R. v. McLaren, 2013 MBPC 13

CITATION: R. v. McLaren , 2013 MBPC 13 Date: 20130312 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Boiteau-Marr, ) for the Crown ) and ) ) ) Darlene McLaren ) J. Rogala, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) March 12, 2013 ) Wiebe P.J. Introduction [ 1 ] On December 3, 2011 at approximately 10:45 p.m., the police were called to a domestic dispute on Sutton Avenue in the City of Winnipeg. A neighbour alleged a male had assaulted a female in a parking lot.

When the police arrived they determined both the female and male involved in the dispute had entered a suite in the complex (“the Suite”). The police, with Manitoba Housing Security, attended at the Suite and knocked several times at the door. They identified themselves as Winnipeg Police Officers. Having received no answer after several attempts, they broke down the door and entered the Suite. There they found Robert Chartrand (“Chartrand”) and ordered him to the ground. Chartrand resisted and police had to physically take him to the ground to handcuff and arrest him.

In the Suite with Chartrand were his girlfriend Elizabeth Hi-Eagle (“Hi-Eagle”) and Hi-Eagle’s mother - the accused Darlene McLaren (“McLaren”). McLaren lived with Chartrand, Hi-Eagle and their children. [ 2 ] McLaren is charged with assaulting a police officer pursuant to s. 270(1) (

a) of the Criminal Code . It is alleged that during the takedown of Chartrand she assaulted one of the police officers. [ 3 ] At the trial on February 14, 2013, the Crown called three witnesses and the Defence called two, including McLaren. [ 4 ] McLaren disputes she assaulted the police officer. In the alternative, she argues if she did commit assault it was in protection of Chartrand and, in any event, she argues the assault was so minor and trifling that the defence of de minimus should apply.

As there are issues of credibility as well as discrepancies in the witnesses’ testimony on certain points, the Court will summarize the evidence of all witnesses before making any findings of fact and applying the law to those facts. The Evidence Constable Ross MacKinnon (“MacKinnon”) [ 5 ] MacKinnon testified that on the evening of December 3, 2011, he was on duty as a uniformed patrol officer. He and his partner

Constable Yanz (“Yanz”) received a call of a domestic disturbance at the Suite on Sutton Avenue. The report indicated the assault had taken place in the parking lot and, further, the male suspect had entered the above Suite. MacKinnon, upon making inquiries about the potential suspect, was informed one of the residents at the above address was Chartrand. Chartrand was known to police to have been violent, dangerous, armed and assaultive in the past.

In addition, it was reported there had been prior domestic calls at the address. [ 6 ] MacKinnon and Yanz attended at the residence; both in uniform and driving a marked police car. They knocked on the door of the Suite and identified themselves as Winnipeg Police. MacKinnon testified they knocked several times and identified themselves as police officers repeatedly over a period of some minutes. There was no response.

MacKinnon testified there was “an ominous quiet” in the Suite. [ 7 ] Having received no response from the residents in the Suite, given Chartrand’s reputation for violence and being concerned for the safety of the residents, particularly the female inside, MacKinnon consulted with Acting Sergeant Masse (“Masse”) and a decision was made to force open the door. A battering ram was used to break down the front door and Masse and MacKinnon entered into what was the living room of the Suite.

Janz had gone around to the back door to prevent anyone from leaving the home. [ 8 ] MacKinnon testified that upon entering the home, he saw Chartrand standing in the kitchen entrance which was at the end and on the left side of the small living room. Masse ordered Chartrand to put up his hands and get to the ground. Chartrand refused, shouting at the police officers that they needed a warrant. MacKinnon testified that Chartrand moved his hand to the waist of his sweatpants and MacKinnon thought this was potentially to reach a weapon. At this point MacKinnon and Masse pulled out their guns.

Chartrand was again ordered to put up his hands and get to the ground. At this point Chartrand ducked out of view into the kitchen. This was a concern to MacKinnon as the kitchen holds the opportunity to retrieve a weapon. Chartrand stepped back into view and was again ordered to the ground and again Chartrand refused, all the while swearing at the police officers and keeping his hand at his waistline. MacKinnon and Masse approached Chartrand, put away their sidearms and each officer grabbed Chartrand by an arm. Chartrand attempted to pull away.

The officers attempted to take him to the ground and Chartrand continued to resist and attempted to pull away. He was ordered to put his hands behind his back and refused and he attempted to stand up. At this point Masse delivered three knee strikes and MacKinnon gave him three closed fist punches to the right side of his torso. By this time Janz had joined the officers in the house. Janz took control of Chartrand’s right side while MacKinnon took control of his legs. The police officers continually told Chartrand to stop resisting and to place his arms behind his back.

He continued to resist and tried to get up on his knees. MacKinnon delivered three more knee strikes and was able to pin Chartrand’s legs to the ground. Chartrand continued to resist and he was advised he would be tasered if he did not produce his hands. Eventually the officers were able to place the handcuffs on him. [ 9 ] MacKinnon testified that when Chartrand was cuffed the accused McLaren became involved. [ 10 ] MacKinnon testified that while he and Masse were trying to get Chartrand in control, after he was cuffed, he felt himself being hit in the head with “something”.

This caused him to look over and he saw McLaren drop down on top of Masse. He indicated McLaren had her full body weight on Masse and it looked like she had Masse in a bear hug. He saw Masse stand up and deal with McLaren. MacKinnon was not injured and the assault charge does not result from MacKinnon being hit with “something”. [ 11 ] MacKinnon noted McLaren was definitely intoxicated; she was unsteady on her feet, he could smell alcohol, she had red glassy eyes and he could tell by the way she was talking.

MacKinnon said Masse took control of McLaren and he and Janz continued to focus on Chartrand. [ 12 ] On cross-examination MacKinnon acknowledged this was a tense situation. He agreed the situation added to his level of cautiousness but it did not affect his expectation of what could happen in this type of situation. He acknowledged the accused was screaming during the time Chartrand was being taken down. He conceded his police report indicated McLaren was “grappling” with Masse as opposed to the interaction being characterized as a “bear hug”.

He agreed McLaren did not hit him intentionally and he agreed he did not see the entire incident as his attention was divided 60% on Chartrand and 40% on the rest of the room. [ 13 ] When tested on his specific recollection of the events of the evening and the fact that he relied extensively on his police notes, MacKinnon indicated he did recall the events and he does recall the grappling.

Acting Sergeant Masse [ 14 ] Masse testified that he had no notes of the incident and in preparation of his testimony he reviewed the police report and the Use of Force report. [ 15 ] Masse was dispatched to the incident with the information that the officers on scene could not get a response from the Suite where a domestic assault was occurring. Manitoba Housing security was on scene with the police. When he arrived he was told the man of interest was Chartrand; he had gang ties and weapons offences. Chartrand was known to Masse as Masse was with the Gang Unit at a prior time. The gang was known for violence.

When Masse arrived, MacKinnon and Janz had information there had been previous domestic calls at the residence. The officers had safety concerns as they did not know if the female was safe. The knocking continued while Masse was there. Opportunity for the occupants to open the door was given. With no response, Masse made the decision and announced to the occupants that the door would be forced open. [ 16 ] Upon entry Masse said Chartrand was standing in the entry of the kitchen. Masse testified the Suite was not well-lit.

He saw Chartrand with one hand behind the kitchen wall and the other on his waistband as though he had or was supporting a weapon. Masse challenged Chartrand at gunpoint to show him his hands and get down on the floor. Chartrand would not cooperate. Masse asked him to cooperate a number of times and Chartrand would not comply. The atmosphere was very tense and Chartrand was getting increasingly belligerent. Chartrand eventually took a step forward so Masse could see his one hand, the one that had been behind the kitchen wall.

Chartrand still had his other hand at his waistband. [ 17 ] Masse indicated he stepped towards Chartrand to take him down. Chartrand continued to resist and Masse gave him three knee strikes to get him to the ground. Chartrand would still not release his hands and continued resisting. Masse testified Hi-Eagle was on the stairs to his right and there was another female in the room behind him and to his right. Hi-Eagle told Chartrand to cooperate on several

occasions. At this point Masse felt someone approaching him on his gun side, his right side. The person was trying to pull him off Chartrand. In court Masse identified this person to be McLaren. He noted she had something black, cell phone size, in her hands. At this point he testified that he felt he was being attacked. Janz then pulled out his taser and held it against Chartrand’s leg and told him to stop resisting or he would be tasered. Chartrand stopped resisting and Masse turned to the person trying to pull him off.

He testified she was trying to pull him off by grabbing his right shoulder and at the same time she was sticking a black object between him and Chartrand. His concern at this point was someone else was bringing a taser-like weapon to the “party”. He turned to address his attacker McLaren and as he was doing so Hi-Eagle was screaming at him that McLaren was trying to take a picture. Masse testified this was a very tense atmosphere and said McLaren jumped into the foray with aggression. [ 18 ] Masse immediately told McLaren she was under arrest. McLaren said to him she was only trying to take a picture.

In his opinion McLaren was intoxicated. Masse told McLaren she was under arrest; he ordered her to the couch and contacted another police unit to deal with McLaren. Masse testified he felt McLaren was very disrespectful throughout the incident. His opinion was she acted as an attacker during a volatile incident and escalated the situation further.

His concern was for the safety of the officers and the people in the house. [ 19 ] On cross-examination Masse acknowledged MacKinnon applied three closed fist punches to the right torso of Chartrand during the initial takedown and again later, when Chartrand was struggling, likely three more; that Chartrand did not ultimately have a weapon on him; and that Hi-Eagle was yelling at Chartrand during the takedown. [ 20 ] In addition he acknowledged McLaren did not jump on his back, but she pulled on his back while holding a black object in her hands.

Masse testified he did not hear McLaren saying anything to him, but in the circumstances there was a great deal of yelling from police as well as Hi-Eagle. He acknowledged McLaren could have said something to him. He held firm in his evidence that McLaren used enough force to try to pull him off Chartrand. He indicated he is 280 pounds and so it was not a “glancing touch”. Constable Janz [ 21 ] Janz testified he was MacKinnon’s partner on the night of this incident. They were dispatched to a domestic call where a female was said to have been assaulted, five minutes earlier, outside a residence.

The male had left the area of the assault and the female had returned to the Suite. Both the male and female were said to be intoxicated. The report later said the man had returned and had also entered the Suite. Upon arrival Manitoba Housing Security was on site and the police tried to gain access to the Suite. They tried several times and there was no response. They identified themselves as Winnipeg Police Officers several times.

The decision was ultimately taken to force entry and Janz went to the rear of the Suite at that time to ensure no one exited from the rear. [ 22 ] Janz indicated he eventually left the rear of the Suite and went inside as he had heard yelling. He described the Suite as being well-lit. In the suite Janz indentified McLaren, Hi-Eagle and Chartrand as being present. At that time he was not sure who else may have been in the Suite. He did note Hi-Eagle was on the steps in front of Chartrand and McLaren was to his right. When he entered he saw the other officers struggling with Chartrand. Janz rushed to assist.

Chartrand continued to resist, the officers got him to the ground, he “turtled” and all three struggled to get his arms out from under him. It was a high intensity situation and all three officers were trying to get Chartrand’s hands to place in cuffs. The officers could not get his arms out from under him and so Janz pulled out his taser and threatened to use it if Chartrand did not cooperate. [ 23 ] During the struggle Janz saw McLaren come over to Masse from the corner of his eye. She “lunged” onto Masse’s back and onto his shoulders.

Janz said McLaren did take hold of Masse and her actions forced Masse to disengage from Chartrand. In his opinion she was trying to disengage Masse from the struggle. In his opinion McLaren’s actions could have been detrimental in the circumstances. Janz testified that Chartrand was intoxicated, displaying all the classic signs of intoxication. Janz’s opinion was this was a tense situation as they did not know if Chartrand was armed and he was known to be violent. He also added that he had safety concerns. [ 24 ] Janz was challenged in cross-examination as to his recollection of events.

It was suggested to him Chartrand was already on the ground when he entered the Suite; Janz disagreed and said Chartrand was not prone. Janz agreed McLaren may have been yelling prior to her engaging Masse but he did not know that for sure. He indicated there was a lot of yelling going on at that time. He acknowledged he did not see exactly where McLaren grabbed Masse but believed it was his upper body. It was also suggested Janz did not remember parts of the incident as he was relying on the police reports to assist him.

Janz indicated the incident did stick out in his mind as it was not a usual incident. [ 25 ] All three officers were asked to describe Chartrand’s build. All indicated he was approximately 160 pounds. On re-examination, all three officers also testified that Chartrand’s size had no bearing on their assessment of his potential strength or potential as a threat. From their experience a small man can be very strong and powerful. [ 26 ] In addition all three officers testified they were in full uniform, had arrived in marked police cars and were acting in their capacity as police officers.

None of the officers suffered any injuries as a result of this incident. Darlene McLaren [ 27 ] McLaren is a hotel housekeeper and call centre customer service representative. She testified she was at home at the Suite with her daughter Hi-Eagle, Chartrand and their children. On the evening in question McLaren testified she was having a few drinks with Chartrand and over four hours she consumed three beers. She indicated she was not intoxicated. [ 28 ] She testified Hi-Eagle and Chartrand got into an argument. She could not remember why.

They moved from the kitchen to the living room and then outside and continued their argument. She took a look out the window to the parking lot and saw they were arguing by the car. That is as far as Ms McLaren’s observation went of what occurred outside went. They came back into the Suite and matters had calmed down. They all agreed they would go to bed. This was around 9:30 p.m. McLaren then said she heard the Winnipeg Police announce themselves and knock on the door. She testified she heard them once. McLaren said she did not respond to the police at the door and neither did Hi-Eagle or Chartrand.

[ 29 ] The next thing McLaren knew was the police were breaking down the door and they rushed in. She testified she was scared and frightened and did not expect them to be there. She said she saw no reason for them to be there and she did not know why they were there. McLaren testified she felt their presence in the Suite was unlawful. They called “Robert Chartrand” and announced they were Winnipeg Police. They continued calling Chartrand’s name and told him to get down. [ 30 ] McLaren testified at this point she was in the kitchen; Chartrand and Hi-Eagle were in-between the kitchen and living room.

She heard the police rush in and saw them grab Chartrand and put him on the floor. There were three or four officers. They grabbed Chartrand by the arms and pushed him onto the floor. They had their knees on his back, one was punching him in the side, and one of them was punching him in the head and “totally beating him up”. She testified she was frightened for Chartrand; she was scared. She felt for Chartrand’s life and she felt danger. [ 31 ] McLaren testified felt there was too much force being applied to Chartrand as he is a smaller man.

She tried to get the officers’ attention and told them to stop hitting them. There was no response. She then took her cell phone to take pictures. She said at this time Hi-Eagle was trying to get Chartrand to calm down. McLaren said while she was taking pictures, the police were ignoring her. She then said she tapped Officer Masse on the back. She said she did not use any force, she did not pull him or push him aggressively hard - she was just trying to get his attention so they would stop beating up on Chartrand. If she had known she would be arrested she would not have touched him.

Masse reacted by turning around and grabbing her phone and told her she would be charged with assault. Masse grabbed her arm, handcuffed her and had another police officer take her out to a police car. Her evidence is she was surprised at the arrest. [ 32 ] On cross-examination, McLaren stated her memory of the event is quite clear; she acknowledged she did not count how many drinks she had that day but she stated she did not overdo it because she had to work the next day; she was firm she only had three to four beers. She described Chartrand as an honest hard-working man who looked after his family.

She acknowledged Chartrand and Hi-Eagle argued from time to time and she was unsure if police had attended for domestic reasons prior to this night; she was not concerned for her daughter’s safety on the night in question. She did not open the door to police because it was up to Chartrand and Hi-Eagle to do so. She would not agree police were there to check on the well-being of Hi-Eagle – she was not sure why they were there. When asked if police generally look after the safety of the public she said “Yes and No”, but later said yes they do.

When pressed on how much she remembered of the evening she said her recollection was clear, but when pressed on the nature of the argument between Chartrand and Hi-Eagle she said she could not recall the details of the argument; she then reconsidered this answer and indicated she did know what the argument was about - it was about Chartrand leaving and Hi-Eagle not wanting him to leave. She also acknowledged she did know why police were there and she did have some concerns for her daughter.

She also acknowledged she was angry at the way police were treating Chartrand. [ 33 ] With respect to police taking Chartrand to the ground, she acknowledged it was necessary to ensure the safety of the people in the house; it was a high intensity situation and Chartrand was not complying with the police. McLaren maintained police were using excessive force - approximately four to five punches to each of the head, side and legs of Chartrand. [ 34 ] During her own arrest McLaren acknowledged she was verbally abusive but other than that she maintained she was cooperative.

Elizabeth Hi-Eagle [ 35 ] Hi-Eagle was at the Suite the evening in question with Chartrand and McLaren. They were drinking; Hi-Eagle was not. Hi-Eagle and Chartrand got into an argument over family issues – initially she said she could not recall the specifics of the argument. Chartrand was trying to leave and went outside. Hi-Eagle went out after him and they resolved the argument. They went back to the kitchen with McLaren. The time was around 10:30 p.m. The police knocked and announced themselves at the door. Hi-Eagle could not say how many times they knocked.

Hi-Eagle did not open the door because she felt they did not need to be there. She testified the police broke down the door and entered with their guns drawn. They started calling Chartrand’s name, took him to the ground and began punching him and beating him up. The police were telling Chartrand to be quiet. Hi-Eagle said she asked the police to stop beating up Chartrand. She was afraid for his life as the police were punching him in the face.

She agreed the police were justified in using some force on Chartrand as he was not cooperating, but said not as much as they had. [ 36 ] Hi-Eagle testified McLaren was asking police to stop and confirmed she was taking pictures with her cell phone camera. She said McLaren put her hand on a cop to ask him to stop – specifically she put her hand on his right shoulder. Hi-Eagle confirmed McLaren had her cell phone in her other hand while she touched Masse.

Hi-Eagle said the police officer immediately told McLaren she would be arrested. [ 37 ] On cross-examination, Hi-Eagle acknowledged her children were upstairs during the incident; and that she and Chartrand had been together for three years but she had known him since the year 2000. She said she has a good relationship with Chartrand and they do argue once in a while. She was also aware of Chartrand’s involvement with the law in the past but said he had not been in trouble since they were together.

She denied police have been involved with them as a couple or that she had seen Chartrand in trouble with the police in the three years they had been together. She testified Chartrand has never been physical with her. [ 38 ] Hi-Eagle knew police were there because of the argument. She acknowledged they chose to ignore the police knocking on the door. When the police came in, Hi-Eagle was in the kitchen. She acknowledged the police drew their guns after they were in the Suite and did not enter with guns drawn as she testified in her direct examination.

Hi-Eagle acknowledged Chartrand was not cooperating and he was asking police to show him a warrant. Hi-Eagle could not say what Chartrand’s body language was like and did not see him reach for his waistband. However she could not say he did not reach for his waistband. [ 39 ] Hi-Eagle said McLaren “probably” touched Masse’s right shoulder and it was not a push. It was “putting her hands on someone”. She did not grab Masse’s shoulder. Hi-Eagle said Masse did not react to being touched other than telling McLaren she was under arrest. Analysis

[40] While ultimately the determination to be made is whether the Crown has proven the allegations beyond a reasonable doubt, it isclear that I must also determine the credibility of the witnesses and the reliability of their testimony. Having regard to the fact thatMcLaren called evidence, I am guided by the decision of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. The applicablethree-part analysis is as follows: (

a) If I believe McLaren and her evidence raises a defence, then I must find her not guilty; (

b) Even if I do not believe all of McLaren’s evidence, but her evidence leaves me with a reasonable doubt, I must acquit her; and (

c) Based on the evidence I do accept, I must determine if the Crown has proved beyond a reasonable doubt that McLaren is guilty ofthe charge. [41] In assessing McLaren’s credibility I must consider whether her testimony seems plausible in terms of the inherent likelihoodthat events occurred as the witnesses described them. I must also assess the evidence of the witnesses in the context of the whole of theevidence adduced at trial.

Is McLaren’s evidence to be believed? [42] McLaren testified in a cautious and sometimes defensive manner at the hearing. [43] McLaren testified that she knew it was police at the door but she, along with Chartrand and Hi-Eagle, ignored it. She said shesaw no reason for them to be there. She maintained their attendance was unlawful.

On cross-examination, she did concede sheunderstood why they were there; she acknowledged it was reasonable given the argument between Chartrand and Hi-Eagle, but she wasreluctant to concede it was reasonable for the police to be concerned. [44] Notwithstanding McLaren saying she was frightened during the takedown of Chartrand, she also admitted she was angry. Shewas angry the police were there - she felt it was unlawful. She insisted she remembered the details of the evening very clearlynotwithstanding the fact she had been drinking.

She initially testified she did not remember what Chartrand and Hi-Eagle argued about,but when this inconsistency in her evidence was pointed out on cross-examination she said she did in fact remember the nature of theargument. She denied being intoxicated but admitted she does not drink often and three to four beers could impair a person’s judgment. [45] McLaren insisted she feared for Chartrand’s life. Her reaction was to yell at police for them to stop. When they did not stop herinitial reaction was to take pictures. At some point she determined she had to physically intervene.

It is not contested she touched Masse.Rather, the nature and force of the contact is contested. [46] Given the whole of McLaren’s evidence, her statement that notwithstanding the argument Chartrand and Hi-Eagle had earliershe felt police had no right to be there, her admission that she was angry, and the fact that she had been drinking when she does notnormally drink, I cannot accept her evidence regarding Constable Masse. I find she did not tap Constable Masse to get his attention so hewould stop hitting Chartrand.

Rather, I find McLaren grabbed Masse by the shoulder to disengage him from Chartrand so that the policecould not take Chartrand to the ground. Even though I do not believe all of Darlene McLaren’s evidence, does her evidence leaves me with a reasonable doubt? [47] The evidence of McLaren does not leave me with a reasonable doubt. Based on the evidence of McLaren herself, she touchedMasse. I have already rejected her evidence that the touch was a tap on the shoulder to get his attention and I have found McLarengrabbed Masse by the shoulder as Masse and the other officers were trying to take down Chartrand.

Even though I am not left in doubt by the evidence of McLaren, I must now determine, based on the evidence I do accept, if theCrown has proved beyond a reasonable doubt that Ms McLaren is guilty of the charge. [48] The evidence of Constables MacKinnon, Janz and Masse was largely consistent.

Specifically, the nature of the call, theknowledge they had of Chartrand before they arrived at the residence, the attempts to get into the residence before they broke the doordown, that they announced themselves as police, who was in the residence, where the occupants were in the residence – this was allconsistent. [49] Their description of the struggle with Chartrand was also consistent. All three testified he resisted. MacKinnon and Masse inparticular had similar descriptions of the difficulties they had getting him to the ground and under control. They admitted the strikesagainst Chartrand to subdue him.

They acknowledged they had pulled their weapons. Janz was also consistent with the other two officersin his description of Chartrand’s resistance. He, too, acknowledged he pulled out a taser and threatened Chartrand if he did not cooperate.None of the officers shied away from the fact that they had to use force to take down Chartrand. They were forthright in this regard.They all acknowledged that McLaren may have been yelling at them. None of them knew what she was saying as there was a lot ofyelling.

I accept they did not know what she was saying to them because it was an intense situation and their focus was on Chartrand. [50] There were some discrepancies in the evidence - was the living room well-lit or not? Masse thought not, while MacKinnon andJanz said yes. What was the nature of the touching of Masse by McLaren? It was described variously as a “bear hug”, a “lunge”, a“grappling” and a “pull”. All of the evidence indicates something stronger than a tap. Where there are discrepancies in thecharacterization of the type of contact, I rely in particular on the evidence of Masse.

He was the person in the best position to describe it.He indicated it was a pull with enough force to disengage him from Chartrand. All of the officers testified consistently as to what point inthe struggle McLaren intervened. [51] The officers’ evidence is supported by the testimony of Hi-Eagle. I found Hi-Eagle also to be a cautious witness. I found shewas more forthcoming in her evidence than McLaren as she was very up front about the fact that Chartrand was not cooperating. Sheacknowledged that she was pleading with him to comply with the police.

Hi-Eagle acknowledged it was necessary for the police to usesome force to subdue Chartrand, although she disagreed with the degree of force. She acknowledged McLaren touched Masse.

[52] Hi-Eagle’s description was similar to McLaren’s when it came to the nature of the touch. She described it as a tap as well.Again, I prefer the description of Masse on this point as he was in the best position to describe the contact [53] Given the above analysis of the evidence, I find that McLaren tried to pull Masse off Chartrand. Accordingly, I find beyond areasonable doubt that McLaren’s actions constitute an assault in accordance with s. 270(1) (

a) of the Criminal Code. [54] Given this finding, I now turn to determining whether McLaren is entitled to rely on s. 37 of the Criminal Code as a defence.Section 37 states: 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force thanis necessary to prevent the assault or the repetition of it.

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to thenature of the assault that the force used was intended to prevent. [55] In assessing whether this defence is available, I start by considering the question: Was there an unlawful assault on Chartrand? [56] In this analysis, I need to consider how McLaren assessed this situation and compare that assessment with what a reasonableperson in the same circumstances would have thought. (R. v. Patel, (SCC), [1994] 1 SCR 3).

I would also have toconsider if Chartrand was under McLaren’s protection and if the force used by McLaren was reasonable in the circumstances. [57] McLaren argued that the police action against Chartrand demonstrated excessive force. She argued that she feared for his life. Itis true the police used force to take down Chartrand. It is also true the police pulled their guns and then a taser and threatened to use it onChartrand if he did not cooperate. It is equally true that Chartrand would not comply with police and peacefully go to the floor. He sworeat them and demanded a warrant.

He strongly resisted the police throughout the takedown and did not comply until the use of the taserwas threatened. It is also true that this was a highly-charged atmosphere during a domestic call and McLaren knew the police hadattended because of the earlier argument between Chartrand and Hi-Eagle. Although she disputed the necessity for police to be there, sheherself had got up to look out the window and check on the couple during their argument.

This demonstrates she was concerned as well. [58] Giving McLaren as much benefit as I can, and assuming for the moment Chartrand was under her protection - which I am notdetermining - I could find some support for the proposition that subjectively from her perspective, watching a takedown such as thiscould be unnerving, even frightful. Force was used. She testified she feared for Chartrand.

So on a subjective basis, McLaren may havebelieved the police were unlawfully assaulting Chartrand. [59] However, when I compare this subjective perspective to that of a reasonable person, and when I consider all of thecircumstances, I cannot objectively find that a reasonable person would consider this to be an unlawful assault on Chartrand. The policewere there because of a domestic disturbance; there had been an argument earlier. McLaren and the other occupants would not open thedoor to the Suite.

When the police did break in, Chartrand was immediately combative, aggressive, swearing and non-cooperative.Chartrand physically resisted the police at all times. I have no doubt McLaren understood why police were there. The issue was not theactions of the police - it was the reaction of Chartrand. A reasonable person in these circumstances would have understood and acceptedthat the police had to use a degree of force to take Chartrand down in order to ensure their own safety and the safety of the people in theSuite. [60] In these circumstances, I cannot find the defence of s. 37 is available to McLaren.

Given this finding I need not considerwhether in fact Chartrand was a person under McLaren’s protection and I need not consider whether the force used by McLaren wasreasonable in the circumstances. [61] The last question for me to consider is, notwithstanding the finding that McLaren assaulted Constable Masse, was the nature ofthe assault so minor and of such a trifling nature that the defence of de minimis non curat lex applies? [62] Defence counsel put before me a number of cases which set out the fundamental principle of di minimus.

Essentially McLarenargues that the application of some force upon another does not always suggest an assault in the criminal sense. So if I find the “touch”was minor, I can find it does not reach the level of an assault.

Alternatively if the “touch” was minor, but still unjustified, or unlawful, Ican apply the principle of de minimis so as to excuse the behavior, saving the application of the criminal law for serious misconduct andprotecting the accused from the stigma of a criminal record. [63] My reading of the cases on de minimus suggests its application may be appropriate when there is incidental contact whichwould not, or should not, amount to assault. An accidental brushing up against someone with no intent, for example.

In my opinion it hasno application in this case, where the finding is that there was not an incidental touch but rather McLaren, approaching Masse on his gunside, pulled Masse off Chartrand with the intention of disengaging him from Chartrand. There was nothing trifling about the action. Assuch I dismiss the defence of de minimus. [64] For the above mentioned reasons, I find McLaren guilty of assault police officer as per s. 270 (1) (

a) of the Criminal Code. Original signed by Judge M. I. Wiebe P.J.