i probably posted this.

let's review.

this was the document i filed with my review, minus a few screenshots.

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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.

I must insist that the question of the legality of the arrest be revisited.

Are the Officer’s Words Credible?

When a witness makes a demonstrably false claim, their credibility is generally called into question. I have clearly demonstrated that the officer lied about the time of the call, positioning it at 6:08 PM, when the timestamp on the audio file is 3:56 AM. I was also able to pull out an incorrect address in the report on the neighbour. If the officer is going to lie about the time of the call, why would you believe anything else that he says? Further, if the department is going to uphold a lie in the face of clear evidence to the contrary, in an apparent attempt at a cover-up, why would you believe anything else that the department says?

I can resend the file, if it’s been lost. For now, here is a screenshot of the voicemail, indicating the time of reception.

Regarding the Question of Intimidation and Harassment By The Officer

I documented three occurrences of harassing behaviour by the officer, leading up to a series of legally incoherent threats and an eventual illegal arrest and arbitrary detention. However, the report did not make any attempt to put the situation into context. Given the clear illegality of the arrest, and apparent cluelessness of the department in general, I must insist that these accusations be properly investigated.

Regarding the Question of Transphobic Bias

A key part of my complaint was a feeling that the officer was behaving out of a transphobic bias. By referring to me using masculine pronouns, despite my clear indication that I have a female identity, the report perpetuates the bias that I requested be examined, leaving me more concerned about a bias than I was to begin with. While an explanation for this does appear in the report, it hardly seems credible; it is rather quite readily apparent that the insistence on masculine pronouns is intended to insult and degrade me. There is really no other way to explain it.

For the record, I have been on high potency hormones for nearly ten years. I am not at the start of a transition, but functionally through it. My appearance is unambiguously female, and the continued claims to the contrary are not grounded in empirical reasoning but simply in a continued insistence on prejudicial bias. I’m a girl, and it is clear to all who have eyes.

The report really just confirms my suspicion, so I must insist that this question be more thoroughly examined.

Regarding the Question of The Foot in The Door

My recollection of the situation is clearly rather different than the officer’s, but the officer nonetheless clearly acknowledges placing a foot in the door; rather than deny the encounter, he has made up an excuse to justify it, one that doesn’t even contradict the accusation. I will deny that I yelled through the door and rather insist upon my recollection of events, which was that I asked him to move his foot multiple times (reminding him that he did not have a warrant) and was unable to close the door until he left. Why, exactly, would I file a false complaint, in context? Given that the officer’s credibility is in question, his recollection of events should be taken with a grain of salt. I must insist that these claims have been substantiated by the officer’s own statements - that he acknowledges preventing me from closing the door, whatever his excuse, and should be held accountable for it.

Regarding the Question Of The Badge Number

The reasoning utilized in the report that I must have been provided with a badge number because I heard part of it is facile to say the least. Again - what would the purpose of filing a false report of this nature be? If I had the badge number, would I not have provided it? To suggest this is unsubstantiated is disingenuous; the fact that i got a few of the numbers correct actually substantiates the claim pretty strongly. I must insist this be rethought.

About The Phone

I initially responded to the voice message on the morning of Sept 12 (when i woke up), and received the following response at 9:48, and fairly quickly iirc. If the phone was a loaner, that would mean that it was returned to the office and lent back out again between the hours of 4:00 AM and 9:48 AM - a stretch, if you ask me. I must insist that this question be revisited.

and, you will note my clock is military - 09:48 is 9:48 am.

About The Officer’s Understanding Of The Law

My statements were clear - I asked the officer to define what harassment is, under a clear concern that he hadn’t the slightest actual clue, and he specifically referred to the idea of being “annoying”, which is simply objectively false. This was a few weeks after he tried to tell me that nuisance does not exist under the criminal code. While I understand that the officer is neither a lawyer nor an encyclopedia, one would expect that he would at least look up a law before he tries to make an arrest, or get a warrant if he’s not sure, and at least take it to heart when somebody tries to explain something to him, which I did rather clearly. The cliché is that there is a difference between ignorance and stupidity; we are all ignorant of many things, it is a natural condition of existence, but we are only stupid when we refuse to acknowledge our ignorance. This would not have happened had he simply listened to me, and made an attempt to understand me. The report attempts to frame the issue around the officer’s obligations to explain the law to a civilian, which is just a red herring - the issue at hand is not whether I understand the law, but whether the officer does; this is an officer that aggressively pursued a completely ridiculous interpretation of the statute, with no interest in the truth of the matter. Such an officer is a clear and present danger to civilians, as he operates on ideology rather than on evidence or reason. I think I explained this point clearly enough at the top of the page, and would insist that the issue be revisited - does this officer understand the law well enough to continue being an officer? Is he capable of learning it? This is the important question here, not whether he tried his best to explain a statute to somebody with a math degree and three years worth of law credits, and that understands it better than he does.

The Emails

I will attach the emails that I have in a separate file. Nobody ever asked me for them.

Conclusion

While the report is unreasonable, it is also incorrect and it is the correctness basis of review that I wish to draw a stricter attention to.

1) The main issue at hand, in hindsight, is the question of whether the arrest was legal, and this was not dealt with correctly.

2) There was no attempt to determine whether the officer’s behaviour constituted intimidation or harassment.

3) I believe that Count #1 remains unclear and requires further investigation, although the tone of the report further substantiates it.

4) I believe that the report substantiates count #2.

5) I believe that the report substantiates count #3.

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but, it was "reasonable" because it "cited case law".

right.