Her Majesty the Queen - v. -, 2022 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 18 Date: April 14, 2022 Information: 90404536 Location: Big River First Nation _____________________________________________________________________________ Between: Her Majesty the Queen - and - Hubert Leo Netmaker Appearing: Jonathan Foreman For the Crown Julia Quigley For the Accused DECISION ON BLENDED VOIR DIRE AND TRIAL M.C.R. MCAULEY , J [ 1 ] The accused is charged that on or about the 31 st day of March, A.D. 2020, at Big River First Nation in the Province of Saskatchewan, did: Count 1: resist Cpl.

GRANELLO a peace officer for the Royal Canadian Mounted Police, engaged in the execution of his duty to arrest by pulling away and pushing contrary to

Section 129 (

a) of the Criminal Code . Count 2: knowingly utter a threat to cause bodily harm to Cst. A. FRY contrary to

Section 264.1(1) (

a) of the Criminal Code . Count 3: knowingly utter a threat to cause bodily harm to Cst. R. HALL contrary to

Section 264.1(1) (

a) of the Criminal Code . Count 4: knowingly utter a threat to cause bodily harm to Cpl. GRANELLO contrary to

Section 264.1(1) (

a) of the Criminal Code .

[ 2 ] The trial proceeded by way of a voir dire to address Mr. Netmaker’s Charter application that his ss. 8, 10(

a) and 10(

b) rights were infringed and that any evidence obtained as a result should be excluded pursuant to s. 24(2). Crown and defence consented to any admissible evidence from the voir dire shall apply to the trial proper. Mr. Netmaker did not testify on the voir dire . Cst. Fry and Cpl. Granello testified on behalf of the Crown. EVIDENCE [ 3 ] On March 31, 2020, Big River RCMP received two 911 calls from the residence of the accused, Hubert Netmaker. The complainant, BL was a guest in Mr. Netmaker’s home, and alleged her common-law spouse, RR had assaulted her. Three RCMP police members, Cst. Hall, Cst. Fry, and Cpl.

Granello attended the home of Mr. Netmaker. The officers knew Mr. Netmaker was not involved in the 911 call incident. They are well acquainted with Mr. Netmaker due to numerous complaints concerning him and his residence. [ 4 ] The officers knocked and the door was opened by RR. When asked where BL was, he pointed down the hallway. The house was in general disarray but absent of any indication of any ongoing fights or disturbances. In fact, there was one person eating and watching T.V. in the living room. [ 5 ] Cpl. Granello proceeded to the hallway to stand guard, Cst.

Hall walked into the kitchen to question two males, and Cst. Fry went down the hallway to locate BL. Cst. Fry found her in the last bedroom talking to and laughing with Mr. Netmaker and his spouse on the bed. When BL saw Cst. Fry, she looked visibly embarrassed and advised she was fine. She did not have any visible injuries. [ 6 ] When Cst. Fry came into his bedroom, Mr. Netmaker became angry advising her to immediately leave his bedroom and house. Cst. Fry took BL into the adjacent bedroom to attempt an audio statement from her. After two to three minutes, Cst.

Fry escorted BL outside the residence due to the continual shouting of Mr. Netmaker. Cst. Fry was in the residence for a total of five minutes. [ 7 ] When Cst. Fry and BL went outside, Cst. Hall and Cpl. Granello remained in the residence to continue their investigation. Cst. Hall was in the kitchen querying two males while Cpl. Granello continued standing guard in the hallway for officer safety. [ 8 ] Mr. Netmaker came out of his bedroom shirtless with no visible weapons on his person. He was shouting at the officers to leave his residence as they were not welcome.

When they did not leave, he uttered threats to stab them. Mr. Netmaker was standing at the end of the hallway by his bedroom door four to five feet from Cpl. Granello. Cpl. Granello did not have any safety concerns with Mr. Netmaker if he kept his distance. [ 9 ] Upon hearing the threats, Cst. Hall joined Cpl. Granello and threatened to taser Mr. Netmaker if he refused to calm down. Mr. Netmaker’s spouse was also attempting to calm him during this exchange. After the taser threat, Mr. Netmaker did calm down, and was then handcuffed and arrested.

He immediately apologized to the officers and the handcuffs were removed. The officers did not plan to charge him at this time. Cst. Hall and Cpl. Granello remained in the residence for a total of 10 minutes. [ 10 ] When the officers were exiting the yard, Mr. Netmaker came outside onto the porch steps threatening to have his gun with him the next time they came back. Only when he was later arrested on unrelated matters was he charged for this incident. POSITION OF PARTIES [ 11 ] Defence argues the highest reasonable expectation of privacy pertains to a private residence.

Where there is a warrantless search, the Crown must establish on a balance of probabilities it is a reasonable search. While police officers have authority to investigate 911 calls, they are only entitled to enter or check a residence for safety reasons, but this authority does not extend to a search of the residence. Had the police officers believed entry was warranted, their presence was no longer necessary or required upon establishment that the 911 caller was safe or removed from the residence. [ 12 ] Defence argues Mr. Netmaker’s ss. 8, 10(

a) and 10(

b) Charter breaches are made out the moment the officers enter the

residence without consent or the requisite grounds. The officers did not consider reasonable or alternate options of entry although lessermeans existed. There were no signs of conflict or unrest in the house that presented a danger to anyone. The police officers knew Mr.Netmaker was not involved in the 911 call yet they remained in the residence creating a conflict situation. As a result, Mr. Netmakerwas nearly tasered, arrested and handcuffed in the privacy of his own home. He would not have reacted the way he did had the officersnot entered his residence.

Rights to counsel, police warnings or reasons for arrest were not read to Mr. Netmaker at any time as theofficers did not intend to charge him. [13] As a result of the breaches, all evidence upon and after police entry should be excluded pursuant to s. 24(2) of the Charter. [14] Crown argues police officers have a common law authority to investigate 911 calls. The officers were only in the residencefor a short duration of time to determine the complainant’s safety when Mr. Netmaker began to utter threats. Mr.

Netmaker is solelyresponsible for escalating the situation to a crisis where the officers had safety concerns. The officers remained in the residence to de-escalate the situation only when Mr. Netmaker started uttering threats. Once the situation was under control, they exited the residence. [15] As this was a domestic violence situation, the officers were required to investigate the 911 call. The intrusion was minimaland interference reasonable and necessary. When the officers were leaving the property, Mr. Netmaker choose to re-engage by utteringadditional threats.

The officers took all reasonable steps and nothing more. In addition to the officers de-escalating the situation, theyused their discretion to not charge him when it was within their power to do so. [16] As such, there are no Charter breaches with no evidence to exclude. ISSUES 1. Whether the warrantless entry to the residence was a violation of Sections 8, 10(

a) and 10(

b) of the Charter. 2. Section 24(2) Analysis. ANALYSIS 1. Whether the warrantless entry to the residence was a violation of Sections 8, 10(

a) and 10(

b) of the Charter.

SECTION 8 [17]

Section 8 of the Charter reads “everyone has the right to be secure against unreasonable search or seizure.” The underlyingissue is whether the initial entry into the residence or the continued presence of police after the 911 caller was safely removed amounts toan unlawful and unreasonable search. [18] Warrantless searches are prima facie unreasonable under s. 8 of the Charter.

A search without warrant is presumptivelyunreasonable and the applicant seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness(Hunter et al. v Southam Inc., (SCC), [1984] 2 SCR 145). [19] In R v Edwards, (SCC), [1996] 1 SCR 128 [Edwards] the Court held that a reasonable expectation ofprivacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (

i) presence at the time of the search; (ii) possession or control of the property or place searched;

(iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [20] Edwards is distinguishable as the Court found the applicant had no reasonable expectation of privacy in his girlfriend’sresidence. In the present case, Mr.

Netmaker is the home-owner, he was not the subject of the 911 call, there were no weaponsallegations, he was in his bedroom at the time of the entry, there was no ongoing disturbance at the time of police entry, visitors andoccupants were peaceably occupying the premises, and the 911 caller was found safe and uninjured. [21] R v Godoy, (SCC), [1999] 1 SCR 311 [Godoy], is a seminal case for warrantless entry by police concerning911 calls.

In Godoy, the Supreme Court of Canada held that police officers have a common law duty with respect to 911 calls to enter ahome without a warrant if they have reasonable grounds to believe it is necessary to do so to protect a person’s life or safety. Whilepolice officers have authority to enter a residence, locate the caller, and aid as may be required, they do not have the authority to searchthe residence or otherwise intrude on privacy (Godoy, at para. 22). [22] In Godoy, the officers were facing exigent circumstances, an unknown emergency.

They had a justifiable reason to believethe life or safety of a person inside the home was at risk and their only course of action was to immediately ascertain the 911 caller’shealth or safety by forcing their way into the home. When police arrived at the apartment, the emergency was not resolved, and thepolice did not know whether the 911 caller was still in danger. As a result, the warrantless entry was justified.

Godoy is distinguishablefrom the present case in that BL’s safety was determined and she was removed, yet the officers continued their investigation inside theresidence. [23] The Godoy entry is described as reasonable and probable grounds or reasonable suspicion. Godoy does not give policeofficers sweeping authority to enter a home without a warrant to investigate.

It was held in Godoy that it was justifiable use of policepowers to enter the apartment in response to a disconnected 911 call, but that any greater interference with the sanctity of the home couldonly be justified with further information, such as the grounds for arrest for an indictable offence. [24] Godoy narrowly limits when police can enter a person’s home without a warrant in response to a 911 call. Police conduct willbe rendered unlawful if it exceeds what is necessary and reasonable in the circumstances.

If the 911 caller can be located and assistedwithout the forcible entry into a residence, the police authority ends there (Godoy, at para. 22). Godoy is unequivocal and narrowlyconstrued that once safety is confirmed, the officers must leave. While domestic violence is a serious matter, and the officers have aresponsibility and duty to investigate to ensure safety, they do not have the right to stay and investigate. [25] The primary concern here is whether the officers acted with lawful authority and conducted their search in a reasonable andlawful manner.

In the present case, there is no question the police were acting in lawful authority in response to the 911 call. The issue iswhether their conduct by entering the residence was a justifiable use of their powers. [26] Police officers may only enter a residence if they have a search warrant, arrest warrant or consent of the homeowner, wherethere are exigent circumstances, or where the common law doctrine of “hot pursuit” applies (R v Feeney, (SCC),[1997] 2 SCR 13 at para 51 [Feeney]). They are allowed to continue their investigation if they believe it is necessary, but they can do sooutside the residence.

Police may also enter a residence under exigent circumstances pursuant to s. 487.11 of the Criminal Code if itwould not be practical to obtain a search warrant. In the present case, I do not find any exigent circumstances existed. Once BL wasfound safe, police were no longer authorized to remain in the residence to conduct a further investigation.

Their continued presencecaused a conflict situation and, by remaining in the residence, became trespassers (Feeney, at para. 74). [27] In R v Timmons, 2011 NSCA 39, 275 CCC (3d) 59 the mother became worried as her daughter was at her ex-boyfriend’sapartment and did not answer her cell phone. Police were called and, while on the doorsteps, they heard a scream. They were justified inneeding to speak to her to ensure safety. They could have requested her to step out had they been concerned for her safety but insteadentered the apartment (at para. 50). As a result, a s. 8 breach was found.

[28] In the present case, it was reasonable for police to want to speak to BL to ensure safety. However, short of police entry intothe home without a warrant, there were alternatives available. The officers could have called her outside to speak in private. In decidingto enter the residence, they could have left immediately upon locating her.

Police authority to investigate a 911 call extends to locatingthe caller to determine if assistance may be required but, without more, does not extend to entry or search of premises or staying in theresidence longer than necessary. [29] Police have an implied licence to knock to communicate with the occupant and to do so will not constitute a s. 8 breach solong as their conduct does not go beyond what is permitted by the implied licence (R v Evans, (SCC), [1996] 1 SCR 8at para 11).

Where police conduct extends beyond the implied licence to knock, their actions constitute a search for the purposes of s. 8(R v MacDonald, 2014 SCC 3 at para 26, [2014] 1 SCR 37). In the present case, the officers did knock and were informed of BL’slocation.

By entering the residence, and by continuing to stay in the residence without consent, extends beyond their authority andconstitutes a search pursuant to s. 8. [30] R v Waterfield, [1963] 3 AII ER 659 [Waterfield], an English Court of Appeal decision, a court of binding precedent, outlinesthe modern limits of the law that authorizes a police officer to stop, and then conceivably, detain a person. [31] This case produced what is known as the Waterfield test, incorporating the common law “ancillary power doctrine”, that setsthe limit of police authority to interfere with a person’s liberty or property.

The Waterfield test helps determine the limits of policeauthority to interfere justifiably with a person’s liberty or property, for instance, during random stops and detentions. The Waterfield testis based on reasonableness of police intrusion on privacy. The Supreme Court in R v Mann, 2004 SCC 52, adopted this two-pronged testat para. 24: [24] In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the generalscope of any duty imposed on the officer by statute or at common law.

If this threshold is met, the analysis continues to considersecondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated withthe duty. [32] According to the Waterfield test, if police actions are not protected under common law or statute and are neither necessary norreasonable in the circumstances, the police will have exceeded their common law powers. [33] In the present case, Cst. Fry eventually took BL outside to obtain an audio statement. Had BL been in any danger at this time,she could have simply left with the officers.

BL had been located safe and uninjured. The officers were satisfied there were no firearmsor weapons present to pose a risk to anyone. As the officers had no reasonable grounds to believe any person’s safety was at risk, theircontinued presence in the house was neither justified nor warranted. [34] In R v Davidson, 2017 ONCA 257, 352 CCC (3d) 420 when police arrived at the intersection where they were called to, anyemergency that had existed had ended as the boy was now safely in the mother’s arms and not in any harm.

While police only needreasonable belief that someone is in danger, there is a very narrow power afforded to police to ensure safety of only people in imminentdanger (at para. 26). [35] In R v Fava, 2020 ONSC 5520, there was a 911 call pertaining to a verbal argument in the house involving the caller breakingup with her boyfriend. She was trying to remove her private property from his residence. When police arrived, they could plainly see hersafe just inside the door and within earshot to ask her to come outside before the accused tried to shut the door.

The police were found tohave failed to seek reasonable alternatives before forcing the door open and entering the home without a warrant and then remain therefor ten minutes with no indication there was any emergency. What police did establish was she was upset and simply wanted to get herpersonal belongings and leave. [36] R v Sucuqui, (Ont Sup Ct) [Sucuqui], involved a third party 911 call from a person in another unit. Novictim was present, but the officers remained in the residence to search a closet.

When the officers were allowed access into theapartment and observed no victim, they had no grounds to believe that the life and safety of anyone was in present danger. Therefore,police had no justification for proceeding with a more intrusive search of the accused’s residence (at para. 20). [37] Sucuqui termed this emergence situation the “present danger” notion. Since the police were correctly found by the trial judgeto have exceeded their powers at the time of the altercation with the accused, it follows that the Crown has failed to prove they were

engaged in the execution of their duty at the relevant time. [ 38 ] In R v Wilhelm , 2014 ONSC 1637 , a neighbour called 911 regarding her next-door neighbour’s teenaged daughter, Maryanne Wilhelm, being in harm’s way from her mother. The trial judge did not articulate why the actions of the police were reasonably necessary on an objective assessment of the totality of the circumstances (at para. 137). It was held there were no grounds, beyond unsupported speculation, for believing that Maryanne Wilhelm was injured or imminently in need of assistance or protection.

Police officers had no evidence of an emergency justifying warrantless, non-consensual entry to the residence. [ 39 ] In the present case, had BL refused or was not allowed to present herself at the door, police could have gone in briefly to assist in bringing her outside. O nce she was found safe, police presence in the residence was not warranted as the emergency was resolved. The only ongoing concern after BL was located was the police presence which aggravated Mr. Netmaker creating a conflict situation and leading to an unlawful detention and arrest.

The police warnings, rights to counsel or reasons for arrest were not read or explained to Mr. Netmaker. He was not provided an opportunity to call legal counsel. He was then released but not charged on these matters. When he was later arrested and charged on unrelated matters, this is when he is charged on these matters. [ 40 ] R v Stairs , 2022 SCC 11 , is a recent appeal that involves the permissible scope of a search incident to arrest in a person’s home.

The Court defined the appropriate balance under s. 8 of the Charter between an accused’s privacy interests in their home and valid law enforcement objectives, when the police search an accused’s home incident to their lawful arrest.

The basic common law standard for search incident to arrest continues to apply when the police search an area of an accused’s home that is within that person’s physical control. [8] Balancing the demands of effective law enforcement and a person’s right to privacy in their home, we conclude that the common law standard for a search of a home incident to arrest must be modified, depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply.

However, where the area is outside their physical control, but it is still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if: - the police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search; and - the search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home. [9] Given the factual matrix of this case, it is not necessary to decide whether reasonable suspicion also applies to investigation- related purposes, such as evidence preservation and evidence discovery.

We leave this issue for another day. [10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal. [ 41 ] In the present case, the officers did not conduct their search in a reasonable fashion considering Mr.

Netmaker was not the focus of the 911 call, there is no safety risk to the police, accused, 911 caller or the public, there was no mention of weapons, and BL was already safely removed from the residence. They had no reason to fear officer safety as Mr. Netmaker had no weapons on his person nor were there any in plain view. In fact, Cpl. Granello advised he was not concerned with Mr. Netmaker’s threats if he kept his distance from him.

Any crisis or safety concern had already been resolved and their continued presence was neither necessary nor reasonable in the circumstances. [ 42 ] In addition, the police officers did not have the requisite grounds to enter or remain in the residence pursuant to s. 495 (1) (

a) of the Criminal Code that reads “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.”

Section 495 allows police to arrest with reasonable grounds but confers no authority to enter a dwelling house. The Supreme Court in Feeney holds that police can only enter a home to arrest with a warrant or in exigent circumstances (at para. 51).

[43] While Crown submits the intrusion was minimal per Godoy and interference was reasonable, I find the officers did not actwith lawful authority nor did they conduct their search in a reasonable and lawful manner by entering the residence of Mr. Netmaker. Consequently, their conduct was not a justifiable use of their powers. SECTIONS 10(

A) AND 10(B) [44]

Section 10(

a) and 10(

b) of the Charter reads “Everyone has the right on arrest or detention (

a) to be informed promptly of thereasons therefore; and (

b) to retain and instruct counsel without delay and to be informed of that right.” [45] During Mr. Netmaker’s interaction with the police, he was, by definition, both psychologically and physically detained andentitled to be informed of his right to instruct and retain counsel without delay (R v Suberu, 2009 SCC 33 at paras 37 and 41, [2009] 2SCR 460). He was psychologically detained when the police were restricting his movements in his own home, even in his ownbedroom. He was physically detained when he was threatened with a taser and then handcuffed. Mr.

Netmaker was not, at any time,read his police warnings or rights to counsel or informed of the reason for his detention. He was not provided a lawyer call as the policedid not intend to charge him with this incident. As Mr. Netmaker was psychologically and physically detained, I find there to be ss.10(

a) and 10(

b) Charter breaches. 2. Section 24(2) Analysis [46] The Court in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] created a list of factors to consider when determiningwhether a person had been detained for the purpose of ss. 9 and 10 of the Charter. The Court also created a new test for determiningwhether evidence obtained by a Charter breach should be excluded under s. 24(2) of the Charter, replacing the Collins test (R v Collins, (SCC), [1987] 1 SCR 265). [47] As I have found ss. 8, 10(

a) and 10(

b) Charter breaches, I now assess s. 24(2) which states that once a violation of anindividual’s Charter rights have been found, the evidence obtained through the violation must be excluded if its inclusion would bringthe administration of justice into disrepute. [48] The Grant test consists of three parts: 1.

Seriousness of the Charter-infringing state conduct, which requires an assessment of whether the admission of the evidence wouldbring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (whichincludes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith); 2.

Impact on the Charter-protected interests of the accused, which focuses on how the accused person was affected by the stateconduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity); and 3. Society's interest in an adjudication on the merits, which focuses on how reliable the evidence is in light of the nature ofthe Charter breach. [49] The Ontario Court of Appeal stated in R v Fountain, 2017 ONCA 596 at para 71, 351 CCC (3d) 291, that a s. 10(

b) breach issignificant on its own: [71] Still, the Charter right at stake here exists, in part, to ensure detainees have reasonable access to legal advice in order to rectifythe disadvantage they have in preserving the right to silence, and so that they can learn about their legal rights relating to their detention. It enables detainees to get beyond learning they have a right to silence, to receiving advice on how to exercise that right. In my view,condoning the failure by the police to respect this well-entrenched Charter right by admitting Mr.

Fountain’s statements would do moreharm to the long-term repute of the administration of justice than the exclusion of his statements. [50] With respect to the three steps in Grant, I am required to assess the seriousness of the Charter-infringing conduct and itsimpact on the accused’s Charter-protected interests, and then weigh these considerations against society’s interests in having the chargeagainst him adjudicated on its merits. In balancing the three Grant considerations, where the first and second Grant criteria favour

exclusion, the third factor “will seldom, if ever, tip the balance in favour of admissibility” ( R v McGuffie , 2016 ONCA 365 at para 63 ). [ 51 ] The officers were not deliberately acting in bad faith by entering Mr. Netmaker’s residence. Domestic violence is a serious matter. However, the infringement of a Charter -protected right is a serious matter, whether the officers acted in good faith or not. Ignorance of the Charter standards does not equal good faith.

The impact of the breach was significant as police entered a private residence not authorized under common law or statute and stayed longer than was reasonable or necessary having no regard to Mr. Netmaker’s wishes. Police entry led to Mr. Netmaker being nearly tasered, detained, handcuffed, and later arrested when minding his business in the sanctity of his home. Police were aware Mr. Netmaker was not involved in the 911 call. He was not provided his rights to counsel nor advised of why he was being detained or arrested as the police had no intention to charge him at this point in time.

In this case, there was no need for the officers to enter the residence at all. They could simply have asked RR to bring her to the door so they could ascertain her welfare. They could have removed her from the residence before attempting to obtain a statement from her. It seems they did not consider less intrusive means to fulfill their duties, but felt they had an unfettered power to occupy Mr. Netmaker’s residence, even when he emphatically expressed his lack of consent.

Their mission may have been a noble one, but I am not sure it was carried out in “good faith.” [ 52 ] R v Sabados , 2015 SKCA 74 at para 35 , 460 Sask R 269 states that legal advice is necessary. The denial of an accused’s right to counsel is a serious breach. Without the benefit of legal advice prior to providing incriminating evidence to the police, favours exclusion of evidence. This is an unusual situation in that, while Mr. Netmaker was not charged at this time and did not provide any incriminating evidence, he was still arrested, detained, handcuffed and nearly tasered into compliance.

Only when he was later arrested on unrelated matters was he charged for this incident. Police cannot conduct an unlawful arrest, breach significant Charter rights, and avoid responsibility by not laying charges. [ 53 ] After considering the Grant factors, I find that admission of the evidence upon and after entry to the residence would bring the administration of justice into disrepute. Despite the seriousness of domestic violence and uttering threats to police officers, the entitlement to privacy within one’s own home should not be interfered with unless it is necessary or reasonable in the circumstances.

CONCLUSION [ 54 ] There is no denying Mr. Netmaker’s actions towards the police is inexcusable. However, state intrusion on privacy must be both necessary and reasonable, and police conduct will be rendered unlawful if it exceeds these standards. By remaining in the residence to continue their investigation after satisfying safety concerns, extends beyond police authority, and constitutes a search pursuant to s. 8. There is no highest expectation of privacy than in one’s own home. [ 55 ] Mr. Netmaker was detained and arrested without any of the police warnings or Charter rights read to him.

These are significant ss. 10(

a) and 10(

b) Charter breaches. The police should not be allowed to arrest and detain a person, not read Charter rights and police warnings, not provide a lawyer call, and avoid responsibility by not laying charges. [ 56 ] To succeed in a prosecution under both s. 129 (

a) and s. 270 of the Criminal Code , the Crown must prove beyond a reasonable doubt that the officers were engaged in the execution of their duty at the time when the arrest was made. As the police officers became trespassers upon and after entry, I find the arrest of Mr. Netmaker to be unlawful. Consequently, the resist arrest charge has not been made out. [ 57 ] Section 495 (1) (

a) of the Criminal Code , reads “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence” permits police to enter a house under exigent circumstances. No such conditions existed here that would allow police entry to Mr. Netmaker’s residence.

Section 495 allows police to arrest with reasonable grounds but confers no authority to enter a dwelling house. [ 58 ] Section 34(1) of the Criminal Code , reads that “A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.” Section 34(2) lists the factors to consider in determining whether the act committed is reasonable in the circumstances. On the merits of the facts, s. 34 would provide a defence on the uttering threats charge as Mr. Netmaker was using verbal and not physical force to evict the trespassers. He did not make threats to use a firearm while the officers were in his home. The firearm threats were uttered as police were leaving his yard.

[ 59 ] I am satisfied that admission of the evidence in this case would adversely affect the fairness of the trial and bring the administration of justice into disrepute. Accordingly, the evidence will be excluded. [ 60 ] As such, I acquit the accused on all four counts on Information 90404536. ________________________ M.C.R. McAuley, J