Queen v Guthrie Alberta Count of Appeal no ID necessary

In the Court of Appeal of Alberta Citation: R. v. Guthrie, 1982 ABCA 201 Date: 19820622 Docket: 14019 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Patricia Gwenne Guthrie Appellant The Court: The Honourable Mr. Justice Laycraft The Honourable Mr. Justice McClung The Honourable Mr. Justice Belzil Reasons for Judgment of The Honourable Mr. Justice McClung Concurred in by The Honourable Mr. Justice Laycraft And Concurred in by The Honourable Mr. Justice Belzil COUNSEL: A.R. Robertson, Esq., for the Appellant Crown C.E. Musk, Esq., for the Respondent REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE McCLUNG [1] This is an appeal in law from a case stated by His Honour Judge Robbins of the Provincial Court following the conviction of the appellant after trial of an information alleging that the appellant “… did unlawfully and wilfully obstruct W. Gentle, a Peace Officer, in the execution of his duty contrary to paragraph (a) of s.118 of the Criminal Code.” 1982 ABCA 201 (CanLII) [2] The issue for determination is whether the appellant was under a legal obligation to identify herself to the police in the circumstances under which she was found and whether her refusal to do so constituted an obstruction as envisaged by s.118 of the Code. [3] The facts found in the Provincial Court included the following. At 1:10 a.m. on July 2nd, 1981 Constables Gentle and Simonson of the Calgary City Police were exiting the police garage onto 6th Avenue S.E. at the intersection of 6th Avenue and 3rd Street S.E. in Calgary. Both were in uniform and occupied a marked police vehicle operated by Constable Gentle. At this time Constable Gentle noticed movement in the darkness inclosing the Calgary Police Association parking lot located at 428-6th Avenue S.E. The movement was about 15 ft. to 20 ft. into the lot as measured from the sidewalk. At the time the police were conscious of earlier break-ins of police officers’ private vehicles parked in the lot. Constable Gentle engaged the overhead lights of his vehicle and moved on to 6th Avenue to investigate. As he turned on to 6th Avenue he saw the accused. She was wearing a black leather jacket and denim jeans. She carried nothing and was walking in an easterly direction from the parking lot towards the sidewalk. Constable Gentle drew level with the appellant, pulled the vehicle across her path and called to her to stop for a moment. The appellant asked “Why?”, walked around the police vehicle across 6th Avenue to the south curb, still heading east. Again Constable Gentle moved the police vehicle across her intended path and both constables instructed her to stop. Constable Gentle asked “What were you doing in the parking lot?”. The accused stopped, looked at the officers and walked around the vehicle again. At this time Constable Simonson got out, approached her and told her to stop. She refused and Constable Simonson took hold of her right arm and stood in front of her thereby preventing her further progress. She was then told she would be detained until she gave her name and her identification could be verified. She was then told to get into the rear of the police vehicle. She refused. She was then arrested for obstruction and put into the vehicle. Inside the police vehicle she refused to answer questions concerning her name and address etc., but was heard to observe “This is going to be interesting to see the system working.” The police vehicle was driven back to the parking lot. At that time an Oldsmobile vehicle within the lot was found with its door open. It had not been forcibly entered and nothing had been removed from it. Under questioning concerning her possible involvement with that vehicle the appellant maintained her silence. Apart from some minor resistance to being placed in the police vehicle the appellant was described as polite, not nasty or abusive. Upon escort to Police Headquarters and then to the Calgary Remand Centre the appellant relented and identified herself. 1982 ABCA 201 (CanLII) [4] The learned Provincial Court judge held that failure to identify herself in the circumstances amounted to an obstruction of the officer in the execution of his duty and convicted the appellant. “We go over to this case”, he noted, “where Constable Gentle observed that he saw this person in the shadows of the police garage; there had been difficulties there before. He observed her under what, in his mind, would be suspicious circumstances. And in so doing, he requested that person to identify themselves. Now, in those circumstances, I am satisfied that he is in the execution of his duty and in my mind it would place the matter in the Moore and The Queen case, where the officer, by requesting the accused to identify himself, was carrying out the duty of enforcing the law. And when the accused refused to accede to the officer’s request, he was obstructing the officer in the performance of his duty. Looking at the evidence here in totality, Mr. Robertson, I must conclude that although she perhaps only made the officer’s duty more difficult, that under the circumstances her conduct does come within Moore v. The Queen and I must find her guilty.” [5] Clearly, the time of night, the location and the history of recent offences leave little doubt that the officers acted in furtherance of their duties in attempting to clarify the appellant’s identity and presence. If authority were required it could, at least, be found in the duties prescribed by The Police Act, now R.S.A. 1980, Chap.P-12,s.31(1) which include (i) the preservation of the peace, (ii) the prevention of crime and of offences against the laws in force in Alberta, and (iii) the apprehension of criminals and offenders and others who may lawfully be taken into custody. But that does not conclude the matter. The real question here is whether the appellant’s silence amounted to a wilful and unlawful obstruction and in my opinion it is answered in Rice v. Connelly (1966) 2 All E.R.649 where Lord Parker, C.J. noted “Wilful in this context means not only intentional but also connotes something which is done without lawful excuse … Accordingly the sole question here is whether the appellant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place short, of course, of arrest.” [6] In Rice v. Connolly a conviction for obstructing a peace officer based on facts invitingly similar to those set out by the learned Provincial Court judge in the case herein stated was quashed. A suspect refused to give his full name and address to police officers 1982 ABCA 201 (CanLII) after being seen in early morning hours behaving suspiciously in an area where break and entry offences had earlier occurred. To the same effect is Ingleton v. Dibble, [1972] 1 All E.R.275. In Canada we have, amongst the many authorities reviewed in Moore v. The Queen (1978) 43 C.C.C. (2d) 83, [1979] 1 S.C.R. 195, post, R. v. Patrick (1960) 32 C.R. 338, 128 C.C.C. 263 and R. v. Bonnycastle [1969] 4 C.C.C. 198, 68 W.W.R. 407 where McFarlane J.A., speaking for the British Columbia Court of Appeal, carefully separated the duty of peace officers to make inquiries and the legal right of a suspect to refuse to answer them in circumstances where the law did not mandate that he do so. [7] The learned Provincial Court judge felt obliged to follow Moore v. The Queen in equating the appellant’s silence to a wilful obstruction. But critical to the result in Moore was the fact that a constable on duty had witnessed the commission of a statutory infraction - the running of a red light - and the fact that the constable had no power to arrest the suspect for any offence unless and until he had attempted to identify him so that he might be the subject of summary conviction proceedings. Criminal Code s.450 (2)(d)(i). The authority of Rice v. Connolly was neither doubted nor diminished by Spence, J. who wrote for the majority of the Supreme Court of Canada in holding that Moore’s silence during his interrogation amounted to an act of obstruction. Spence, J. said, referring to Rice v. Connolly: “It is paramount to note that the appellant there had not committed any offence in the presence or view of a police officer.” [8] That is what happened, or more precisely, what didn’t happen here. To supply the needed wrongdoing Mr. Musk argued, somewhat faintly, that a violation of The Petty Trespass Act, R.S.A. 1970, Chap. 273 had been observed. But no evidence was led, or finding made, that the City Police Association parking lot was land protected by the operation of that Act which provides: “2.(1) No person shall trespass upon (a) privately owned land, or (b) Crown land subject to any disposition granted under The Public Lands Act, except a grazing lease or a grazing permit, or (c) a garden or lawn, with respect to which he has had notice by word of mouth, or in writing, or by posters or signboards, not to trespass.” [9] We view the right of silence in response to police interrogation, custodial or otherwise, as too firmly established within the common law to be unseated by mere judicial 1982 ABCA 201 (CanLII) erosion. It must await statutory impetus as exampled in the Immigration Act R.S. (1970) c.325, s.19(2), the Customs Act R.S. c.58, s.239, s.233(2) of the Criminal Code (leaving the scene of an accident) and the various provincial enactments concerning the investigation of highway traffic accidents. See Ratushny, Self-incrimination in the Canadian Criminal Process (1979), page 144. To this extent the result in Moore v. The Queen, supra, may be said to turn on the inferral of an obligation to speak out drawn from a peace officer’s power of arrest without warrant in summary conviction offences as recited in Criminal Code s.450. [10] The common law right of silence in an interrogative setting is separably supported in recent judgments issued within the Supreme Court of Canada. Lamer, J. in Rothman v. The Queen (1981) 59 C.C.C. 30 would locate it within freedom of speech. Dickson, J. writing in minority in Moore v. The Queen, supra, noted that the proposition took root in two other fundamental common law principles, namely; the presumption of innocence and privilege against self crimination, although as made clear in Regina v. Marcoux and Solomon [1976] 1 S.C.R. 763 the latter is now relegated to simple privilege against testimonial compulsion. Additionally, and the point is made by Dr. Glanville Williams, if silence in the absence of a statutory compulsion to answer were obstruction all such statutory imperatives would be unnecessary. Demanding Name and Address (1950) 66 Law Quarterly Review 465. [11] In quashing this conviction comment is not taken upon the legality of the appellant’s arrest. It is an issue distinct to the issue of obstruction. The officers’ beliefs and whether they were reasonable and probable as influenced by the appellant’s refusal to account for herself in the circumstances all weigh in such an inquiry. Demanding Name and Address, supra. [12] The questions raised by the learned Provincial Court judge in the case stated do not entirely coincide with the grounds of appeal that were argued. Therefore I would answer them in this way. In the circumstances disclosed by the facts given us including the absence of the apparent commission by the appellant of any offence known to law, her failure to identify and account for herself at the request of Constable Gentle arose within lawful excuse and did not constitute the obstruction charged. [13] The appeal is allowed and the conviction quashed. DATED at Calgary, Alberta, this 22nd day of June, A.D. 1982.