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.
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, 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.