refused to leave and resources were used to remove them - Extra security was not hired - "At best, security officers were directed from patrolling other areas of the campus" - There was no evidence that their services were required elsewhere - "The protestors did not interfere with anyone's access to the university or its buildings. ... The fact that the university personnel had to seek the assistance of security officers and the police to have the accused removed from the property does not, on its own, create the interference or interruption with property which is required to be proven in this case. If that was the case, any time security officers dealt with difficult or unruly individuals, such individuals could be charged with mischief. Something more than simply being removed by security is required to prove the actus reus of mischief." - See paragraphs 21 to 29.

Criminal Law - Topic 2249

Wilful acts respecting property - Mischief - Mens rea - The two accused, including Whatcott, were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - University personnel had to seek the assistance of security officers and the police to have the accused removed from the property - The accused were charged with mischief (Criminal Code, s. 430(1)(c)) - The Saskatchewan Provincial Court held that Crown had not proved the actus reus of the offence - However, the accused had the necessary mens rea - The court stated that "... both accused were at the University to promote and share their beliefs on abortion and homosexuality. Both are activists. Mr. Whatcott had been asked to leave universities and had been charged due to his activities on previous occasions. Mr. Whatcott had ensured that the media was aware that he would be demonstrating at the University. In fact, the media was already present when they arrived on campus. Both accused discussed this demonstration. I find that both accused were prepared to deal with the University administration, security officers, and police in order to convey their message. They both refused to leave the property when requested to do so and they were prepared to be arrested if necessary. Mr. Whatcott testified that he was not surprised to be arrested. ... [B]oth accused intended or did subjectively foresee the resulting consequences of their actions." - See paragraphs 30 to 33.

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Justification or colour of right - [See Civil Rights - Topic 8304 ].

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Justification or colour of right - The two accused, including Whatcott, were self-described Christian activists - They attended at the University of Regina and protested at an outdoor plaza in front of the Riddell Centre - The University was concerned that some of the accused's material violated a University policy - University personnel had to seek the assistance of security officers and the police to have the accused removed from the property - The accused were charged with mischief (Criminal Code, s. 430(1)(c)) - Section 429(2) provided that: "No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right." - The Saskatchewan Provincial Court found that Whatcott believed that he had a right to protest at the University of Regina under s. 2(b) of the Charter - Given that he had been successful before various courts in the past, this belief was reasonable - He did not think that the policy applied to him, or perhaps to anyone - However, the court held that the colour of right defence did not include a mistake of criminal law - It followed that a mistake of constitutional law was also not a defence under s. 429(2) - Whatcott's belief was a belief in the state of the law - Further, colour of right did not apply to mistakes of law of this nature - See paragraphs 70 to 73.

Criminal Law - Topic 2256

Wilful acts respecting property - Mischief - Defences - Obtaining or communicating information - [See Civil Rights - Topic 1803 ].

Cases Noticed:

R. v. Whatcott (W.) (2002), 225 Sask.R. 205; 2002 SKQB 399, refd to. [para. 4].

R. v. Whatcott (W.) (2011), 514 A.R. 154; 2011 ABPC 336, affd. (2012), 538 A.R. 220; 2012 ABQB 231, appld. [para. 4].

R. v. Maddeaux (L.) (1997), 98 O.A.C. 358; 115 C.C.C.(3d) 122 (C.A.), refd to. [para. 21].

R. v. Green (M.) (2014), 309 Man.R.(2d) 69; 2014 MBPC 42, dist. [para. 22].

R. v. Day, [2002] N.J. No. 353 (N.L.T.D.), refd to. [para. 23].

R. v. Waters (1990), 81 Sask.R. 126; 54 C.C.C.(3d) 40 (Q.B.), refd to. [para. 24].

R. v. Wagner, [2010] O.J. No. 5018 (C.J.), refd to. [para. 25].

R. v. Tan (A.L.) et al. (1992), 15 B.C.A.C. 231; 27 W.A.C. 231 (C.A.), refd to. [para. 26].

R. v. Freeman (J.) et al. (2009), 334 Sask.R. 15; 43 W.C.B.(2d) 205; 2009 SKPC 36, refd to. [para. 27].

R. v. St. Pierre (1987), 61 Sask.R. 80 (C.A.), refd to. [para. 32].

R. v. Bodnarek (D.J.) (2001), 224 Sask.R. 124 (Prov. Ct.), refd to. [para. 32].

R. v. Tremblay (R.) (2010), 264 O.A.C. 325; 256 C.C.C.(3d) 389; 2010 ONCA 469, refd to. [para. 36].

R. v. Dooling (R.G.) (1994), 124 Nfld. & P.E.I.R. 149; 384 A.P.R. 149; 94 C.C.C.(3d) 524 (Nfld. T.D.), refd to. [para. 36].

R. v. Creaghan (1982), 1 C.C.C.(3d) 449 (Ont. C.A.), refd to. [para. 47].

R. v. Dorosh (G.) (2004), 241 Sask.R. 180; 313 W.A.C. 180; 183 C.C.C.(3d) 224; 2003 SKCA 134, refd to. [para. 48].

R. v. Manuel (N.V.), [2008] C.N.L.R. 389; 254 B.C.A.C. 69; 426 W.A.C. 69 (C.A.), refd to. [para. 49].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 57].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 57].

Harrison v. University of British Columbia; Connell v. University of British Columbia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 59].

Pridgen v. University of Calgary (2012), 524 A.R. 251; 545 W.A.C. 251; 258 C.R.R.(2d) 134; 2012 ABCA 139, refd to. [para. 60].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 65].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 66].

R. v. Montague (W.B.) (2010), 260 O.A.C. 12; 2010 ONCA 141, refd to. [para. 72].

R. v. Poletz (R.B.) (2014), 433 Sask.R. 155; 602 W.A.C. 155; 112 W.C.B.(2d) 211; 2014 SKCA 16, appld. [para. 75].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 77].

R. v. Gunn (P.B.) (1997), 193 A.R. 222; 135 W.A.C. 222; 6 C.R.(5th) 405 (C.A.), refd to. [para. 79].

R. v. Houle (1985), 66 A.R. 156; 24 C.C.C.(3d) 57 (C.A.), refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, sect. 430(7) [para. 34].

Counsel:

James Fitz-Gerald, for the Crown;

Michael Weger, for the accused.

This case was heard by Beaton, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on December 22, 2014.