Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Protection against arbitrary detention or imprisonment — Protection against unreasonable search and seizure — The accused was acquitted of wilfully obstructing a police officer engaged in the execution of his duty by falsely identifying himself when arrested — The officer was not acting in the lawful execution of his duties, as he had not told the accused why he had pulled him over or why he was detaining him; and it was clear from the evidence he was involved in the investigation of a criminal offence and not any matter under the Highway Traffic Act — Highway Traffic Act.
Criminal law — Offences — Against the administration of justice — Resistance or obstruction of a public officer or peace officer — The accused was acquitted of wilfully obstructing a police officer engaged in the execution of his duty by falsely identifying himself when arrested — The officer was not acting in the lawful execution of his duties, as he had not told the accused why he had pulled him over or why he was detaining him; and it was clear from the evidence he was involved in the investigation of a criminal offence and not any matter under the Highway Traffic Act — Highway Traffic Act.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, s. 9, s. 10
Criminal Code of Canada,
Highway Traffic Act,
Counsel:
Counsel for the Crown G. Gayle, Esq.
Counsel for Mr. Rachkovsky C. Angelini, Esq.
¶ 1 J. CASEY J.:— Erik David Ivan Rachkovsky is charged that on or about the 19th day of February in the year 2005, in the city of Toronto, in the Toronto Region did wilfully obstruct Vivian A. Meek, a peace officer, to wit: a police officer of the City of Toronto, engaged in the execution of his duty enforcing the provisions of the Criminal Code by falsely identifying himself when arrested, contrary to the Criminal Code. The Crown has elected to proceed by way of summary conviction and Mr. Rachkovsky has entered a plea of not guilty to the charge.
¶ 2 On the trial, one witness gave evidence, Sergeant Vivian Meek, a member of the Toronto Police Services who was called by the Crown. No evidence was called by the defence. It was the evidence of Sergeant Meek that at approximately 1:46 in the afternoon of February the 19th of this year, he was in a marked police scout car on Bloor Street when he observed a vehicle, licence #ATNV 618 which was driving quickly. The officer indicated that his attention was drawn to the vehicle which he indicated went by him, 'fairly fast'. Officer Meek indicated that this was what initially drew his attention to the vehicle, and he ran the licence plate on the computer in his scout car.
¶ 3 The officer indicated the information which he testified he received on the computer regarding the vehicle and proceeded to stop the car. Mr. Rachkovsky was the driver. Officer Meek testified that he noted the description which he had received on his computer and requested Mr. Rachkovsky's driver's licence, ownership and insurance. Mr. Rachkovsky verbally identified himself with a name other than his own and provided the other documents requested by the officer.
¶ 4 The officer returned to his scout car where he checked the name given by Mr. Rachkovsky. It was Officer Meek's evidence that since Mr. Rachkovsky matched the description of the suspect in the incident, the information respecting which he had seen on his computer, he returned to the vehicle and arrested Mr. Rachkovsky on charges relating to the prior incident, specifically charges of weapons dangerous and mischief.
¶ 5 In cross-examination, Officer Meek was asked;
"Question: But you're not, I mean you're not suggesting that he committed a Highway Traffic offence? |
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Answer: No. He was going by me fairly fast for the time. You know, it's a Saturday, Bloor Street. I don't know if you're familiar with Bloor Street. It's pretty busy, you know, and anybody who travels a little fast or even boots it a little bit, I just run him. I wasn't looking for anything specific. |
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Question; Just sort of caught your eye? |
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Answer: I didn't even know who the driver was. I didn't see or get a look at the driver, or I didn't know who the passenger -- nothing. I didn't know who was behind the wheel, nothing. I had nothing on the vehicle at all. |
Further:
"Question: Now, you've told us that you received information or that -- or there was something on CPIC to the effect that if this vehicle is spotted or located, you should, the officer who observes or locates this vehicle, should ID the driver? |
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Answer: Yep. |
Answer; Yes.
Question: Right?
Answer: Yep.
Question: But there's no information on here as to whether or not the person that you were looking for was at large or anything like that? |
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Answer: No. |
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Question: All right. |
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Answer. No? Just said - I copy from CPIC, said, locate, ID driver and obtain particulars and contact 52 Division, CIB, which is the investigative office, and there was a suspect description attached to that." |
The officer was further asked:
"Question; So you pull him over?
Answer: Yep.
Question: Because you want to ID the driver and obtain particulars, right? |
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Answer: Exactly. Yep." |
And further:
"Question: And you're approaching -- essentially, you're conducting a criminal investigation, at this point, am I right? |
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Answer: Investigation, yes. |
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Question: It's a criminal investigation, it's not a traffic stop? |
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Answer: Yeah." |
And finally:
"Question: But you didn't advise him of his rights to counsel or anything like that when you first walk up to the vehicle? |
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Answer: No. He's driving a motor vehicle. Under the Highway Traffic Act, I have a right to ask him for his driver's licence, ownership, insurance." |
¶ 6 It's the submission of Mr. Angelini, counsel for Mr. Rachkovsky, that when Officer Meek stopped Mr. Rachkovsky, the officer was involved in a criminal investigation, that he was not acting pursuant to the powers given under the Highway Traffic Act, and that in proceeding as he did, he violated Mr. Rachkovsky's rights under ss. 9 and 10 of the Charter of Rights and Freedoms.
¶ 7 It is further the submission of Mr. Angelini that where the officer is acting in a manner which violates the Charter of Rights of the individual, he is not acting in the lawful execution of his duty, and that the onus is upon the Crown to satisfy me beyond a reasonable doubt that in proceeding as he did, the officer was not violating Mr. Rachkovsky's rights under either s. 9 or 10 of the Charter.
¶ 8 It is the submission of Mr. Gayle, Crown counsel, that the officer was acting both pursuant to the powers given under the Highway Traffic Act and also engaged in a criminal investigation. He submits that as part of that investigation, the officer was entitled to stop and question Mr. Rachkovsky.
¶ 9 I agree with Mr. Angelini that Mr. Rachkovsky being charged with the offence of obstruct police, the Crown must prove that Officer Meek was acting in the lawful execution of his duty. Reference may be made to the decision of the Ontario Court of Appeal in Regina and Lauda, which is reported at 136 C.C.C. (3d) 358, where Justice Moldaver, speaking for the court, indicated at paragraph 106 and the following:
"The convictions for obstructing a peace officer in the execution of his duty and escaping lawful custody can only be sustained if Constable Parsons was engaged in the lawful execution of his duty when he arrested the appellant. |
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The analysis that I have brought to bear on Constable Parsons' warrantless entry and search of the cornfield leads me to conclude that at the time of arrest, he and his partner were unlawfully trespassing on private property and their presence on the property constituted a violation of the appellant's s. 8 rights. Under these circumstances, bearing in mind that the appellant was lawfully in possession of the leasehold property, it cannot be said that Constable Parsons was acting in the lawful execution of his duty when he arrested the appellant." Case references and citations omitted. |
¶ 10 In light of the conclusions which I have reached, I find it unnecessary to deal with the additional issue raised by Mr. Angelini regarding the credibility or reliability of the evidence of Officer Meek. It is clear from the evidence of Officer Meek that he was involved in the investigation of a criminal offence and not any offence or matter under the Highway Traffic Act. It appears that when he initially stopped the vehicle, it was solely for the purpose identifying the driver.
¶ 11 In the decision of the Quebec Court of Appeal in Regina and Guénette which is reported at (1999) 136 C.C.C. (3d) 311, a matter which is factually similar to this one, the head note, which I believe an accurate precis of the judgment of Justice Fish speaking for the majority, reads.
"A police officer who uses his highway safety enforcement powers to detain an accused for an unrelated purpose is not 'in the execution of his duty' within the meaning of s. 129(a) of the Criminal Code. A police officer can lawfully stop a motor vehicle pursuant to s. 636 of the Highway Safety Code only for purposes related to highway safety. The statutory power to stop a vehicle for highway traffic purposes cannot validly be exercised for a different purpose entirely as it was in this case. The accused was initially detained in violation of his constitutional rights. It followed that the officer who effected that detention was not then 'in the execution of his duties' within the meaning of s. 129 of the Criminal Code." |
¶ 12 The Supreme Court of Canada in Regina and Mann 185 C.C.C. (3d) 308, has recognized the limited power on the part of the police to detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual was connected to a particular crime and that such detention was necessary. The Court, however, also held at paragraph 21, Justice Iacobucci speaking for the majority indicates:
"Section 10 (a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor." At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention." |
¶ 13 It was Officer Meek's evidence that when he stopped Mr. Rachkovsky and asked him to identify himself, he, being the officer, didn't tell Mr. Rachkovsky why he had pulled him over or, to put it another way, why he was detaining him. When I take into account all of the evidence, the submissions of counsel and the test to be applied upon the Crown in these proceedings, I find that the Crown has not satisfied me beyond a reasonable doubt that at the time Officer Meek was acting in the lawful execution of his duties. In the result, Mr. Rachkovsky will be found not guilty of the offence. I would like to thank both counsel further.
¶ 14 MR. ANGELINI: Thank you, Your Honour.
¶ 15 THE COURT: Mr. Angelini, that completes your matters.
QL UPDATE: 20060512
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