R. v. NOAH, 2010 NUCJ 25

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. NOAH, 2010 NUCJ 25 Date of Judgment (YMD): 2010-11-26 File Number: 08-09-39 Registry: Iqaluit Applicant: MICHAEL NOAH -and- Respondent: HER MAJESTY THE QUEEN ________________________________________________________________________ Before The Honourable Mr. Justice E. Johnson Counsel (Applicant): Scott L.

Wheildon Counsel (Respondent): Carly Kovendi Location Heard: Iqaluit, Nunavut Date Heard: October 20, and December 11 2009, August 16 and October 29 2010 Matters: Charter Sections 7, 12 and 24, Criminal Code ss.25 , 495 and 529 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Around 4:30 a.m. in the morning of January 24th, 2009 Iqaluit RCMP received a telephone complaint from Sonia LeBlanc, the common-law spouse of the accused Michael Noah. The emotionally distraught LeBlanc told the dispatcher that she left her townhouse unit because she had a fight with Noah and felt unsafe. She started to cry on the phone and her conversation became disjointed. The dispatcher asked and LeBlanc answered a number of questions. LeBlanc said that as she fled her residence she heard Noah say, “call the cops, I will be ready for them”.

LeBlanc told the dispatcher that Noah was intoxicated and had recently moved some rifles from their usual storage place in the townhouse. Finally, LeBlanc told the dispatcher that Noah’s 14-year old daughter might be with him in the residence. [ 2 ] The dispatcher told the emergency response team (ERT) that the intoxicated Noah had barricaded himself in the townhouse with firearms and a hostage. [ 3 ] The ERT mobilized off-duty officers and organized a tactical emergency response to the apparent hostage situation. The team included Constable McClarity and his police dog, Oran. [ 4 ] Around 7:15 a.m.

McClarity, without Oran, and Constable Thompson tactically entered the townhouse through an open front door. They found it unoccupied, but seized two rifles. McClarity left to obtain a key to lock the front door of the townhouse, while Thompson remained in his vehicle near the building with the seized firearms. [ 5 ] A short time later, LeBlanc was driving to the police station when she saw Noah walking along a road towards his mother’s house.

She reported seeing him to the police and the information was passed on to McClarity and Thompson. [ 6 ] Shortly after McClarity departed, Thompson saw a person who matched Noah’s description enter the building. He radioed the new information to the ERT and McClarity returned to assist him. They attempted another tactical entry but found the townhouse was now locked.

They relayed the new information to the ERT and were instructed to create a perimeter around the building while the different options were considered. [ 7 ] About one hour later Thompson, McClarity with Oran, and two other officers made a second tactical entry of the townhouse using a key to open the front door. They entered the upstairs bedroom and saw Noah under a comforter. When they loudly announced their presence Noah woke up and complied with an order to raise his hands. Inexplicably he then put his hands under the comforter.

McClarity responded by unleashing Oran who ran and clamped his teeth into Noah’s right calf and dragged him from the bed. Over the next 20 seconds McClarity struggled to get Oran to release his grip on Noah’s calf as the other officers struggled to handcuff him. After Noah was handcuffed he was given a towel to stem the flow of blood from the bite and was taken to the hospital for treatment. He was charged with mischief, three counts of careless storage of firearms and two counts of possession of an unregistered firearm and then released. II. ISSUES [ 8 ] I have analyzed the arguments under five issues: (

a) Were the police authorized to enter the townhouse without a warrant? (

b) Was the use of any force in the apprehension or arrest of Noah justified under

section 25 of the Code? (

c) If force was justified and used, was such force objectively reasonable, having regard to the circumstances and dangers of the situation? (

d) If the force used was not objectively reasonable were Noah’s Charter rights breached? (

e) If Noah’s Charter rights were breached, what is the appropriate remedy? III. LAW

[ 9 ] In R. v. Feeney, 1997 CanLII 342 (SCC) , [1997] 2 S.C.R. 13 , [1997], S.C.J. NO.49 , the police, during a murder investigation in 1991, entered the accused’s house (an equipment trailer) without permission. When they received no answer at the door, they entered, roused the accused, touched his leg, ordered him to get up and took him to the front of the trailer for better lighting. The police arrested him after seeing blood on his shirt. [ 10 ] Sopinka J. analyzed the legality of the warrantless arrest in a dwelling house under both pre-Charter and post-Charter legal principles. [ 11 ] Under the pre-Charter law Sopinka J. considered section 495 (1)(

a) of the Code to determine if the police had reasonable grounds to believe the accused committed or was about to commit an indictable offence. At paragraph 24, he held the reasonable grounds requirement had both a subjective and an objective component. Although police officers may subjectively believe they have reasonable grounds for an arrest a judge must also be satisfied that the belief meets the objective test set out in R. v. Storrey, 1990 CanLII 125 (SCC) , [1990] 1 S.C.R. 241 , 53 C.C.C. (3d) 316 .

The objective test is whether a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Sopinka J. concluded the arrest was unlawful because neither test was satisfied. [ 12 ] Sopinka J. then considered the impact of the Charter on the analysis and concluded that police could only enter a dwelling house to make an arrest if they obtained a special kind of warrant authorizing the entry into the house to arrest the suspect. Since the Code did not have a provision for this type of warrant Sopinka J. read it in as a requirement.

He summarized the legal requirements for an arrest in a dwelling house as follows: “[51] To summarize, in general, the following requirements must be met before an arrest for an indictable offence in a private dwelling is legal: a warrant must be obtained on the basis of reasonable and probable grounds to arrest and to believe the person sought is within the premises in question; and proper announcement must be made before entering. An exception to this rule occurs where there is a case of hot pursuit.

Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court, nor does it need to be decided in the present case given my view that exigent circumstances did not exist when the arrest was made. I will elaborate on this last point presently.” [ 13 ] Parliament subsequently enacted

section 529.1 creating what are now known as Feeney warrants. That

section states: “529.1 A judge or justice may issue a warrant in Form 7.1 authorizing a peace officer to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending a person identified or identifiable by the warrant if the judge or justice is satisfied by information on oath that there are reasonable grounds to believe that the person is or will be present in the dwelling-house and that (

a) a warrant referred to in this or any other Act of Parliament to arrest or apprehend the person is in force anywhere in Canada; (

b) grounds exist to arrest the person without warrant under paragraph 495(1)(

a) or (

b) or

section 672.91; or 1997, c. 39, s. 2; 2002, c. 13, s. 23.” [ 14 ]

Section 529.3 defined the exigent circumstances exception to obtaining a warrant that were left open by Sopinka J. in Feeney as follows: “529.3

(1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in

section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under

section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.” [ 15 ] As I noted in R. v. Qaqqasiq (27 October 2003), Pangnirtung 08-02-6-1 (Nu. C.J.). and in R. v. Cooper [2009] Nu.J. No. 27 , 2009 NUCJ 25 , cases decided since Feeney have wrestled with the concept of “exigent circumstances” and the balance between rights to privacy and the duty of police officers to respond tcomplaints and protect public safety.

[ 16 ] In Qaqqasiq I noted the high standard necessary to satisfy the exigent circumstances and reviewed the types of fact situations from decided cases that met the test stating: “[52] The standard for lawfully entering a dwelling house to effect a warrantless arrest is a relatively high one. For the Charter-based presumption barring such actions to be displaced, both "reasonable grounds" to believe an indictable offence has or is about to be committed and "exigent circumstances" rendering it impractical to obtain a warrant must be present. From the Feeney decision and the examples found in

section 529.3 (2) such circumstances must be of a very serious and pressing nature. These include hot pursuit of suspected offenders (R. v. Haglof (2000) 2000 BCCA 604 (CanLII) , 149 CCC (3d) 248 (BCCA) entry and arrest in the face of compelling visible or aural evidence of an offence or the imminent destruction of evidence (R. v. Duong (2002) 2002 BCCA 43 (CanLII) , 162 CCC (3d) 242 (BCCA) , the reasonable belief that armed persons may be inside the residence (R .v. Golub (1997) 1997 CanLII 6316 (ON CA) , 117 CCC (3d) 193 (Ont.

CA) and the reasonable belief that someone’s safety may be in danger stemming from a disconnected 911 call from inside the premises (R. v. Godoy (1998) 131 C.C.C. (3d), 1999 CanLII 709 (SCC) , [1999] 1 S.C.R. 311 ).” [ 17 ] In the more recent case of R. v. Sanderson 2003 CanLII 20263 (ON CA) , [2003] O.J. No. 1481 , 57 W.C.B. (2d) 301 ,Macpherson J. noted the change in public attitude about the police response to domestic violence situations stating: “[45] There have been significant and commendable changes in recent years in the response of Canadian police to domestic violence situations.

There is now a much greater recognition by the police of both the extent and the seriousness of the problem, and the consequences for victims in the community, when the police fail to respond. Police officers are often the first persons called to respond in situations of domestic violence. In my view, it is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with their belongings. That is precisely what the police did in the present case.” A.

Were the police authorized to enter the townhouse without a warrant? [ 18 ] Relying on Feeney , Noah argues the police were not authorized to enter the townhouse on either the first or second entry.

Section 529.3 of the Code authorizes entry into a dwelling house if grounds to obtain a warrant are present, but due to exigent circumstances, it is impractical to obtain a warrant. Since no warrant was obtained the Crown must establish that exigent circumstances existed to enter without one. (

i) First Entry A.i.1 Defence Argument [ 19 ] Noah argues that the exigent circumstances on the first entry were weak. [ 20 ] In cross-examination, LeBlanc admitted that Noah was never physical to her or others that evening and never handled or said anything about using firearms. He made no threats except for the statement “call the cops, I’ll be ready for them” and that the statement was made when neighbours were knocking on the walls of the townhouse.

It could have been a reference to the neighbours rather to LeBlanc. [ 21 ] The cross-examination also revealed that LeBlanc’s belief about the presence of Noah’s daughter was based on very tenuous evidence. [ 22 ] Finally, the police evidence was contradictory on the purpose of the first entry. McClarity testified that the grounds for the arrest were that Noah had made threats while Thompson indicated it was because he had committed mischief. A.i.2 Crown Argument [ 23 ] The Crown argues that exigent circumstances were clearly present on the first entry.

The police entered the townhouse to remove a threat because LeBlanc told them she did not feel safe to return while Noah was there. She left in a hurry in her pajamas and told the

police there were high-powered rifles in the residence. She indicated Noah was intoxicated and had made the statement about being ready for the police. Finally, she said his 14-year daughter might be in the townhouse. [ 24 ] The police believed LeBlanc was the owner of the townhouse and that she had given them authority to enter. A.i.3 Analysis [ 25 ] I heard the voir dire on three different dates.

McClarity’s evidence was recorded in a transcript dated October 20th, 2009, Constable Ashley Browne’s evidence in a transcript dated December 11th, 2009 and the evidence of Thompson and LeBlanc was recorded in a transcript dated August 16th, 2010. [ 26 ] In Sanderson , the accused’s girlfriend, MacLaurin, contacted police and reported that Sanderson had assaulted her. The police met her and accompanied her to Sanderson's house in order to recover her property. Sanderson blocked access to the bedroom. The police asked him to stand aside. He did not. An altercation followed and he was arrested.

Sanderson was convicted of assaulting MacLaurin. However, the trial judge found that when Sanderson refused access to the police, given that the police had decided not to arrest him at that time, they should have left and MacLaurin should have pursued other avenues to recover her property. [ 27 ] MacPherson J. allowed the appeal and found the police entry into the residence was lawful. He held the police complied with the general test in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) , [1964] C.C.S NO. 359 , as applied in Canada in R. v. Dedman, 1985 CanLII 41 (SCC) , [1985] 2 S.C.R. 2 , [1993] O.J.

NO. 308 , and R. v. Simpson (1993), 79 C.C.C. (3d) 482, 20 C.C.C. (3d) 97, stating: “[33] In my view, the police officers' entry into the respondent's residence complied with the general Waterfield test and with the overlay of factors for applying it in the Canadian context as articulated in Dedman and Simpson. The officers were faced with a distraught woman in the middle of the night. She, and an independent witness, reported that she had been assaulted by the respondent. She had left the residence in only her pyjamas and without footwear - on March 29.

The altercation continued, and another assault took place, when the complainant returned to the house with Farrell to retrieve her dog and personal belongings. After she left a second time, the respondent followed her to Menzies' and Farrell's apartment where, in a heated exchange, he threatened to burn her personal belongings. [ 28 ] As in Sanderson , LeBlanc departed the townhouse she was sharing with Noah in the middle of the night in her pajamas after an argument.

Unlike the complainant in Sanderson , LeBlanc had not been threatened or assaulted and she did not accompany McClarity and Thompson to recover possession of her townhouse. [ 29 ] When LeBlanc called the police she was emotionally distraught. The tape recording of the call reveals she was sobbing so much that she had difficulty speaking. The dispatcher had to slowly pull the information from her while trying to calm her down.

The dispatcher then relayed the information to Thompson and McClarity. [ 30 ] McClarity testified he received the following information: “A Dispatch phoned the house and said there was an individual up on the plateau had been drinking, had rifles, it was alleged that he had made a comment that he said go ahead and call the police, he’s ready for them, and that there was a fourteen-year-old girl that may still be in the house, at the house. Q Yeah.

A And the caller, the woman or the common-law or whatever, the girlfriend wasn’t at the house any more, she had left, but this individual had rifles, had been drinking and, well, potentially there’s a fourteen-year old still in the house and he had made these comments. Q So let me just crystallize. He had rifles, he had been drinking and there is potentially a fourteen-year old in the house, that is the information you received? A That's correct, and he made these comments, that go ahead and call the police, he’ll be ready for them.

So it came in as a barricaded male.” [ 31 ] Thompson received similar information but also learned from Browne that Noah had made some comments about being ready for

the police when they came to the house. This new information probably led the ERT to conclude they were dealing with “a barricaded male” with a firearm situation. As Thompson testified: “A. Well, based on the information that I was given by the operator the OCC operator, just given the nature and - the nature of the call. It would be very much in line with the types of calls that that team would handle. And in previous instances that I have been involved with the ERT I can think of two in particular, they were both barricaded and – with firearms, and the ERT was called for both.

And in fact, the R1 ERT Team was likewise dispatched to attend both of those other calls.” [ 32 ] Although McClarity and Thomson possessed this information that subjectively satisfied them that they were dealing with an emergency situation, their explanation of their purpose in entering the townhouse was unclear. As recorded at page 46 lines 16-23, McClarity believed that Noah was to be arrested for making threats. However, as recorded at page 94 lines 13-18, Thompson believed Noah was to be arrested for causing a disturbance. [ 33 ] To lawfully make a warrantless arrest, section 495(1)(

a) of the Code requires a police officer to have reasonable and probable grounds to believe a person had committed or was about to commit an indictable offence. Alternatively, subsection (

b) requires a police officer to find the person committing a criminal offence. Uttering a threat is a dual offence that could qualify as the indictable offence. However, the information possessed by McClarity was insufficient to support this charge, and Noah was never charged with this offence. Causing a disturbance is a

summary conviction offence, but the evidence available indicated it occurred before the police arrived. In Sanderson , the complainant alleged that the accused had assaulted her. In the case at bar, LeBlanc testified that Noah never assaulted or threatened her nor made any reference to using firearms. [ 34 ] Although, the reasons for entering the townhouse are problematic, McClarity and Thompson possessed information that Noah’s daughter may be in danger not unlike the situation in R. v. Cooper [2009] Nu.J.

No. 27 , 2009 NUCJ 25 . [ 35 ] In that case, shortly after midnight on the evening of November 11th, 2008 Iqaluit RCMP dispatch received a complaint from the stepmother of 11 and 13-year-old boys. She told the police that the accused, her common-law husband, had assaulted her earlier that evening. She also told the police that he was intoxicated and that she was concerned about the safety of the boys. Two officers on duty went to the accused's residence to check on the safety of the boys. One officer knocked on the door and the accused answered.

The officer told him that he had received information that the accused had a dispute with his wife and that he wanted to check on the safety of the boys. The accused told the police the boys were safe and asleep and refused permission to enter. This answer did not satisfy the officers and they successfully forced open the door and arrested the accused for assaulting a peace officer. [ 36 ] Although I acquitted the accused because the police had no lawful authority to forcibly enter the premises I did find the police had a duty to investigate the initial complaint to determine if further action was warranted.

However, I also held that the police could not assume an emergency when they received contradictory information from the accused and were refused entry, stating: “[41] A 911 call may permit the police in appropriate circumstances to infer that the caller may be in distress. It was inferred in Godoy because the call was disconnected. The case at bar does not fall into the 911 call category. There was no evidence about the 911 system in Nunavut nor any evidence to suggest the call was in this category. The evidence indicates that this call was a routine complaint to be checked out by the police.

The police obtained minimal evidence about the alleged danger to the boys. There was no evidence of any alleged harm against the boys in the house in the past and nothing to suggest there was any present danger except that the accused had been drinking. The police could not assume an emergency and forcibly enter to investigate until they found out otherwise as occurred in Godoy .” [ 37 ] The complaint in the case at bar also came through the RCMP dispatch but was treated more seriously because of the alleged threat and the presence of rifles in the house.

The police had a duty to investigate to ensure that Noah’s daughter was safe. They believed LeBlanc owned the townhouse and implicitly had her permission to enter the residence. Under all these circumstances I am satisfied that exigent circumstances existed to enter the townhouse without a warrant. B. Second Entry B.1 Crown Argument [ 38 ] The Crown argues that exigent circumstances were also present on the second entry because the first entry did not alleviate the uncertainty about Noah’s intentions.

[ 39 ] After McClarity and Thompson seized the rifles and ammunition, they intended to secure the townhouse by obtaining a key to lock the door and then guard it to prevent further entry. However, the plan was interrupted when a person believed to be Noah entered the townhouse. [ 40 ] The problem facing the police was the lack of new information to clarify what appeared to be the “barricaded male” with weapons situation described by McClarity. Noah did not respond to any attempt to contact him.

The officers had seized rifles and ammunition in the townhouse and it was reasonable for them to assume that he may have rearmed during that period. The officers were also concerned that there might be other weapons in the townhouse because the first search was not as thorough as they desired. [ 41 ] Under these circumstances, it was impractical for the police to obtain a warrant and the exigent circumstances that existed for the first entry continued to be present to justify the second entry.

B.2 Defence Argument [ 42 ] Noah argues that the first entry effectively ended the apparent emergency situation that the police were facing and provided a significant amount of new information. McClarity and Thompson did a thorough room-by-room search and seized two rifles as well as some ammunition and other firearm paraphernalia including a rifle cleaning kit. A larger-caliber hunting rifle with a trigger lock was found in a gun case. A .22 caliber rifle was found with ammunition in the magazine but no rounds in the chamber. [ 43 ] However, they did not find Noah or his 14-year old daughter.

Additionally they did not find any other evidence to confirm their suspicions that they were dealing with an armed barricaded male with a hostage. Although they had the opportunity to secure the residence by posting a guard, they failed to do so. Noah was able to reenter the townhouse and the incident continued. [ 44 ] After Noah reentered the townhouse, the police created a perimeter around it. They spend about one hour organizing and strategizing about the next move.

Although Browne thought about obtaining a Feeney warrant he decided against it because he thought exigent circumstances existed to enter the townhouse. [ 45 ] Although the second entry was made using a key, the police were not entering on the authority of LeBlanc because, as Browne testified, the police entered on the basis of exigent circumstances. B.3. Analysis [ 46 ] As noted earlier, the standard to satisfy exigent circumstances is a high one.

Section 529.3(2) codifies a number of the cases decided before and after Feeney stating:

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.” [ 47 ] After the first entry the police had no objective evidence to believe that entering the townhouse was necessary to prevent imminent bodily harm or death to any person. The potential danger to Noah’s daughter had been eliminated. They also knew that the townhouse had been thoroughly searched and the rifles had been removed.

Both McClarity and Thompson described the careful room-by-room tactical entry. At page 97 lines 14-17, Thompson testified that they had searched through closets and under beds. [ 48 ] The only justification provided for the second entry was speculation and suspicion that Noah may have somehow rearmed when he was out of the townhouse or had access to rifles so thoroughly hidden in the townhouse that they were missed during the first entry and thorough search.

Yet Thompson admitted in cross-examination at page 96 lines 17-27 and page 97 lines 1-10 that he had not received any information to suggest Noah had any rifles in his possession or threatened to shoot anyone nor had he engaged in any physical violence.

The only basis for the suspicions was that he had moved a gun case the day before. [ 49 ] There is no evidence to suggest the entry was necessary to prevent the imminent loss or destruction of evidence as required by subsection (b). [ 50 ] I am satisfied that this evidence falls far below the high standard for this statutory definition of exigent circumstances and that there were no reasonable grounds for the suspicions of the police. The Godoy or Sanderson 911-type of emergency exigent circumstances situation, present in the first entry, was absent in the second entry because of the new information obtained.

Instead of having some reasonable evidence to support the belief of the police that they were facing an armed intoxicated barricaded Noah with a hostage, the police had only suspicion and speculation about his intentions, and they knew he did not have a hostage. [ 51 ] In the absence of a warrant or statutory/common law exigent circumstances, the only other justification was that the police had obtained LeBlanc’s permission to enter. Although Browne testified at page 28 lines 14-21 that he obtained a key from LeBlanc, she testified page 47 lines 9-12 that she did not provide the police with the key.

She testified at page 28 lines 23-27 and page 29 lines 1-5 that she did not have a key because Noah had lost his keys the night before and she had given her keys to him. She recalls the key being delivered to her.

In any event, Browne testified in cross-examination at page 76 lines 14-22 that the police were not operating on the authority of the owner to enter but on exigent circumstances. [ 52 ] I am satisfied that there were no exigent circumstances to justify in law the second warrantless entry. [ 53 ] It is understandable that the police should err on the side of caution when dealing with situations where there is potential danger and risk to individuals or the public at large from reported misuse of firearms. These situations are not uncommon in Nunavut.

However, the police must also be aware that a warrantless entry of a dwelling house creates a high standard to meet and should only be undertaken on solid evidence supporting the reasonable and probable grounds for the entry. In borderline situations, such as the second entry the police should obtain a warrant unless it is clearly impracticable. [ 54 ] In this case, Browne testified that he considered obtaining a Feeney warrant. However, he was overruled by Staff Sergeant Lee Tomfohr, who convinced him there was not enough time to obtain a warrant or more background information.

Yet, they talked about the situation for an hour, while nothing else happened. During this time there was no hostage at risk or other evidence to suggest Noah was creating a danger to the public. There was no pressing reason to enter the townhouse because it was surrounded. Browne testified there were no extraneous circumstances that led to the tipping point. It was simply an order to go in. I am satisfied there was ample time to obtain a warrant. C. Was the use of any force in the apprehension or arrest of the accused justified under

section 25 of the Code? C.1 Crown Argument [ 55 ] Relying on

section 25 of the Code, the Crown argues the police were authorized to use force in the circumstances they were facing in the case at bar. [ 56 ] The four officers were entering a situation with a potentially armed and barricaded individual. Noah had not responded when the police tried to contact him by telephone. The officers knew rifles had been in the house at some point and it was reasonable for them to contemplate that he may have rearmed during that period.

They also knew the complainant described Noah as being intoxicated and angry, as well as making the comment about being ready for the police. [ 57 ] Unleashing Oran was necessary because the accused made the sudden movement of putting his hands under the duvet. They suspected he may have been reaching for a weapon and responded with the dog rather using their drawn firearms. The use of the police dog was the only choice they had. [ 58 ] The Crown relies on Chartier v. Greaves [2001], O. J.

No 634 , 2001 CarswellOnt 563 , to argue that the police are not required to employ only the least amount of force to accomplish their objective.

[ 59 ] Finally, the Crown argued that Chartier and R. v Belter, 2008 ABQB 389 , 2008 CarswellAlta 863 , indicate that scrutiny of the use of force should follow a sequential analysis. First, was the use of any force in the apprehension justified under

section 25? Second, if force was justified, was it objectively reasonable having regard to the circumstances and dangers of the situation? In assessing the objective reasonableness of the force used a court should be careful to consider the exigencies of the moment and not measure “with nicety” the exact amount of force required. C.2 Defence Argument [ 60 ] Noah agrees that

section 25 of the Code as interpreted in R. v. Nasogaluak, 2010 SCC 6 (CanLII) , [2010] 1 S.C.R. 206 , 251 C.C.C. (3d) 293 , authorizes the use of force in order to complete an arrest or to prevent an offender from escaping their custody. However, the degree of force used is constrained by the principles of proportionality, necessity and reasonableness.

The police officers must believe on reasonable grounds that force is necessary. [ 61 ] Noah also agrees with the sequential analysis approach advocated by Belter and in particular that the reasonableness of the actions of the RCMP in this case should not be measured in the lens of hindsight but in the light of the circumstances facing the officers at the time. [ 62 ] Noah argues his behaviour can only be characterized as co-operative or passive-resistant. Therefore, using the RCMP use of force model filed as exhibit 1, the only tools warranted in controlling him were communication or soft measures of force.

They did not permit the release of the police dog. [ 63 ] In the circumstances of this case, where the residence had been cleared of weapons and no one found inside, Noah did not pose a threat to four officers with guns trained on him. Noah argues the facts in Belter are distinguishable from the case at bar. In that case, the accused abducted a 17-year old girl at knifepoint and sexually assaulted her. Police responded to a 911 call and chased the accused by car and then on foot. He hid in bushes down a dark embankment. When he did not respond to police commands to surrender, a police dog was unleashed.

The dog bit him and he was quickly apprehended and handcuffed. In the case at bar, Noah was not fleeing and was lawfully in his own residence. C.3 Analysis [ 64 ] In Nasogaluak , the Supreme Court of Canada held the Alberta Court of Appeal did not err in upholding the trial judge’s finding that the police used excessive force in arresting the accused. [ 65 ] The Court noted section 25(3) also prohibits a police officer from using a greater degree of force unless the officer believes that it is necessary to protect himself or herself, or any person under his or her protection from death or grievous bodily harm.

As stated by LeBel J.: “[34]…The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59 ).

If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.” [ 66 ] LeBel J. cautioned about judging police against an unrealistically high standard, stating: “[35] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.

Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA) , 60 C.C.C. (2d) 211 (B.C.C.A.) : In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they

existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude.[p.218]” [ 67 ] Although LeBlanc owned the townhouse, she had been in a relationship with Noah for about four years. Noah lived in the unit with his 14-year old daughter and had his own set of keys. They shared a phone and post office box. He was an informal tenant of LeBlanc.

Although the relationship ended after the incident, it was his residence and he had a legal right to occupy it until he was given proper legal notice to vacate. [ 68 ] On the other hand, the police entered the unit unlawfully as held earlier. Four officers and a police dog entered Noah’s bedroom while he was sleeping and trained their pistols on him. He suddenly woke up when the police announced their presence and obeyed a command to raise his hands. However, for some unknown reason he put his hands back under the duvet.

The police assumed Noah might be reaching for a weapon and argue they had no choice but to release Oran. [ 69 ] The first question that I must be address is whether it was necessary to use force under all the circumstances. Defence counsel provided evidence from McClarity about the use of force model that the RCMP use for training purposes. [ 70 ] Lethal force is the use of a firearm and it is used where an officer fears death or grievous bodily harm. McClarity testified that standard intermediate weapons issued to officers were batons, aerosols and pepper spray.

Force below these intermediate weapons was the use of handholds. He was unable to say where the use of a police dog fit in the model because it never came up in his training. However, he agreed it would fit into a hard response to aggressive behaviour by a suspect. [ 71 ] The model also suggests soft or hard responses to perceived situational factors. When the officer perceives the suspect is co- operative or passive resistant he should use the soft response of communication. If there is active resistance the response is to exert physical control.

Aggressive assaultive behaviour calls for a hard response with intermediate weapons. Finally, lethal force is only used where the officer perceives he or she is facing death or grievous bodily harm. [ 72 ] I am satisfied that Noah’s actions were correctly classified by defence counsel as co-operative or passive resistant. According to the model the response should have been continued attempts at communication.

While the officers subjectively believed Noah’s action created a threat to them that called for a hard response, the belief must be objectively reasonable. [ 73 ] The alleged threat was that Noah was reaching for a hidden weapon under the duvet. In all the circumstances this belief was not objectively reasonable. As held earlier the emergency was over. The townhouse had been thoroughly searched and all the firearms and ammunition seized. LeBlanc and Noah’s daughter were safe and the police had no information to suggest Noah had any other rifles in his possession.

Finally, he had not threatened to shoot anyone nor had engaged in any physical violence against LeBlanc. The situation was quiet and would have stayed quiet if the police had not entered. Yet, the quiet and inability to communicate with Noah by phone is the justification for entering. [ 74 ] The police over-reacted to the initial perceived emergency and unlawfully entered the townhouse. The unlawful entry was compounded by suspicion and speculation about the risks they could be facing from Noah that were not based on any solid facts.

The police assumed the worst possible scenario and never considered that Noah might simply have passed out in his bed from drinking. In Belter , Graessner J. found it was objectively reasonable for the police to use the canine unit because they were apprehensive about going into the bushes to arrest the suspect. His conclusion was based on the solid facts that had occurred before the suspect ran into bushes. As he stated: “[44]…The suspect had allegedly committed crimes of violence. He had fled the police. He had crashed his stolen car and fled into the dark. He may have been armed with a knife.

Constable Bellerose could not see the suspect in or through the bushes, even though the dog was indicating a human presence. His flashlight did not show the suspect. He did not have the benefit of an infra-red camera as did Air 1 above. “ [ 75 ] The police made a mistake in judgment by bringing Oran with them on the second entry. The thinking is incongruous because the potential risks facing McClarity and Thompson before the first entry were higher than the risks they faced on the second entry.

Nevertheless, they did not bring Oran along on the first entry but did so on the second entry where the potential risks were lower.

[ 76 ] The use of force was not justified under all the circumstances. Although Noah did not testify, my knowledge of human nature suggests he would have been terrified when he woke up facing a police dog and four guns trained on him. Absent Oran, he might have reacted differently and the officers could have used the soft response of communication to carry out the arrest. D.

If force was justified and used, was such force objectively reasonable, having regard to the circumstances and dangers of the situation? [ 77 ] Since force was not justified, it follows that it was not objectively reasonable to use Oran to apprehend Noah. The force was excessive. E. If the force used was not objectively reasonable, were Noah’s Charter rights breached? E.1 Defence Argument [ 78 ]

Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived of any of them except in accordance with the principles of fundamental justice.

Section 12 of the Charter provides that a person must not be subjected to cruel and unusual treatment or punishment. [ 79 ] Noah alleges that the security of his person was breached by the deployment of the police dog, and that his treatment by the canine unit was cruel and unusual. [ 80 ] Noah relies on a number of cases in support of his arguments about the Charter breaches: Re: Singh and M.E.I., [1985] S.C.R. 177, (1985) 1985 CanLII 65 (SCC) , 17 D.L.R. (4th) 422 ; R. v. Morgentaler 1988 CanLII 90 (SCC) , [1988] 1 S.C.R. 30 , (1988) 62 C.R. (3d) 1; R. v.

Neale (1985) 1985 CanLII 1197 (AB KB) , 20 C.C.C. (3d) 415 ; Suresh v. Canada [2002] 1 S.C.R., 3 2002 SCC 1 ; R. v. Gladue [1993] A.J. No. 1045 , 1993 CarswellAlta 1070 ; U.S.A. v. Cobb 2001 SCC 19 , (2001) 152 C.C.C. (3d) 270 . E.2 Crown Argument [ 81 ] Part of the Crown argument rested on the assumption that the force used was not excessive because of the use of force arguments answered earlier. Those arguments have now been rejected and need not be considered again. [ 82 ] The Crown also argues that Noah’s minor injury did not satisfy the outrage to decency test.

He was bitten on the leg not the neck leaving a few little teeth marks. The dog was disengaged quickly when the police handcuffed Noah and there was no prolonged suffering. The police also attempted to minimize harm by immediately wrapping the wound with a towel. He was taken to the hospital for examination immediately after the incident. [ 83 ] Finally, the Crown argues there was no evidence to suggest the officers acted maliciously.

E.3 Analysis [ 84 ] Under s. 7 of the Charter, Noah must establish that he was deprived of life, liberty or security of the person, and that this deprivation was not in accordance with the principles of fundamental justice. Any s. 7 analysis based on the force used in arresting a person must start with s. 25 of the Criminal Code . The use of force as contemplated under that provision is authorized by law. I have held that the use of force was unnecessary and that Noah could have been arrested without the use of force. I am satisfied that his rights under

section 7 were breached.

[ 85 ] To establish a s. 12 violation, Noah must prove on a balance of probabilities that he has been subjected to cruel and unusual treatment or punishment. I find that there is nothing inherently cruel or unusual in the police using a properly trained police dog to apprehend a suspect in appropriate circumstances, even if the use of the dog may necessarily result in some physical injury to the person being apprehended. [ 86 ] Belter is a good example of an entirely appropriate use of a police dog to assist in an arrest. Another case of appropriate use of a police dog is Robinow v.

Vancouver (City), 2003 BCSC 661 , 59 W.C.B. (2d) 203 , which Graesser J. considered in Belter . In that case, Robinow hid under a car in a darkened carport after fleeing a stolen vehicle. The police had no information about the suspect other than that a vehicle had been stolen and the suspect had fled to avoid arrest. Unlike Belter no warning was given. The dog was simply instructed to locate the suspect. That meant that the dog would bite and hold him until he was commanded to release. Robinow struggled with the dog until he emerged from under the car with the dog still attached to his arm.

On command the dog released him. [ 87 ] The evidence from McClarity satisfies me that Oran was well- trained and responsive to commands. However, there seems to be some confusion in the RCMP training on where the use of dogs fit into the use of force model. They seem to fall between intermediate weapons and lethal force and should only be used in response to aggressive behaviour such as an officer facing a suspect with a knife. The other very logical use of a police dog is to stop a suspect who is fleeing from police as occurred in Belter and Robinow and is specifically authorized by section 24(4)(

c) of the Code. [ 88 ] In the case at bar the police were not facing aggressive behaviour and Noah was not fleeing from them. They were unlawfully in his bedroom. Under all these circumstances I am satisfied that he was subjected to cruel and unusual punishment contrary to

section 12 of the Charter. F. If Noah’s Charter rights were breached, what is the appropriate remedy? F.1 Defence Argument [ 89 ] Noah argues his rights were seriously breached and only a stay of proceedings will remedy the breaches, following the general principles from Doucet-Boudreau v. Nova Scotia, [2003] 3 S.C.R. 3 , 2003 SCC 62 ; R. v. Regan, 2002 SCC 12 (CanLII) , [2002] 1 S.C.R. 297 , (2002), 161 C.C.C. (3d) 97; R. v. O’Connor 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411 , (1995) 103 C.C.C; R. v. Conway 1989 CanLII 66 (SCC) , [1989] 1 S.C.R. 1659 , [1989] S.C.J.

No. 70 . [ 90 ] Noah submits that courts are more willing to stay proceedings in cases involving police misconduct relying on the following cases: R. v. Tran, 2010 ONCA 471 , 257 C.C.C. (3d) 18 ; USA v Cobb; Gladue; R. v Murphy, 2001 CanLII 358 (SK PC) , [2001] CarswellSask 613 , 29 M.V.R. (4th) 50 ; R. v. Wiscombe, 2003 BCPC 418 (CanLII) , [2003] CarswellBC 3030 , 2003 BCPC 0418 ; R. v. Spannier, [1996] CarswellBC 2665 , 1996 CanLII 978 ; R. v. S.T., [1997] O.J. No. 5579 ; R. v. Bremer (Ont. Prov. C.) November 29, 1989); S.P. v. Quebec, [1997] AQ No. 77 ; R. v. E.J.A. (unreported) B.C. Prov. C.

December 17, 1999 Prince George Registry; R. v. Woodland, 2001 BCPC 255 (CanLII) , [2001] CarswellBC 2248 , 2001 BCPC 0255 ; R. v. Lewis, 2001 BCPC 426 (CanLII) , [2001] CarswellBC 3077 , 2001 BCPC 0426 . F.2 Crown Argument [ 91 ] The Crown argues that a stay of proceeding is not the appropriate remedy. [ 92 ] Relying on R. v Carosella, 1997 CanLII 402 (SCC) , [1997] S.C.J. No 12 , 112 C.C.C. (3d) 289 , the Crown argues that the case at bar does not qualify as one of the “clearest of cases” even if the second entry was unlawful.

The actions of the police in all the circumstances were not so egregious as to warrant a stay of proceedings. [ 93 ] The Crown relies on Nasogaluak to argue that the breaches should be considered as sentencing factors. [ 94 ] Alternatively, the Crown relies on R. v. Grant (2009), 2 S.C.R. 353 , 2009 SCC 32 to argue that the weapons seized should be saved under section 24(1) and go into evidence. The first entry was made under exigent circumstances and the weapons seized were non-

prescriptive evidence. The officers acted in good faith and the truth seeking function would be better served by admitting the evidence. F.3 Analysis [ 95 ] As noted in the very recent Tran decision, the leading post-Charter stay decisions are R. v. O'Connor , 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411 , (1995) 103 C.C.C (3d) 1, Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC) , [1997] 3 S.C.R. 391 , 118 C.C.C (3d) 443 , and R. v. Regan , 2002 SCC 12 (CanLII) , [2002] 1 S.C.R. 297 . 52 W.C.B. (2d) 150.

In these decisions, the Supreme Court developed more specific guidance for when a stay is an "appropriate and just" remedy under s. 24(1). [ 96 ] Epstein J.A. noted a third criterion mentioned in Tobiass : “[87] The court went on to suggest that there may be a third criterion in cases where it is not clear that the abuse in question is sufficient to warrant a stay.

In such cases, "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits": para. 92.” [ 97 ] She also noted a number of cases where a stay was granted specifically for police brutality including the Gladue, Spannier, Murphy, Wiscombe cases relied on by Noah and R. v. Markowska, 2004 ONCJ 332 (CanLII) , [2004] O.J. No. 5153 , 67 W.C.B. (2d) 123 , R. v. Fryingpan, 2005 ABPC 28 (CanLII) , [2005] A. J. No 102 , 69 W.C.B. (2d) 547 , R. v. Cheddie, [2006] O.J.

No. 1585 , 2006 CarswellOnt 3483 , and R. v. Merrick 2007 CarswellOnt 3855 , 2007 ONCJ 260 . [ 98 ] All of these cases except Cobb and Markowska consist of active physical abuse of the accused that can be summarized as follows: (

a) Gladue – police shoved her face into a cement wall, and caused pain by unreasonably tightening the handcuffs, causing bruising to her cheek and forehead (

b) Murphy – police tackled the accused from behind, handcuffed him roughly, rubbed his face in the snow and prevented him from cleaning himself up when he lost control of his bowels (

c) Wiscombe – police wrestled the accused to ground, struck him on the kidneys and then pepper-sprayed him (

d) S.T. - the accused and an accomplice stole a car, instigating a high-speed chase that ultimately involved about 20 police cars. The stolen car hit a police cruiser. The accused and the accomplice stated that the officers told them to lie on the ground, and that they were beaten by unknown persons. During this beating the police officers were yelling at them to disclose the name of the driver of the vehicle. When the accused admitted he was the driver, the beating stopped (

e) Bremer – the accused fled after striking an officer. He was lawfully taken to the ground but then abused by unknown officers (

f) S.P. – police caught up with two youths after they had stolen a motor scooter. One was carrying a hammer but neither was acting in a threatening manner. One officer struck both of them with a flashlight because he did not know their intentions. One youth received a head injury that required treatment at emergency. The officer also threatened to call for a police dog to attack them (

g) E.J.A – the accused was arrested, handcuffed and placed on the ground. While restrained by police officers he was kicked in the head and ribs by an unidentified police officer (

h) Woodland – impaired driving charges were stayed where an officer slapped a cigarette package out of the accused’s hand and threatened him with violence if he got up (

i) Lewis – impaired and refusal charges were stayed where the argumentative accused was subdued as he tried to leave the police station. He suffered a head injury and was unnecessarily held in jail overnight (

j) Fryingpan – the accused and a group of friends were sitting and drinking in a neighbour's car, having done so several times before with the neighbour's permission. The car was unlocked and inoperable. He was tasered and strip searched (

k) Cheddie - the police received information from an informant that two men were planning to commit an armed robbery. The informant had a criminal record, was not always reliable, and was at the time under detention and faced criminal charges. The police conducted surveillance of a restaurant identified by the informant as the place where the two men could be found, and observed Cheddie and another man arrive. They both seemed to match the informant's general description.

The police officer in charge determined that they should be stopped, as the informant's information indicated that they would commit the robbery shortly after they left the restaurant. As a result, he called for a "takedown". Cheddie and his companion were stopped at gunpoint, forced out of their car, searched, and arrested when marijuana was found in their possession. Subsequent to his arrest, a police office found a gun in Cheddie's possession, at which point he alleged he was repeatedly assaulted by the police

(

l) Merrick – the accused was charged with impaired driving and driving while over the legal limit. As he was about to enter his house after an evening of drinking, a police officer asked to speak to him. He told him he wanted to go the bathroom. When he emerged from the bathroom two officers grabbed him and placed him under arrest. As they pushed him up the stairs he saw a third officer with a gun. When he placed his hands in a defensive position the officer fired a Taser at him and a bolt of electricity jolted him. As he fell backwards on the landing he was tasered a second time.

He was then picked up and put in an ambulance. [ 99 ] In Cobb , the prosecutor and judge in the requesting state made public statements that if the accused fought extradition he would receive the maximum punishment and would be anally raped in prison. The court found that even the threat of violence in order to coerce individuals to forego legal rights was sufficient to warrant a stay of proceedings. [ 100 ] In Markowska the accused was arrested during the search of business premises where she worked as a massage therapist.

When the warrant was executed Markowska was giving a lawful massage to a client who lay on a table covered only by a towel while she wore her white uniform. The police entered the room with drawn firearms. One of the officers pointed a gun at her face and ordered her to get down on the floor where her hands were handcuffed behind her back. [ 101 ] In the case at bar the officers did not administer direct physical force and acted in good faith. Absent the unlawful entry it might not meet the “clearest of cases standard”.

However, the addition of the unlawful entry tips the scales into the clearest case category and I am satisfied that a stay must be granted. [ 102 ] There was also an unlawful entry into a dwelling house in Merrick. Although the force was administered by a Taser, the impact on the accused was equally traumatic. In granting a stay, Judge Andre held the invasion of the home and the infliction of temporary pain seriously impacted on the administration of justice stating: “[63] In my view, the cases state, and the Crown is right, that the stay is a remedy which should only be imposed in the clearest of cases.

But it seems to me that this is a clear case where, in fact, the cumulative impact of these violations mandates that the charges against Mr. Merrick are stayed.

The public and the administration of justice requires that in clear cases where an accused man's rights -- or woman, I should say, have been infringed the only appropriate remedy quite frankly, in my view, is that the prosecution should not be allowed to continue, if only to protect the integrity of the rights of a person who is charged with criminal offences.” [ 103 ] Grant clarified the law on the admission of evidence obtained in breach of the Charter rights of the accused person. It only comes into play where a case does not fall into the clearest of cases category.

Since I have held that a stay is warranted in this case, a Grant analysis is not necessary. However, assuming I am incorrect about granting a stay I provide the following comments. IV. CONCLUSION [ 104 ] The charges against the accused do not fall into the “serious” category and there are a number of problems with the Crown’s case. In the light of the evidence about the right of the accused to be present in the residence, the likelihood of a conviction for mischief is minimal. The accused has a good defence to possession of unlicensed firearms because he is an Inuk. Kilpatrick J. held in Nunavut Tunngavik Inc. v.

Canada (Attorney General) [2003] Nu.J. No. 2 , 2003 NUCJ 1 that the registration requirements of the Firearms Act, R.S.C. 1995, c. 39 is subject to an interlocutory injunction staying the implementation of the legislation in Nunavut. [ 105 ] The Winchester had a trigger lock on, and was stored in a gun case, making it unlikely that the charge of careless storage of this weapon would succeed. [ 106 ] The Crown will likely succeed on the careless storage of the .22 caliber rifle that was seized during the lawful first entry. The first part of Grant favours admission because the evidence was non-conscriptive.

The second test favours exclusion because of seriousness of the breaches on the second entry that taint the first entry. The third part tips the scales in favour of exclusion because, in my opinion, the long-term reputation of the administration of justice would be more harmed by allowing the prosecution to proceed, than in ending it with a stay. [ 107 ] Noah’s application is granted and the charges against him are stayed.

Dated at the City of Iqaluit this 26th day of November, 2010 ____________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice