R. v. Whitfield, [1970] SCR 46

Supreme Court of Canada

R. v. Whitfield, [1970] S.C.R. 46

Date: 1969-10-07

Her Majesty the Queen (Plaintiff) Appellant;

and

James Whitfield (Defendant) Respondent.

1969: June 18, 19; 1969: October 7.

Present: Fauteux, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Escape from lawful custody—Police officer grabbing accused’s shirt and saying “you are under arrest”—Accused driving off—Whether in lawful custody—Criminal Code, 1953-54 (Can.), c. 51, ss. 110, 125(a).

A police officer, who knew that a warrant for the respondent’s arrest was outstanding, saw the latter at the wheel of a motor vehicle which was then stopped for a red light. The officer approached the respondent’s car and told him that he had a warrant for him. The respondent, who had started to move forward, accelerated but had to brake because of traffic. The officer ran up, reached in through the window and grabbed the respondent’s shirt, saying “you are under arrest”. The respondent accelerated, breaking the officer’s hold on the shirt and on the car. The respondent was convicted after a trial by jury, on a charge of escaping from lawful custody contrary to s. 125(a) of the Criminal Code. The Court of Appeal quashed the conviction and directed that a verdict of acquittal be entered. The Crown was granted leave to appeal to this Court where the sole question for determination was whether the respondent had been in lawful custody.

Held (Hall and Spence JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Fauteux, Martland, Judson, Ritchie and Pigeon JJ.: The respondent was arrested, he escaped from lawful custody and was guilty under s. 125(a) of the Criminal Code. Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. A police officer has the right to use such force as may be necessary to make an arrest. There is no room for what seems to be a new subdivision of arrest into “custodial” arrest and “symbolical” or “technical” arrest.

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Per Hall and Spence JJ., dissenting: The police officer had a lawful right and duty to arrest the respondent. The respondent accordingly was under a legal obligation to submit to the lawful arrest. It is not necessary to touch or hold the person being arrested. He must, of course, be informed that he is being arrested. If he does not submit or tries to flee, the arresting officer may use such force as may reasonably be necessary to detain his man having regard to the nature of the offence for which the person is wanted. If the man flees and is not in fact detained he cannot be said to have been in lawful custody. In these circumstances he is clearly guilty under s. 110(a) of the Criminal Code. Section 125(a) is not an included offence under s. 110(a) and vice versa.

APPEAL from a judgment of the Court of Appeal for Ontario[1], quashing the respondent’s conviction and directing a verdict of acquittal. Appeal allowed, Hall and Spence JJ. dissenting.

C.J. Meinhardt, for the appellant.

David R.G. Griner and C.G. Stewart McKeown, for the respondent.

The judgment of Fauteux, Martland, Judson, Ritchie and Pigeon JJ. was delivered by

JUDSON J.—The respondent, James Whitfield, was convicted on October 23, 1967, after a trial by jury, on a charge of escaping from lawful custody contrary to s. 125(a) of the Criminal Code. He was sentenced to be imprisoned for a period of six months definite and six months indeterminate. The Court of Appeal¹ allowed his appeal, quashed the conviction and directed that a verdict of acquittal be entered. The appeal to this Court is by leave granted on January 29, 1969.

The ratio of the Court of Appeal is that Whitfield could not be convicted under s. 125(a) because he had never been “custodially arrested” and that for a conviction there must be more than what is termed an “arrest in symbolical form”. A distinction is drawn between an arrest amounting to custody and a mere or bare arrest. In some parts of the reasons of the Court of

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Appeal it is referred to as a “technical arrest”. It is said that the judge ought to have told the jury in view of the evidence in the case that it was not enough that there was an arrest by touching and that it was incumbent on the Crown to prove beyond a reasonable doubt that the constable had taken or captured the accused and that the accused had thereafter broken away. These propositions enunciated by the Court of Appeal are, in my opinion, erroneous.

The correct proposition of law is stated in 10 Hals., 3rd ed., p. 342, in these terms:

631. MEANING OF ARREST. Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without a warrant.

There is no room for what seems to be a new subdivision of “arrest” into “custodial” arrest and “symbolical” or “technical” arrest. An accused is either arrested or he is not arrested. If this accused was arrested, he escaped from lawful custody and is guilty under s. 125(a) of the Criminal Code.

The law on this matter was stated without qualification by the Court of Exchequer Chamber in Sandon v. Jervis and Dain[2]. This judgment was delivered in 1858 and was stating not a new principle but established law based on sound public policy. Pollock C.B., Williams J., Crowder J., Willes J. and Bramwell B., were all of the same opinion:

It is a matter of positive law whether a mere touch is to constitute an arrest or not. It might have been reasonably prescribed either that it should or should not be necessary to an arrest that there should be a possession of the person. But probably the reason which led to the laying down of the law as it stands was that it was thought desirable to avoid unnecessary violence; and therefore it was determined that, if the officer was near enough to the debtor to touch him, it was the duty of the debtor to submit;

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and this for the purpose of preventing conflict. I may remark parenthetically that what the law of England most aims at is the preservation of peace. It will not allow a man to take forcible possession of even his own property. But, whatever be the reason, the law is that, if the officer is near enough to the debtor to touch him, and does touch him, and gives him notice of the writ, it is an arrest. I can well understand the reason for its being so held.

It is true that this problem was under consideration in relation to an action against a sheriff by an execution creditor for permitting an execution debtor to escape from lawful custody. But the proposition of law stated by Pollock C.B., is not so limited in its application. Bramwell B., in his agreement with Pollack C.B., on the general proposition, introduced an element of qualification when the issue was the liability of the sheriff for permitting an escape. I quote his precise words:

I am of the same opinion: but I wish to guard myself against being supposed to lay it down that the sheriff would be liable to an escape where the officer had been unable to do more than touch the debtor. The capture might be good as against the debtor so as to preclude him from saying that he had not been arrested, and yet not complete so as to make the sheriff liable for an escape... I wish not to be understood as asserting that the sheriff would have been liable for an escape if the debtor had got away after he had merely been touched.

This qualification which Bramwell B., alone wished to introduce was intended to ease the lot of the sheriff when sued for an escape. It does not touch the general proposition. It was not accepted by the other members of the Court and it had been argued and rejected in the earlier case of Nicholl v. Darley[3], where it was said that the cases “abundantly show that the slightest touch is an arrest in point of law.”

In Sandon v. Jervis and Dain the Court was, therefore, following long established authority based on sound principle which goes back at least as far as the judgment of Holt C.J., in Genner v. Sparks[4].

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These authorities which have stood so long should not now be limited to a process which has become obsolete. The reason for the rule is equally compelling today as it was in the past. A police officer has the right to use such force as may be necessary to make an arrest. What kind of arrest are we to expect if it becomes a principle of law that a police officer, acting under a warrant of which he informs the accused, and who actually seizes the accused’s person, is found not to have made an arrest because the accused is in the driver’s seat of a motor car which enables him to shake off the arresting officer?

I would allow the appeal and restore the conviction.

The judgment of Hall and Spence JJ. was delivered by

HALL J. (dissenting)—The respondent, James Whitfield, was a person for whose arrest a warrant was outstanding. He was wanted with two others on a charge of having wilfully damaged three seat cushions in a restaurant some three weeks before. On June 10, 1967, he was driving a motor vehicle in an eastbound direction at the corner of St. Clair Avenue and Dufferin Street in the City of Toronto. At the same time, Constable Kerr, a member of the Toronto Police Force, who knew that a warrant for Whitfield’s arrest was outstanding, was driving a police car accompanied by a fellow officer and at the intersection in question saw Whitfield who was then stopped for a red light. Kerr got out of the police car and approached Whitfield’s car, and as he came to the car window Whitfield started to move forward, the light having changed to green. Kerr, who knew Whitfield, said through the open window: “I have a warrant for you, Whitfield” and added: “Stop the car and shut off the ignition”. Whitfield accelerated, veering to the left across the centre line of St. Clair Avenue but had to brake abruptly because of westbound traffic. He then proceeded in the intersection and Kerr was unable to shout at or speak to the accused at that time. However Whitfield had to brake again in the middle of Dufferin Street because of traffic. Kerr ran up and groped for the ignition key while Whitfield moved forward again and continued to turn left. As Whitfield completed the turn to go

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north, travelling then at about 5 miles per hour, Kerr reached in through the window and grabbed Whitfield’s shirt with both hands, saying, “You are under arrest”, but Whitfield accelerated breaking Kerr’s hold on the shirt and on the car. As Kerr’s hold on the car was being broken, he was dragged a few feet and then fell to the pavement. At some time when he had hold of Whitfield’s shirt, Kerr struck his neck on the frame of the car door, and when he fell to the pavement he sustained some bruises to an elbow joint and his right leg was injured. In the result he was unable to perform his duties as a police officer for three days. Whitfield was taken into custody a short time later at another location by two other police officers. He was indicted on October 23, 1967, under two counts as follows:

1. The said jurors further present that James Edward Whitfield on or about the 10th day of June in the year 1967 at the Municipality of Metropolitan Toronto in the County of York, by criminal negligence, caused bodily harm to one (Frederick) Kerr, contrary to the Criminal Code. (Amended Oct. 19, 1967 by Judge Sheppard)

2. The said jurors further present that James Edward Whitfield on or about the 10th day of June in the year 1967 at the Municipality of Metropolitan Toronto in the County of York, escaped from lawful custody, contrary to the Criminal Code.

He was tried before His Honour Judge Sheppard and a jury and found “Not Guilty” by the jury on Count 1 but “Guilty” under Count 2 and sentenced to a term of imprisonment of six months definite and six months indefinite.

Whitfield appealed on the ground that he could not be found guilty under s. 125(a) of the Criminal Code as he had not been in lawful custody at the time in question. The Court of Appeal[5] (Gale C.J.O., Laskin and Jessup JJ.A.) allowed the appeal, set aside the conviction and directed that an acquittal be entered on the charge of escaping from lawful custody.

The Crown applied and was given leave to appeal from the judgment of the Court of Appeal

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on the terms that the Crown pay to the respondent his costs of the appeal in this Court, including the costs of the motion for leave, the whole on a solicitor and client basis in any event of the cause.

The sole question for determination is whether or not, on the facts as hereinbefore set out, Whitfield was, at the relevant time in question here, in lawful custody because it follows that unless he was in lawful custody he could not escape from lawful custody as the section states.

In the argument before this Court a great number of old English cases were cited dealing with whether an arrest had been effected or not in certain given circumstances. Virtually all the cases cited by counsel for the appellant as well as for the respondent had to do with the purported arrest of an execution debtor under a writ of capeas ad satisfaciendum usually known as a ca. sa. being the writ directed to a sheriff to take into custody an execution debtor and: “… him safely keep so that the sheriff may have the body before the High Court of Justice to satisfy the execution creditor the amount payable under the judgment order.”: Halsbury, 3rd ed., vol. 16, para. 98. This was a procedure frequently invoked before imprisonment for debt was abolished by the Debtors Act, (1869) 32-33 Vict., c. 62, s. 4. The ca. sa. writ is still theoretically available but has fallen out of use and is now regarded for practical purposes as obsolete: Halsbury, 3rd ed., vol. 16, footnote (g), p. 63. In the cases cited by counsel the action was against the sheriff either for not having taken the debtor into custody or for having allowed the debtor to escape when he might have been taken into custody. This was at a time when the common law favoured the man of property and a fictional or notional idea of what constituted an arrest under a ca. sa. writ was adopted by the courts as cases such as Nicholl v. Darley[6] show, and the sheriff who did not hold and keep the debtor once he touched him was held liable to the creditor. The extent to which the courts stretched the notional idea of arrest is illustrated by the rejection by the majority in Sandon v. Jervis and Dain[7] of the

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qualification which Bramwell B. sought to introduce in that case. In my view Nicholl v. Darley and Sandon v. Jervis and Dain cannot be accepted as establishing a principle of law applicable to situations arising 100 years after the situations to which they applied became obsolete. The dead hand of the past cannot reach that far. These outdated procedures evolved before the organization of police forces as we now know them and had no relation to the arrest or taking into custody of a person charged with a criminal offence.

Accordingly in my view this case does not fall to be decided upon the authority of cases applicable to the taking into custody under writs of capeas ad satisfaciendum obsolete since 1869, civil in their nature, and not involving the criminal law doctrine of proof beyond a reasonable doubt but should be decided upon principles applicable to the circumstances obtaining in this century and particularly since Parliament has legislated in the very matter to cover both resisting lawful arrest and escaping from lawful custody as two distinct and separate offences.

In the instant case the police officer, Kerr, had a lawful right and duty to arrest Whitfield. There is no question as to the fact that a warrant was outstanding and Kerr’s attempt to arrest was lawful. Whitfield accordingly was under a legal obligation to submit to the lawful arrest. It is only by the recognition of these corresponding duties and obligations that we can avoid the notion that the person being arrested has to be restrained physically before he can be said to be ‘arrested’. I do not see that it should be necessary to touch or hold the person being arrested. He must, of course, be informed that he is being arrested. If he does not submit or tries to flee, the arresting officer may use such force as may reasonably be necessary to detain his man having regard to the nature of the offence for which the person is wanted. If the man flees and is not in fact detained he cannot be said to have been

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in lawful custody, but that does not mean he has not committed an offence. Parliament has legislated specifically in this regard. In these circumstances he is clearly guilty under s. 110(a) which reads:

110. Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

* * *

is guilty of an indictable offence and is liable to imprisonment for two years.

Parliament had to deal with two situations: (1) the arrest or taking of a person into custody when authorized by law; (2) the keeping of such a person in custody once he has been lawfully arrested and/or sentenced. By creating two offences, the earlier dealing with the actual arrest or attempt to arrest and the later dealing with escaping from lawful custody, Parliament clearly recognized that the two situations were different and not interchangeable and Parliament must be presumed to have known that the words “arrest” and “custody” are not synonymous. Section 125(a) is not an included offence under s. 110(a) and vice versa. This becomes very clear from the wording of subss. (b) and (c) of s. 125 as distinct from the whole of s. 110 which patently deals with the arrest process itself and not with the custodial situation following upon a lawful arrest.

I would, accordingly, dismiss the appeal with costs payable in accordance with the order for leave to appeal on the grounds above mentioned. The Crown should charge an accused with the actual offence it says he has committed. This is not asking too much of those in charge of prosecutions. Here Whitfield was avoiding arrest and should have been charged under s. 110(a) and would have been liable to imprisonment for two years. This is the sanction Parliament has provided for a person such as Whitfield, who at the wheel of a motor car, shakes off an

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arresting officer. He is made liable to the same punishment under s. 110(a) as is provided for in s. 125. Both offences are equally grave but distinct.

Appeal allowed and conviction restored, HALL and SPENCE JJ. dissenting.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: D.R.G. Griner, Toronto.