R v Ratt, 2020 SKCA 19: Whatcha gonna do when they come for you

Everyone in Canada has “the right not to be arbitrarily detained” under section 9 of the Charter or, according to the Court of Appeal for Saskatchewan in the recent decision of R v Ratt, 2020 SKCA 19, everyone in Canada has “the right not to be arbitrarily detained” but only if that individual first submits or acquiesces to the (possibly arbitrary) detention.

The broad conclusion in Ratt, which seems to find support in the jurisprudence (see R v Atkins, 2013 ONCA 586 at ¶10), should encourage practitioners to seriously consider abandoning altogether seeking relief under the Charter in those cases - such as assault police and obstruct police - where the Crown must prove beyond a reasonable doubt that the police officer was acting “in the execution of his[/her] duty”.  As noted by Justice Code in Zargar, this is often “tactically wise” given that the higher burden will then fall on the Crown.

And while the facts in Ratt are decidedly not ideal to argue otherwise - “Mr. Ratt was already running away from the scene when the police got out of their vehicle and issued their commands to “stop” and that Mr. Ratt was “under arrest” (italics added, see ¶37) – the bare, descriptive assertion in Ratt that “an attempted detention is not a detention for the purposes of s. 9” (see ¶38) is overly broad and runs counter to a generous and purposive approach to interpreting the Charter – including one that seeks to prevent breaches before they occur (see R v Côté, 2011 SCC 46 at ¶84, in the context of s. 8 jurisprudence).

Without much analysis, the Court of Appeal for Ontario in R v Dunkley implicitly embraces the approach which I advocate here: that there should be no requirement for submission or acquiescence, even if “extremely brief” (see Ratt, at ¶36) , in order for a “detention” under s. 9 to coalesce. In that case Mr. Dunkley had exited a gas station kiosk when the police approached him (for a particularized criminal investigation) and asked for his identification, and in response to which Mr. Dunkley “backed away and then ran from the scene” (see ¶10). On appeal, Mr. Dunkley apparently argued - and quite curiously so - that he was not detained (see ¶25), a claim which Hourigan J.A. briefly rejected at ¶28:

…I see no error in the trial judge’s conclusion that the appellant was detained when the officers approached him outside the gas station. The officers confronted the appellant for the purposes of their investigation and identified themselves. In reaction to that confrontation, the appellant chose to flee. Although the detention was only momentary, it was a detention nonetheless.

It seems to me that in cases where the police are clearly attempting to detain or arrest an individual – such as by shouting “stop, you’re under arrest!”(as distinguished by what occurred in Nesbeth, where the police language and conduct was not at all suggestive of an intention to detain) - it is simply wrong to deny the protection of s. 9 of the Charter merely because the individual immediately flees (to be sure, how do we really measure “momentary” in Dunkley?). After all, the fact of flight “may well be some evidence that [the individual] believed that he had no choice but to comply, and instead of complying, decided to escape” (see R v Atkins, at ¶10). Indeed, other than submission or acquiescence, what could be better evidence - than immediately running away - that the person did not feel that they had the choice to just walk away (see R v Grant, 2009 SCC 32 at ¶30, 41-42, R v Le, 2019 SCC 34 at ¶25-26 & 72).

The purported requirement of submission or acquiescence prior to flight - even if “extremely brief” - seems to unduly constrain the “realistic appraisal of the entire interaction” demanded by Grant.  More importantly, such a requirement tends to denude the purpose underlying section 9: “to protect individual liberty from unjustified state interference” (and here, I would argue, before they occur), including by guarding “against incursions…without adequate justification” (see Grant at ¶ 20).

Individuals ought to have the right not to be arbitrarily detained without first submitting to that arbitrary detention. They should not have to acquiesce to an imminent violation of their rights in order for that right to be later vindicated. That said, I will not be advising my clients to flee from the police, not least because it is inherently dangerous, it is illegal in the face of a valid demand, it might supply further grounds and it could be used as after-the-fact conduct. But if they happen to run away from an impending (possibly arbitrary) detention, be ready to argue section 9 or, if applicable, Zargar.