R. v. VEEN, 2022 ABCA 350, NOVEMBER 1, 2022.
FACTS: The accused failed to comply with a breath sample demand and was arrested. The arresting officer explained the reasons for the arrest in the following manner:
I wanted to remove Mr. Veen from the scene. His girlfriend and his friends were — behaviour was still causing problems and I wanted to remove him from the scene in order to deescalate their behaviour. The second reason was to complete release paperwork. And the third reason – and in my mind — well I think the first reason of removing Mr. Veen from the — the scene was probably the most important but the third reason was also very important in that Mr. Veen hadn’t communicated clearly whether he wished or did not wish to speak with legal counsel. And so in taking him to the District ‘6’ office that would provide him with the opportunity to call legal counsel if he so chose.
The trial judge concluded that the arrest was unlawful and constituted a breach of 9 Charter. A stay of proceedings was entered pursuant to section 24(1) of the Charter. The Crown’s appeal to the summary conviction appeal court was judge dismissed. The Crown was granted leave to appeal to the Alberta Court of Appeal. The Court of Appeal indicated that the appeal concerned “the interpretation of section 495 of the Criminal Code, RSC 1985 c C-46 dealing with the police power to arrest without warrant”.
HELD: The appeal was allowed and a conviction entered. The Court of Appeal concluded that “Mr. Veen’s section 9 Charter rights were not breached and the courts below erred in finding a basis for a stay” (at paragraph 3).
The Alberta Court of Appeal summarized the effect of section 4945(2) in the following manner (at paragraph 10):
Section 495(2) directs a peace officer not to arrest a person for the offences referred to in paragraphs (a), (b), or (c) in certain circumstances. Refusing to provide a breath sample is a hybrid offence and is among the offences referred to in section 495(2)(b): Criminal Code, s 255(1) (now section 320.19). Section 495(2)(b) states that a peace officer shall not arrest a person for a hybrid offence if the requirements in subsections (d) (the public interest may be satisfied without an arrest) and (e) (no reasonable grounds to believe that the person will fail to attend court) are satisfied. Subsection (2)(d) enumerates three considerations that are relevant to the public interest: (i) the need to establish the identity of the person, (ii) the need to secure or preserve evidence, or (iii) the need to prevent the continuation or repetition of the offence or the commission of another offence.
The Court of Appeal indicated that “whenever an officer’s actions under subsection (2) are considered, subsection (3) is engaged and must also be considered. As stated in Adams at 374, and adopted in Fuhr at 406: ‘subs. (3) must be construed as denying the right to raise a defence, based on the non-compliance with subs. (2), in any proceedings under the Code or under any other Act of Parliament’” (at paragraph 57).
The Court of Appeal held that “sections 495(3)(a) and (b) [are] intended to operate differently and in different contexts” (at paragraphs 59 and 60):
Excerpts from Parliamentary debates referenced earlier make clear that sections 495(3)(a) and (b) were intended to operate differently and in different contexts, with subsection (a) applying to criminal matters and (b) applying to civil matters. With regards to civil matters, Parliament intended for subsection (3)(b) to operate such that “the person who wants to sue civilly for having been brought to the desk and booked must establish that the [officer] did have reasonable and probable ground to believe that the public interest could be satisfied without so arresting him.” This is borne out by the manner in which subsections (3)(a) and (3)(b) are worded and structured, with subsections (a) and (b) appearing separately and the phrase beginning with “unless” being included within subsection (b).
This interpretation does not diminish a peace officer’s legal duty to comply with section 495(2). The language of section 495(2) directs that a peace officer “shall not”arrest without warrant unless, for offences outlined in (a) through (c), the public interest considerations stipulated in (d) and (e) are met. This direction is consistent with the overarching principle of restraint, codified in section 493.1 of the Criminal Code applicable to all decisions under Part XVI of the 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 Court of Appeal concluded that the officer’s decision to arrest was not “unreasonable” (at paragraph 75):
…the Constable was dealing with a non-sober motorist who had unlawfully refused to comply with a roadside screening demand (as found by the trial judge) and there were disruptive spectators that also sought to intrude into Mr. Veen’s decision making. Seeing these circumstances through a practical lens, it was not unreasonable for the Constable to have regard for Mr. Veen’s refusal and disruptive bystanders in concluding that Mr. Veen should be taken from that location so that processing could be completed, and Mr. Veen’s Charter rights could be complied with. We note that Mr. Veen’s total time in custody was 1 hour and thirty-six minutes, and the other officers arranged to have the vehicle towed in the meantime.