Alberta’s top court reminds trial judges to follow Criminal Code, jurisprudence in rulings

By Christopher Guly

Law360 Canada (November 8, 2022, 1:25 PM EST) -- When making their rulings, trial judges need to carefully follow both Criminal Code provisions regarding arrest without a warrant by a police officer and jurisprudence on the matter, the Alberta Court of Appeal held in a decision released on Nov. 1.

In R. v. Veen 2022 ABCA 350, the court allowed the Crown’s appeal on a decision by Alberta provincial court Judge M.V. De Souza, in R. v. Veen 2019 ABPC 55, and upheld by the summary conviction appeal judge, Alberta Court of King’s Bench Justice W.P. Sullivan, in R v. Veen, 2020 ABQB 99.

Judge De Souza ordered a stay of proceedings against Aaron Keegan Veen, who was charged in 2018 with refusing to provide a breath sample after police detected the smell of alcohol on his breath when they discovered him in the driver’s seat of a parked truck.   

At a pretrial voir dire, the trial judge found that Veen’s arrest was unlawful as it did not comply with Criminal Code section 495(2) and that it amounted to a breach of his s. 9 Charter right to be free from arbitrary detention.

The Crown argued that Justice Sullivan’s interpretation of s. 495 was contrary to binding precedent as set out by the Alberta appellate court’s ruling in Regina v. Fuhr [1975] A.J. No. 447. Veen was subsequently granted permission to have the court reconsider Fuhr, which it concluded was “correctly decided” and that “the summary conviction appeal judge erred when he declined to follow binding appellate authority,” Justices Jack Watson, Frederica Schutz and Bernett Ho said in their unanimous ruling.

“Further, Mr. Veen’s section 9 Charter rights were not breached and the courts below erred in finding a basis for a stay,” they ruled, entering a finding of guilty on the offence against Veen and returning the matter to the provincial court for further proceedings based on the Appeal Court’s judgment.

Alberta’s high court determined that Justice Sullivan “erred by considering the plain words” of Criminal Code ss. 495(2) and (3) “in isolation and concluding that those words gave rise to an ambiguity, separate from any consideration of the object of the Act, the scheme of the Act, and Parliamentary intent.”

Section 495(2) sets out the circumstances under which a police officer “shall not arrest a person without warrant.” Section 495(3), however, states that a peace officer making an arrest without warrant “is deemed to be acting lawfully and in the execution of his duty … unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).”

As the appellate court stated: “Based on the plain words of subsections (2) and (3), the summary conviction appeal judge concluded that: subsection (3) appears to nullify the duty created under subsection (2); there is a ‘clear tension between the plain words of subsections (2) and (3),’ and this tension gives rise to ambiguity because the provision is open to different interpretations.”

“Notably, he did not outline the different interpretations he considered available,” the Court of Appeal said.

“Moreover, elsewhere in his decision, the summary conviction appeal judge seemed to acknowledge that the plain words of section 495 do not give rise to true ambiguity when he also wrote that a court should reject an interpretation that is contrary to common sense ‘even if it lines up more closely with a literal reading of the words,’” in which Justice Sullivan cited the Supreme Court of Canada ruling in R v. McIntosh [1995] 1 S.C.R. 686.

“Indeed, the summary conviction appeal judge appears to have linked an apparent absurd result (that subsection (3) nullifies the duty set out in subsection (2)) to an ambiguity, something that the Supreme Court cautioned against in McIntosh,” the Appeal Court held.

“We do not agree that subsection (3) applies only to situations where a police officer is facing personal criminal or civil liability. First, this interpretation is at odds with the words used by Parliament. The words used in subsection (3) deem a peace officer to be acting lawfully and in the execution of his duty ‘for the purposes of (a) any proceedings under [the Criminal Code] or any other Act of Parliament; and (b) any other proceedings ... .’ Had Parliament intended for subsections 495(3)(a) and (b) to only protect police officers from personal liability in criminal and civil proceedings, it could and would have used explicit language.”

Alberta’s Court of Appeal also said that Justice Sullivan’s “interpretation rendered the words ‘notwithstanding subsection (2)’ meaningless and negated any interrelationship between subsections (2) and (3).”

“We do not agree with the summary conviction appeal judge’s conclusion that the key words in the provision are ‘deemed to be acting lawfully and in the execution of his duty for the purposes of,’ such that (3) is only engaged in proceedings commenced against a police officer,” said Justices Watson, Schutz and Ho.

“Further, we note that analogous provisions in the Criminal Code that the summary conviction appeal judge relied on, namely sections 497(3)10 and 498(3) (each dealing with release from custody after arrest without warrant), have different wording. Neither section 497(3) nor 498(3) includes the word ‘notwithstanding’ in reference to another subsection of the provision.”

The court also noted that there was a “practical problem” introduced by Justice Sullivan’s “narrow interpretation” of s. 495(3).

“If an officer is not deemed to be acting lawfully, may a person use force to resist arrest without repercussion? That would leave peace officers with minimal protection, which is contrary to Parliament’s stated intent,” said the appellate court in its decision.

“The summary conviction appeal judge erred in concluding that subsection (3) merely acts as a shield to protect police officers from personal criminal and civil liability in secondary proceedings commenced against them, such that it only needs to be considered when a police officer is facing either criminal or civil liability.”

The Court of Appeal did not find that Veen’s Charter s. 9 rights were breached.

“We agree with the Crown that the arrest was lawful and at no point did the continued detention become arbitrary. While we agree with the Crown’s position that is not to say that section 495(3) will be a complete answer to the question of whether there is a Charter breach. In other words, the mere fact that a detention may start off as lawful by virtue of the deeming language in section 495(3) does not mean that it will not be possible for a competent court to find that the detention has become arbitrary by the manner of application of the power of detention. But that proposition is not the same thing as a finding that even if the actions of the state agent in failing to address the requirements of section 495(2) of the Criminal Code were condoned as nonetheless lawful by section 495(3) of the Code, that condonation is unacceptable in law and for that reason taints the detention as arbitrary,” the Appeal Court said.

“Despite framing the issues in the case as involving a matter of statutory interpretation, it is apparent that what the summary conviction appeal judge found unacceptable was the interpretation of section 495(3) outlined in Fuhr. In his view, Parliament would be taken to have been ‘effectively rendering [the duty in section 495(2)] meaningless’ by operation of section 495(3) of the Criminal Code if the interpretation in Fuhr given to section 495(3) of the Code and urged by the Crown were allowed to persist.”

“That reasoning path,” said the appellate court, “was not open to the summary conviction appeal judge. There was no proper Charter application before either the trial judge or the summary conviction appeal judge that section 495(3) of the Criminal Code should be found to be unconstitutional as in itself being contrary to section 9 of the Charter. Likewise, the summary conviction appeal judge had no basis to ‘read down’ the existing case law interpreting section 495(3) which would also amount to reading down section 495(3) of the Code itself.”

“We are persuaded that the courts below fell into error of law,” said the Court of Appeal. “The trial judge did not consider section 495(3) at all, and the summary conviction appeal judge erred in determining that an initially lawful arrest and detention under section 495 of the Criminal Code became unlawful or arbitrary.”

Lisa Silver, University of Calgary

Lisa Silver, University of Calgary

University of Calgary criminal law professor Lisa Silver said that in Veen, the Alberta Court of Appeal confirmed the meaning of s. 495(3) in relation to s. 495(2), and the line of case law, including Fuhr.

However, she acknowledged the confusion created by those two Criminal Code provisions.

“Imagine trying to teach this section,” said Silver. “Over and above subsection (3), subsection (2) is so badly worded that it can make your head spin. Part of the problem is the drafting.”

“Justice Sullivan said that subsection (3) protects police officers from criminal or civil liability while giving subsection (2) some meaning. The Alberta Court of Appeal said that subsection (3) does more than that and that there is no defence, and that subsection (2) creates a legal duty for police officers not to arrest without a warrant in certain circumstances and to consider whether it’s in the public interest. But that legal duty does not impact the lawfulness of the arrest — even if police officers failed to comply with subsection 2, that does not provide a defence under criminal law,” said Silver. “The only resource is in civil law.”

She is, however, left with some questions following the ruling.

One involves s. 495(3), which refers to “any” or “any other proceedings,” and whether that captures regulatory offences. The court did not comment on that.

The Court of Appeal did, though, refer to Criminal Code s. 493.1, which states that “a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with.”

In Veen, the court said that the direction set out under s. 495(2) is “is consistent with the overarching principle of restraint, codified in section 493.1 of the Criminal Code.”

“However, the accused is denied the right to raise non-compliance with subsection (2) as a defence to an arrest which is deemed lawful,” the appellate court added.

Silver said that if there is a failure to comply with s. 495(2), “it’s arguable that the police officer is not releasing the person at the earliest reasonable opportunity, which is their added duty under 493.1.”

“So the court didn’t dig deep enough on that issue in my view,” she said.

Michael Spratt, AGP LLP

Michael Spratt, AGP LLP

Ottawa criminal defence lawyer Michael Spratt, a partner at AGP LLP and a Law Society of Ontario certified specialist in criminal law, said many sections of the Criminal Code place “obligations on the police without any consequences for their noncompliance with those obligations.”

“This is a systemic way that the status quo and the misuse of police power is legislatively protected,” he said. “We see this in not only in this section about arrests, but in recent legislative amendments to the Criminal Code, such as the requirement that police officers consider judicial referral hearings for bail breaches.”

Spratt said that police are given similar protection in Bill C-5, which passed first reading in the House of Commons last December, with respect to police considering diversion for minor drug offences.

He wishes that in Veen, Alberta’s appellate court had examined the “negative consequences of legislative obligations that end up shielding police and the justice system from ignoring or not complying with those obligations.”

“A discussion about that might have been an intellectually prudent thing for the court to do in this case,” said Spratt.

The Lawyer’s Daily could not reach counsel for either the appellant or the respondent for comment on the Veen ruling.