R. v. Barrow, 2011 ONCJ 239

COURT FILE No.: Toronto – College Park DATE: 11/05/03 Citation: R. v. Barrow , 2011 ONCJ 239 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ELEANOR BARROW Before Justice F.

Bhabha Heard on December 14, 2010 Reasons for Judgment released on May 3, 2011 John Cisorio.......................................................................................... for the Crown Eleanor Barrow....................................................The Defendant on her own behalf Christopher Murphy.............................................................................. amicus curiae BHABHA J.: Introduction [ 1 ] On December 14, 2010 the defendant, Eleanor Barrow, was tried on one count of attempting to disarm a police officer and one count of assault resisting arrest. [1] At the conclusion of her trial, I found Ms.

Barrow not guilty of assault resisting arrest, but guilty of attempting to disarm a police officer. These are my Reasons for Judgment. Overview of the Case [ 2 ] The incident giving rise to both charges took place at a women’s shelter. Ms. Barrow was not a resident of the shelter and her presence was not welcome there. As a result, the police were called to intervene. The lone office who arrived on the scene found the defendant in the midst of eating breakfast. When the officer was unable to persuade Ms.

Borrow to leave the premises immediately, she attempted to take physical control of the defendant without formally arresting her. [ 3 ] The defendant was not compliant and resisted the officer’s attempt to take physical control over her. In the ensuing struggle, the defendant reached for the officer’s firearm. The firearm was loaded. The defendant had her hand on the firearm for a very short period of time before the officer successfully pried Ms. Barrow’s hand away. The gun never left the officer’s holster.

With the assistance of staff members, the defendant was arrested for attempting to disarm the officer but not without incident. The defendant was verbally abusive and physically resistive. The defendant was never charged with trespassing. Issue [ 4 ] The central and narrow issue in the trial was whether the officer was in the lawful execution of her duties when she took physical control over the defendant without arresting her, and if she was not, whether that state of affairs continued when the situation

escalated and the defendant reached for the officer’s firearm. Overview of the Facts [ 5 ] At the time of trial, Ms. Barrow was fifty-nine years old. She suffers from schizophrenia. A few months prior to the incident, she was evicted from her home and, at the time of the incident was relying on the shelter system. [ 6 ] Some time prior to the incident, it appears that Ms. Barrow was placed under a “service restriction” at the shelter where the incident took place. However, early in the morning of the day of the incident, she managed to slip into the residence to have breakfast.

She was advised by staff that she was not welcome there. Ms. Barrow stayed anyway. [ 7 ] A staff member at the shelter testified that prior to the arrival of the police Ms. Barrow was being abusive to staff members and other clients. She had a fork in her hand and she was waving it around. She appeared to be irate. As a result, the police were called to remove Ms. Barrow from the premises. [ 8 ] Police Constable Davydova responded to the call.

She was alone and dressed in full uniform, which included a sidearm. [ 9 ] When officer Davydova arrived on scene, she was pointed in the defendant’s direction and sat down beside the defendant to speak to her. Ms. Barrow was eating breakfast. The officer engaged in a conversation with the defendant and tried to persuade her to leave. Ms. Barrow refused and remained focused on finishing her breakfast. No voices were raised and Ms.

Barrow was not causing a disturbance at that time. [ 10 ] After a few minutes, no doubt frustrated by the defendant’s non-compliance, Officer Davydova pulled the defendant’s tray away from her toward the officer. The officer then physically lifted the defendant off her chair to a standing position. The defendant resisted the officer and initially just grabbed at the food on the tray. The situation escalated however, when the defendant grabbed at the officer’s gun. The two struggled briefly and the defendant was eventually arrested. Ms.

Barrow was charged with attempting to disarm a police officer and assault while resisting arrest. [ 11 ] The un-contradicted evidence is that Officer Davydova did not advise the defendant that she was under arrest or the reasons for the arrest when she took physical control over Ms. Barrow at the table. In fact officer Davydova’s evidence was that she was not, placing Ms. Barrow under arrest under the Trespass to Property Act when she lifted her off the chair.

Yet, in cross-examination when she was asked to justify using force against the defendant, she cited both the Trespass to Property Act as well as the Police Services Act . Analysis [ 12 ] It is well established that the concept of "lawful execution of duty" goes beyond the simple issue of whether the officers were on duty to consider if the officers were acting lawfully. The words “lawful execution of duty” therefore require something more than simply being on duty. See: R. v. Houle 1985 ABCA 275 ; R. v. Dedman (S.C.C.); R. v. Forsyth, [1982] B.C.J. No. 469 (B.C.Co.Ct.) and R. v Brooks [1990] B.C.J.

No. 1101 (B.C.Co.Ct.) . [ 13 ] In R. v. Dedman , LeDain, J. noted that in their official capacity peace officers “only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties.” A peace officers’ statutory duties can be found in

section 42 of the Police Services Act , R.S.O. 1990, c. P. 15, as amended: Duties of Police Officer 42.

(1) The duties of a police officer include, (

a) preserving the peace; (

b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention; (

c) assisting victims of crime; (

d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (

e) laying charges and participating in prosecutions; (

f) executing warrants that are to be executed by police officers and performing related duties; (

g) performing the lawful duties that the chief of police assigns; (

h) in the case of a municipal police force and in the case of an agreement under

section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws; (

i) completing the prescribed training. Power to act throughout Ontario

(2) A police officer has authority to act as such throughout Ontario.

Powers and duties of common law constable

(3) A police officer has the powers and duties ascribed to a constable at common law. [14] The jurisprudence is clear that where a peace officer undertakes an unlawful arrest the officer is not then acting in theexecution of duty: Regina v. Delong; (1989), (ON CA), 47 C.C.C. (3d) 402 (Ont. C.A.) at 411 per GriffithsJ.A.; Regina v. Allen (1971), (ON CA), 4 C.C.C. (2d) 194 (Ont. C.A.) at 196 per Arnup J.A.; Regina v. Quinlan, Ont.C.A., Dec. 18, 1978 at 2 per Dubin J.A. (as he then was); Regina v. Middleton et al., (ON CA), [1969] 4 C.C.C. 197(Ont. C.A.) at 198 per McGillivray J.A.; Regina v.

Hurlen (1959), (ON CA), 123 C.C.C. 54 (Ont. C.A.) at 57-60 per Porter C.J.O.; Regina v. Stevens(1976), (NS CA), 33 C.C.C. (2d) 429 (N.S.C.A.) at 434-5 per MacDonaldJ.A. As such, no conviction for assault or assault resisting arrest can result where the defendant resists. [15] The same result obtains if a citizen is unlawfully detained. In Ludlow and Others v. Burgess [1971], Crim. L.R. theEnglish Divisional Court held of an officer’s action in detaining someone for inquiries that: the detention of a man against his will without arresting him was an unlawful and serious interference with a citizen’s liberty.

Since itwas an unlawful act it was not

an act done in the execution of the constable’s duty. A similar conclusion was reached in Kenlin and Another v. Gardiner and Another, [1966] 3 All E.R. 931. Was the Officer in the Lawful Execution of Her Duty? [16] Officer Davydova was dispatched to attend at the shelter to remove an unwelcome intruder. When the officer arrived onscene, she was pointed in Ms. Barrow’s direction. The officer’s presence at the shelter was with the staff’s knowledge and implicitconsent.

I find that the officer was not herself a trespasser in the situation. [17] Many of the staff members were present and observed from a safe distance as Officer Davydova interacted with thedefendant. Ms. Barrow was not causing a disturbance or behaving in an assaultive manner when the officer arrived. She was focused oneating her breakfast. Ms. Barrow herself acknowledged in her testimony that she knew she was not welcome at the shelter. [18] Officer Davydova testified that in lifting Ms. Barrow off her seat she did not intend to arrest the defendant.

Yet in cross-examination she testified that her authority for using force against Ms. Barrow was under the Trespass to Property Act. It was also clearon her evidence that she never advised Ms. Barrow that she could or would be arrested under the Trespass to Property Act if she did notcomply with the officer’s request that she leave. [19] A crown witness, Jimmy Kaloudis, who is a support services worker, testified that he did not hear the officer announceMs Barrow’s arrest or give reasons for an arrest. [20] I find that in the circumstances the officer had reasonable and probable grounds to arrest Ms.

Barrow for trespassing. Herdecision not to exercise her arrest powers may have been well-intentioned, but certain consequences flowed from that decision. Absent animpending arrest the officer had no lawful authority to apply force, however minimal, to the defendant. In doing so she interfered withMs. Barrow’s liberty. [21] Officer Davydova was entitled to take control of the defendant only once she placed her under arrest. She then had a legalobligation to advise Ms. Barrow of the reasons for the arrest. Since the officer was not in the course of arresting the defendant when shetook control of Ms.

Barrow, I find that in the circumstances that it was she who assaulted Ms. Barrow by removing her off her seat. Assuch, she was not acting in the lawful execution of her duties at that point in time. To What Extent Can a Citizen Resist an Unlawful Arrest? [22] The question that then arose in the factual context before the court is how far a citizen can go in resisting an unlawfularrest. [23] On the submissions of the amicus, Mr. Murphy, none of Ms. Barrow’s actions in resisting the officer could attract anypenal consequences since the officer was no longer in the lawful execution of duty.

In particular, the submission of the amicus is thatwhile the officer was entitled to thwart Ms. Barrow’s attempt to reach of the officer’s firearm, Ms. Barrow should be found guilty ofattempting to disarm the officer since the officer was not in the lawful execution of her duty. For the reasons that follow, I reject thatsubmission. [24] The defendant testified in her own defence. I reject her evidence that she reached for the officer’s gun because she wasfearful of being shot. I find on the evidence that there was nothing in the officer’s words or conduct that could reasonably give rise to orfound such a fear.

The officer’s weapon remained in the holster as the officer tried to gain control over the defendant. There was nomention of the possible use of the gun or any gesture by the officer in her brief interaction with the officer at the shelter that couldreasonably have caused the defendant to fear being shot by the officer. [25] I find that when the officer attended at the shelter she had both a statutory duty under the Trespass to Property Act as wellas under the Police Services Act to lawfully remove the defendant from the premises.

She also had a concurrent common law duty toensure that the staff and other shelter residents were free from nuisance or disturbance and safe from possible aggression, grievous bodilyharm or death.

[ 26 ] While the defendant was entitled to resist an unlawful arrest, that did not grant her complete immunity from any and all of her actions following the unlawful and failed attempt by the officer to take physical control over her. I find that the defendant was entitled to use as much force as was reasonably necessary in the circumstances to resist the officer in order to preserve her constitutional right not to be subjected to an unlawful detention. [ 27 ] On this point Justice Rosenberg’s conclusion in R. v. Plummer (2006) 2145 C.C.C. (3d) 84 (O.C.

A) is apposite. That case involved an arrest under the Highway Traffic Act which the court found was unlawful. Writing for the majority, Justice Rosenberg concluded that: [i]n attempting to arrest the appellant without legal authority, the officer unlawfully assaulted him. The appellant was therefore not guilty of the included offence of assault. Section 34(1) of the Criminal Code gave him the right to resist the unlawful assault by the officer provided the force necessary was not intended to cause death or grievous bodily harm and no more than necessary to defend himself.

There was no suggestion that the force used by the appellant in resisting arrest was capable of depriving him of the defence in s. 34(1) . A similar analysis applies to the other charge of assault with intent to resist arrest. (emphasis added) [ 28 ] I find that in the absence of any immediate and reasonable credible threat to her life, when Ms. Barrow reached for the officer’s firearm, she crossed the line and was no longer acting in self-defence under s. 34(1) of the Criminal Code .

When her actions put the lives and safety of everyone in the immediate vicinity in jeopardy, including her own as well as the officer’s, there was a material change in circumstances. The officer had a legal duty to take appropriate action.

At that point in time the officer was then acting in the lawful execution of her duty to preserve the peace and prevent crime. [ 29 ] Once a police officer’s conduct results in a situation where he or she is no longer deemed to be in the lawful execution of his or her duty, it cannot be that the suspension or negation of “lawful execution of duty” is absolute, immutable, or indefinite in regard to his or her dealings with a defendant. To hold otherwise could lead to absurd results possibly endangering the public safety. [ 30 ] Hill, J in R. v. Pinto [2003] O.J.

No. 5172 (S.C.J.) considered the issue and his conclusions support, in my view, a temporal or situational limit to the negation or suspension of lawful execution of duty. He states at para. 66 : The scuffle alleged to include assaultive conduct occurred during what was described as a protective search – a search which involved a detained citizen who should not have been asked to surrender identification documentation and who should not, in the first place, have been subjected to a protective search in the absence of any lawful investigative detention.

In the circumstances, the unconstitutional conduct negates lawful execution of duty at the time of the alleged assault and accordingly the prosecution fails in its discharge of proof of an element of the s.270 (1)(

a) offence. (emphasis added) [ 31 ] Therefore, while the state or status of operating within the lawful execution of an officer’s duty may be suspended or negated in certain circumstances, I find that it may also be regained or re-instated as circumstances change. [ 32 ] In the circumstances of this case, the officer ceased to be in the execution of her duty when she unlawfully grabbed the defendant to lift her up without effecting an arrest. I find that the officer’s “suspension” of lawful authority or status was not suspended indefinitely vis à vis the officer’s broader or other duties.

The suspension or loss of authority was specific to the specific duty being executed at that specific point in time, namely investigating a potential trespass situation. [ 33 ] The officer’s common law and statutory duty to ensure that the lives and safety of other members of the community, namely the shelter staff and residents, was not endangered continued and survived any “suspension” relating to her specific dealings with the defendant. [ 34 ] I find that the defendant used excessive force and took unreasonable and dangerous measures in resisting the officer’s assault on her.

From the moment she formed the intention to reach for the officer’s weapon and acted upon it, the officer was under a legal obligation to respond to preserve the peace and prevent a potentially lethal offence. Any suspension of the officer’s execution of lawful authority was in effect “lifted”. In the circumstances, I therefore find that the defendant’s conduct having endangered not only the officer’s safety, but that of the residents and staff at the shelter, went well beyond an assault simpliciter on the officer.

I am satisfied beyond a reasonable doubt that the offence of attempt to disarm a police officer is made out. [ 35 ] With respect to the charge of assault resisting arrest, I found the defendant not guilty on the basis that she was entitled to resist an unlawful arrest. In this regard, I, regrettably, focused too narrowly on the defendant’s resistance prior to reaching for the firearm. A closer and more considered review of the evidence in fact supports a finding of guilt based on Ms. Barrow’s conduct following what I found to be her lawful arrest on the charge of attempting to disarm a police officer.

In addition to forcefully resisting the officer at the shelter Ms. Barrow continued to resist arrest while in the scout car. She also spat on officer Davydova at the station. In the circumstances, a finding of guilt on that count should have been the proper result. Released: May 3rd, 2011 Signed: ______________________________ Justice F. Bhabha [1] [1] Miss Barrow chose to represent herself at trial. The court however was assisted by Christopher Murphy who was appointed as

amicus curiae . Initially, Ms. Barrow chose not to testify. Part way through the trial she changed her mind and the case was reopened to permit her to testify.