On the Question of The Arrest

So, let us begin with the basics, and I am not sorry for being matronizing, as none of this should have happened at all.

There are three types of offences in the Canadian Criminal Code:

1) Summary Offences

2) Hybrid Offences

3) Indictable Offences.

The nature of the charge in R v. Storrey, namely aggravated assault, is very important, as it is purely an indictable offence. The nature of the offence is, indeed, what the case is actually about. We can quote directly, just a little bit:

At trial it was contended that the arrest and detention of the appellant contravened the right guaranteed to him by s. 9 of the Charter.  That section provides that: "Everyone has the right not to be arbitrarily detained or imprisoned".  The trial judge then conducted a voir dire to determine whether there had been a breach of s. 9 of the Charter.  Unfortunately, the reasons he gave at the conclusion of the proceeding indicate some confusion on his part.  The appellant was arrested without a warrant on a charge of aggravated assault.  Therefore, the basis for his arrest is to be found within s. 450(1) (now s. 495(1)) of the Criminal Code, R.S.C. 1970, c. C-34.  That section provides that a peace officer may arrest without a warrant a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence.  Nevertheless, the trial judge stated that the arrest was unlawful because it did not comply with the requirements of s. 450(2) of the Criminal Code.  That section was inapplicable in this case.  It only applies to an offence which is either a summary conviction offence, a hybrid offence or an indictable offence listed in s. 483 (now s. 553) of the Code, which list does not include aggravated assault. 

Well, if we’re to make a simple deduction from this case, it would be that the Supreme Court would agree that the arrest would have been unlawful (and the accused would have had his s. 9 rights infringed upon) if the charge was a hybrid offence, like criminal harassment. Oops?

Let us revise the language so that it is applicable to the situation at hand:

On review it was concluded that the arrest and detention of the appellant did not contravene the right guaranteed to her by s. 9 of the Charter.  That section provides that: "Everyone has the right not to be arbitrarily detained or imprisoned".  Unfortunately, the reasons he gave at the conclusion of the review indicate some confusion on his part.  The appellant was arrested without a warrant on a charge of criminal harassment.  Therefore, the basis for her arrest is to be found within s. 450(2) (now s. 495(2)) of the Criminal Code, R.S.C. 1970, c. C-34.  That section provides that a peace officer may not arrest without a warrant a person who has committed a hybrid offence, in any case where he believes on reasonable grounds that the public interest, having regard to all the circumstances may be satisfied without so arresting the person, and he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. Nevertheless, the investigator stated that the arrest was lawful because it complied with the requirements of s. 450(1) of the Criminal Code.  That section was inapplicable in this case.  It only applies to an offence which is an indictable offence, which does not include criminal harassment. 

What does this actually mean, though? Well, this is the entirety of 495(2), which is clearly meant to restrict the arresting authority of police, and which has my emphasis added:

Limitation
(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

One will note the importance of the logic operator, and. I have some academic background in law, but my actual degree is in mathematics, so I can be pretty oppressive in my enforcement of logic. Any statement in the form (A and B) is true if and only if both A is true and B is true. What that means is that the statute reduces to the necessity of the officer to prove I was a flight risk, which means producing positive evidence to suggest as much, and which was never even contemplated - the discussion is merely of “reasonable grounds”, which is never coherently defined, but clearly assumed to be in the inapplicable context of an indictable offence.

If this discussion comes as a shock to you then I am sorry, but it simply demonstrates your incompetence - and perhaps demonstrates the lawlessness defining standard arrest procedures both in windsor and throughout the country. The reality is that this is what the law actually says about the matter, whatever day-to-day policing actually is.

What that means is that the officer had two lawful choices in how to approach the situation:

1) he could have issued a summons for me to appear in court or

2) if he insisted on arresting me on a hybrid offence, and could not demonstrate a flight risk, he’d need to get a warrant first.

Simply claiming “reasonable grounds” to make an arrest on a hybrid offence is in fact unlawful in this country, whether it happens frequently or not.

Now, I have attempted to find some actual relevant jurisprudence around s. 495(2) and have not found much at canlii; it seems to be that the issue doesn’t come up much, hopefully because canada is a free society, so people don’t get arrested on bullshit charges or arbitrarily detained very often. My faith in the system is shaken, but not broken; I am going to hope that the lack of precedence around 495(2) is a positive signal that Canada is indeed still a free country, after all.

Nonetheless, I did find the following statement produced in passing within R. v. Boudreault 2018 SCC 58, in an entirely unrelated context, which upholds the logic operator; this emphasis is the court’s:

Assuming (without deciding) that warrantless arrest can properly be used as a means to compel attendance in these circumstances, I note that this can occur only if the peace officer has reasonable grounds to believe that it is in the public interest to arrest the person and that the person will fail to attend court (in accordance with s. 495(2)).  In determining whether arrest is in the public interest, the peace officer must consider whether arrest is necessary to establish the identity of the person, to secure or preserve evidence, or to prevent the continuation of the offence or the commission of future offences. 

There is simply absolutely no indication that anybody involved in the arrest had any understanding of any of this; all evidence suggests that they were relying on a completely inapplicable precedent intended for strictly indictable offences, and perhaps do so on a day-to-day basis. This is actually quite startling.

But, what of these “reasonable grounds”, anyways?

I am rather baffled by what appears in the report. The investigator made the argument that the arrest was based on reasonable grounds that I was communicating with the property owner - which is clear enough, and really not in dispute. The emails exist, and I’ve never denied sending them. So, there are clearly reasonable grounds to conclude that I sent a bunch of emails to the complainant. Ok.

However, that's a gross misinterpretation of the statute. Reasonable grounds, in context, if they were relevant, would not be related to the fact of communication, but to the question as to whether there was any basis for fear. So, the officer would need to demonstrate that he thought there was a convincing reason I might harm this woman, and there clearly was no such thing.

Again, let me point you to the statute:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

So, the thing that's against the law is to scare somebody - not to communicate with them. As we live in a free society, there's no law in canada against repeatedly communicating with people when they've asked you not to, nor is the request to ask you to stop in any way meaningful or relevant, if the communication does not reasonably invoke fear. That is essentially the definition of free speech.

Subsection (2) is a list of ways you can scare somebody, but these behaviours are not criminalized, themselves, outside of the context of being scary.

So, repeatedly communicating with somebody with the intent of scaring them is indeed harassment, under the law; repeatedly communicating with somebody with the intent to sue them, or the intent to annoy them, or the intent to rent property from them is not, and hopefully never will be.

Reasonable grounds consequently consists of evidence that i'm scary, not evidence of communication. It is blatantly clear that no such evidence existed; at no point did i communicate any sort of threat of harm, and i have no criminal record. It is rather clear that no such reasonable grounds existed at all. Worse, to suggest that the arrest was justified on reasonable grounds due solely to evidence of unwanted communication is both disingenuous and grossly incompetent; this is exactly why warrants exist, and exactly why the statute demands them before making an arrest of this nature.

So much for “reasonable grounds”. Pfft.