R. v. Clayton, 2020 BCPC 81

Citation: R. v. Clayton 2020 BCPC 81 Date: 20200408 File No: 17035 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RENA NICOLE CLAYTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: W. Silliker Counsel for the Defendant: N. Elson, Articled Student Place of Hearing: Port Hardy , B.C. Date of Hearing: February 14, 2020 Date of Judgment: April 8, 2020 INTRODUCTION: [ 1 ] In the evening on July 26, 2017 Rena Clayton's mother made a 911 call that her daughter had just left her residence with her three grandchildren and was intoxicated.

The caller was concerned about the children being with Ms. Clayton and wanted someone to check on Ms. Clayton’s children – the caller’s grandchildren. [ 2 ] Constables Leah and Eskeson were on duty that night and received the information from dispatch. The officers went to Ms. Clayton’s apartment and told her that they were there to check on the well-being of her children. She was initially cooperative but became angry after the officers told her that the Ministry of Children and Family Development (MCFD) was being called to conduct a

safety check. She attempted to close the front door but was prevented from doing so by Cst. Leah who had placed his foot in the door.She tried to push him away by grabbing at his police vest in the chest area which caused Cst. Leah, Ms. Clayton and Cst. Eskeson to fall. [3] Ms. Clayton was immediately placed under arrest and is charged with assault of Cst. Leah in the execution of his duty. She washandcuffed and taken to the detachment where she was released some hours later. [4] The issue in this case is whether Ms.

Clayton was justified in using or attempting to use force to allow her to close her frontdoor and prevent Cst. Leah from entering her residence. THE EVIDENCE: [5] Both Ms. Clayton's mother and Ms. Clayton reside in the same apartment block. The police have a key to enter without havingto be buzzed in by an occupant. They did not speak to Ms. Clayton's mother but went directly to Ms. Clayton's apartment. They knockedon her door which was answered by Ms. Clayton. [6] Constable Leah told her that they were there to check on the well-being of the children.

Constable Leah testified that Ms.Clayton had glossy eyes and a slur to her speech and in his opinion was displaying some level of intoxication. He testified that during thediscussion with Ms. Clayton, he had to repeat questions. He could smell the odour of marijuana. He testified that he has dealt withhundreds of individuals who are impaired at some level and estimated, on their brief conversation, that she was somewhere between afive and six out of ten with ten being "falling down drunk".

He also testified that she had no difficulty standing. [7] He told the Court that the apartment was quiet and that he saw a young child in the apartment through the open doorway. Ms.Clayton was initially cooperative but became angry when Constable Leah told her that they were calling MCFD to do a safety check. [8] During their discussion Ms. Clayton had her right hand on the door to the apartment and upon being told that MCFD werebeing called, she became frustrated and angry and tried to slam the door closed.

Constable Leah placed his foot in the doorway to preventher from doing so. [9] He testified that she pulled the door open and then stepped forward and grabbed his police vest with one hand and made agesture towards his face with the other hand. In essence, she was trying to push him out of the doorway. [10] Constable Leah stepped aside to get out of the way but Ms. Clayton's grabbing at his vest and pushing him, resulted inConstable Leah, Constable Eskeson and Ms.

Clayton all falling sideways in the hallway outside the apartment door. [11] In cross-examination, Constable Leah agreed that he had no information about why Ms. Clayton's mother was concerned aboutthe well-being of her grandchildren other than that Ms. Clayton was intoxicated. He testified that a 911 call of that nature would have apriority of a two or a three with four being the lowest priority and one the highest priority. [12] It was put to Constable Leah in cross-examination that based on his observations there was nothing that indicated an immediaterisk to the children.

His response was that he was trying to come to a determination about whether or not there was any risk. He agreedthat he did not see anything unusual and that there were no signs of any disturbance. [13] He agreed that he was going to wait for a social worker to arrive and do a safety check before entering the apartment and agreedthat they were the appropriate agency to evaluate whether there was any safety concerns regarding these children. [14] When asked if he agreed that neither the conversation with Ms.

Clayton nor any of his observations indicated that there was animmediate threat to the children, his response was “no, other than her level of intoxication, which was an issue." POSITION OF COUNSEL: [15] Crown counsel asserts that Constable Leah had an obligation to check on the welfare of the children after his concerns werejustified objectively. He characterized Constable Leah's actions as “monitoring the situation” until the Ministry representative arrived tocheck on the children.

Crown counsel says that the objective justification for the police concerns was based on the phone call from Ms.Clayton's mother and Cst. Leah’s observation that Ms. Clayton displayed some level of intoxication. [16] Defence counsel says that while the police have authority to investigate 911 calls to ensure the safety of the public, in thesecircumstances, that authority didn’t extend to preventing Ms. Clayton from closing the door to her apartment. [17] He further asserts that when Cst.

Leah placed his foot in the doorway, he made a warrantless entry into the home, infringed Ms.Clayton's right to privacy and she was therefore justified in trying to move him out of her doorway so she could close the door. THE LEGAL FRAMEWORK: [18] Defence counsel referred me to two very helpful cases: R. v. Goday, (SCC), [1999] 1 S.C.R. 311 and R. v.Cooper, 2009 NUCJ 25. [19] From those cases, and in particular, from Godoy, I have distilled a number of principles that apply in circumstances where apolice officer enters or attempts to enter, a dwelling house in response to a 911 call.

I summarize these principles as follows: 1. Residents have a recognized privacy interest in the sanctity of their home. 2. One aspect of this privacy interest is the right to be free from intrusion or interference: R v. Edwards, (SCC),[1996] 1 S.C.R. 128 at para. 50. 3. A forcible entry by police into a private dwelling home constitutes a prima facie interference with a person's liberty and

property. 4. The privacy interest to be free from intrusion or interference must give way where there is concern that a person’s life may bein danger. Danger may be inferred in appropriate circumstances such as a dropped or disconnected 911 call. 5. Public policy concerns clearly require that the police have authority to investigate 911 calls but whether or not they maylawfully enter a dwelling house in the course of such an investigation will depend on the circumstances of each case. 6.

The court must consider whether or not the conduct at issue falls within the general scope of any duty imposed by statute orrecognized common law. 7. If the conduct does fall within a police officer's common law or statutory duty, the court must determine whether the conduct atissue involves an unjustifiable use of police powers in the circumstances. 8.

The justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to whichsome interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty tothe public good, the liberty interfered with, and the nature and extent of the interference: R. v. Simpson, (1993) (ON CA), 79 C.C.C. (3rd) 482 (Ont. C.A.) applying R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) at p. 499. 9.

In responding to a 911 call the police have authority to investigate that call and, in particular, to locate the caller and determinehis or her reasons for making the call and provide such assistance as may be required. The police authority for being on private propertyin response to a 911 call ends there and they do not have further permission to search premises or otherwise intrude on a residenceprivacy or property. 10. The interference with liberty must be necessary for carrying out the police duty and it must be reasonable: Dedman v. TheQueen, (SCC), [1985] 2 S.C.R. 2 at para.35. 11.

The police intrusion and a forced entry into a dwelling must be limited to the protection of life and safety: Godoy (supra), para.22. 12. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If thiscan be done without entering the home with force such a course of action is mandated. [20] Each case will be considered in its own context, keeping in mind all the surrounding circumstances. I turn now to the evidenceand the circumstances in this case which I take from the testimony of the sole witness - Cst. Leah.

DISCUSSION - THE EVIDENCE AND CIRCUMSTANCES: [21] In the case at bar, the 911 caller was not inside Ms. Clayton’s residence. [22] The only information that Cst. Leah had when he spoke to Ms. Clayton at the door to her apartment was that Ms. Clayton’smother reported that Ms. Clayton was intoxicated, had left the grandmothers apartment with the children and that she was concernedabout the welfare of the children. Cst. Leah received the call from dispatch at 7:25 pm and arrived at Ms. Clayton’s apartment about fiveminutes later. [23] Cst. Leah spoke with Ms.

Clayton and observed her to exhibit some level of impairment. He told her that they were there tocheck on the well-being of the children. Ms. Clayton was cooperative with him and only became angry when he told her that MCFD wasbeing called to carry out a safety check. Cst. Leah described Ms. Clayton as being in the mid-range of impairment. The apartment wasquiet and there were no signs of anything that would indicate the children were in danger. He saw a child through the doorway and therewas no evidence that the child appeared to be upset, frightened or in danger. [24] There was no evidence that Cst.

Leah spoke to the grandmother – who made the 911 call - to ascertain the specific concerns shehad about the safety of the children. This would have been relatively easy to do – the grandmother lived in the same apartment complexand the police have the key to the entrance. [25] I also consider the time of the 911 call. It was in the early evening and not in the early hours of the morning which, if the latter,would have raised more concern. [26] The facts in Cooper (supra) are remarkably similar to the facts in the case at bar.

There, two police officers attended at Mr.Cooper's residence to check on the safety of his two sons after his common-law wife made a 911 call and reported that Mr. Cooper hadassaulted her, he was intoxicated and she was concerned about the safety of his two boys who lived in the home as well. Mr. Cooperanswered the door and became upset when one of the officers informed him of the purpose of the visit. Mr. Cooper told them that theirinformation was incorrect, refused to allow them to enter the residence and attempted to close the door. One officer put his foot in thedoor to prevent it being closed. Mr.

Cooper pushed the chest of the officer with his hand to prevent the officer from entering theresidence resulting in a charge of assaulting a peace officer engaged in this duties. [27] As in the case at bar, when the officers approached the home, it was quiet and calm and there were no sounds of disturbancecoming from the house. The officer testified that he was going to the Cooper residence to investigate an assault and the safety of thechildren in the house.

He also testified that he had no intention of going into the house but was there just to make sure that "everythingwas okay." [28] Johnson, J. citing Godoy, referred to the principle that police officers must have exigent circumstances for a warrantless entryinto private property. He found that the police obtained minimal evidence about the allegations of danger to the boys and what thoseconcerns were. He found no evidence of any harm alleged or otherwise against the children in the past and nothing to suggest that the

children were in any present danger except that Mr. Cooper had been drinking. [ 29 ] He found that while the police did have a duty to check the residence to determine if further action was warranted, upon encountering Mr. Cooper who told them the information about an earlier assault and his intoxication were not correct and upon getting resistance from Mr. Cooper, the police, in those circumstances, should have reassessed the situation. In those circumstances, he found that the evidence based upon their observations [the quiet house, no signs of disturbance] and Mr.

Cooper's insistence that the caller's evidence was incorrect was not sufficient to cause the police to infer that the children were in distress. They should have obtained more information from the stepmother, who called 911. [ 30 ] Ultimately, he found that the forced entry of the police was unlawful and the resistance of Mr. Cooper [the push to the officer's chest] was justified in law to defend his property. ANALYSIS: [ 31 ] I find the reasoning in the Cooper decision compelling and applicable to the case at bar. The officers had a duty to attend Ms. Clayton’s residence to make a preliminary assessment.

While Ms. Clayton appeared to be intoxicated, the apartment was quiet and there was no indication that the children were in distress or in danger. This situation was more akin to a routine call as opposed to a situation in which there were clear or articulable concerns about someone being in distress or immediate danger. [ 32 ] Upon encountering resistance from Ms.

Clayton and a refusal to allow them to enter her apartment by virtue of her attempting to close the front door, the officers ought to have backed off and reassessed their course of action. [ 33 ] A reassessment of the situation would likely have included further communication with Ms.

Clayton's mother to understand and ascertain her particular concerns regarding the children. [ 34 ] At paragraph 41 of Cooper , Johnson, J. stated: The police could not assume an emergency and forcibly enter to investigate until they found out otherwise …. [ 35 ] I agree. [ 36 ] Based on the circumstances before me, there was nothing objectively justifiable to support even an inference that the children were in danger. [ 37 ] This reasoning is further supported by the fact that the officers had already called MCFD and were awaiting the arrival of a social worker within the next fifteen minutes or within the hour who had the authority to enter the premises to carry out a safety check on the well-being of the children.

This is further bolstered by Cst. Leah’s own evidence that he was not planning on entering the residence until the social worker arrived. [ 38 ] In

summary, before the police are lawfully authorized to forcibly enter a person's home, there must be sufficient evidence and appropriate circumstances to justify such an extraordinary intrusion upon an individual's privacy and the sanctity of their own home. Those circumstances will vary. While Constable Leah’s concern for the safety of the children is to be commended, there must be something more than a vague report that a parent is intoxicated to justify an intrusion into someone’s home.

There was no evidence before me that would justify even an inference that the children were in danger and accordingly, a forcible entry into Ms. Clayton's residence to check on their safety. CONCLUSION: [ 39 ] I conclude that the forced entry by Cst. Leah was not justified in these circumstances. [ 40 ] I find that Ms. Clayton's resistance was justified and she is acquitted of the charge. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia