Exclusion de la preuve

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R. c. Boudreau-Dupéré[modifier]

R. c. Boudreau-Dupéré, 2011 QCCM 193 (CanLII)

Cette décision de la juge Asseraf de la Cour municipale de Montréal comprend plusieurs éléments; une motion pour exclure des éléments de preuves pour des différentes raisons, le règlement P-6 et les droits de la police en matière d'arrestation.

Montréal c Nelson 2016[modifier]

Montreal (City of) c. Nelson, 2016 QCCM 61 (CanLII)

Cette décision du juge Boutros de la Cour municipale de Montréal tranche la quéstion: est la preuve recolté durant une intervention pour appliquer une disposition invalide (le 500.1 CSR), quand elle sert à poursuivre une infraction mineure, admissible? Le juge répond: "non" .

[55] The testimony of Sergeant Théoret made clear that this type of Charter-infringing conduct was regularly exercised by the municipal police upon demonstrators in the city streets.

[56] The court concludes that the actions of Constable Lessard, along with the concerted actions of all the police officers involved in this mass ticketing, constituted a willful or reckless disregard of the Charter rights of all the Critical Mass demonstrators. The courts must act to disassociate themselves from this conduct.

[57] This criterion supports the exclusion of evidence obtained pursuant to the violations of the petitioner’s Charter rights.

[61] The right to be free from arbitrary detention, as the Supreme Court has stated, is a guarantee of “one of the most fundamental norms of the rule of law: that the state may not detain arbitrarily, but only in accordance with the law.”[16]

[62] Clearly, the actions of the police officers in rounding up and ticketing this group of peaceful demonstrators strongly impacted these Charter rights. We are not dealing here with an attempt to merely put an end to an alleged CSR violation on a specific date, but rather a well-planned out strategy, authorized by the higher echelons of the police department, to prevent citizens from exercising their rights to demonstrate and express dissent. The fact that the law as a whole was declared unconstitutional only serves to emphasize the gravity of the Charter breaches.

[63] This criterion also mandates that the evidence that was gathered pursuant to the Charter violations be excluded.

[64] The present case involves a fairly minor infraction, for which the fines usually imposed (fifteen dollars plus costs) reflect its relative lack of gravity.

[66] While society always has a certain level of interest in the adjudication of any charged offence, in comparison to the gravity of the above-mentioned Charter infringements, society’s interest in the adjudication of this case is very low.

[67] Therefore, this final criterion also favours the exclusion of the evidence that was gathered pursuant to the Charter violations.

R. v. Stewart, 2000 (Article 129, entrave d'un agent de la paix en exercise de ses fonctions et Article 175, tapage... indirectement, l'article 1 du Règlement P-1 à Montréal (RRVM c. P-1 Article 1)[modifier]

R. v. Stewart, 2000 CanLII 2941 (MB PC)

Décision de la Cour provincial de Manitoba concernant l'article 129 du Code criminel, « entrave contre en agent de la paix » et l'article 175 du code criminel, tapage...

Un agent de la paix qui fait un erreur de droit n'agit pas en execution de ses fonctions et ainsi une arrestation portée en raison de cette erreur est illégale. D'ailleurs, une personne ne peut pas se trouver coupable en vertu des articles 129 ou 270 du code criminel. Aussi, chanter une chanson qui critique la police sur la place public ne constitue pas l'infraction de tapage.

Aussi, on a besoin de preuve d'entrave de pietons pour se faire trouver coupable de quoique infraction dont un élement essentiel est l'entrave de pietons.

De plus, l'exclusion de la preuve recoltée en raison de ces arrestations illégales est accordée.

Passages pertinents :

[12] Apparently registering their displeasure with the day’s events and the role of the police in it, they began to sing their own version of the nursery song “Old MacDonald Had a Farm”. Their version was not particularly imaginative. They sang that “ . . . on this farm he had some fucking pigs.” Their version found favour with some passers by and within a very short time 15-20 people gathered in front of the street musicians to join in the chorus. Occasionally the musicians and their chorus substituted the words “fascist pigs” for “fucking pigs”. The same lyrics continued, and the crowd sang or chanted along. Sometimes the chant was “pigs, pigs”. The sidewalk was about 8-10 feet in width, and the gathered crowd filled the sidewalk area.

[13] The Officers got out of their car and asked the musicians to stop singing and playing their guitars and to move along. While they had no particular difficulty getting through the crowd to speak to the musicians, their requests that the musicians cease and desist were ignored. The offensive lyrics continued.

[14] The officers then immediately arrested the accused and his companion for causing a disturbance, seized their guitars and put them in the trunk, and placed the two street musicians in the cruiser car after a cursory pat down search.

[39] Thus, something more than the mere use of abusive language is generally required to create a disturbance. Case law supports the proposition that abusive comments shouted at police (or anyone else) do not in themselves constitute the offence of cause disturbance. See for example R v. Peters (1982) 1982 CanLII 422 (BC CA), 65 C.C.C. (2d) 83 (B.C.C.A.), and R. v. Eyre (1972), 10 C.C.C. (2d) 236 (B.C.S.C.)

[41] In the context of the scenario before the court, the Crown argued that the disturbance created in the case at bar was the obstruction of the sidewalk. The Crown argued that the need to put an end to this obstruction justified the arrest. When pressed, the Crown took the position that had the musicians been singing “O Canada” rather that the offensive lyrics, an arrest would have been equally justified.

[42] It must be remembered that Officer Koniuck, one of the two arresting officers said she did not see anyone being impeded. Officer Evans did state that he observed some pedestrians who had to step around the gathered crowd. The focus of his concern, however, was clearly the content of the offensive lyrics, and in particular the use of the “f” word. As noted above, he stated his belief, in effect, that swearing simpliciter, in a public place, constitutes the offence of cause disturbance. He stated unequivocally that he would not have arrested the accused if the musicians had been singing their “protest song” without using the swear word. This is evidence that any sidewalk obstruction was minimal and insignificant, which would explain why it went unnoticed by Officer Koniuck. In addition, if the real concern was the obstruction of the sidewalk, one would think the officers would have at least brought this to the attention of the accused and the crowd, and endeavoured to get them to rearrange themselves so as to allow pedestrians clear passage. Rather, the officers simply told the musicians to “stop singing”.

[43] Moreover, the officers appear to be mistaken in their understanding of the nature of the offence of cause disturbance – in particular the requirement for an externally manifested disturbance. If a proper appreciation of its elements is lacking, how could the officers come to a proper subjective determination that the offence was “apparently” being committed?

[44] In any event, I find that obstruction must be significant enough to block or substantially hamper other persons in getting from one place to another before it attracts penal consequences under s. 175. There was no basis for a reasonable person to conclude that this was the situation in the case before me.

[45] I find that the arrest was unlawful. While there was evidence of shouting and swearing, a reasonable person in the position of these officers could not reach the conclusion that there was a reasonably foreseeable, unlawful discernible disturbance which resulted from this conduct.