2011 MBPC 33, 2011 MBPC 33

2011MBPC33 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) S. Silver, for the Crown ) - and - ) ) BRIANNE ANDERSON ) J. Neufeld, for the Accused ) ) Judgment delivered: ) June 2, 2011 L. MARTIN, P.J. [ 1 ] Brianne Anderson stands charged with two counts of assault police officer contrary to section 270(1) (

a) of the Criminal Code . It is alleged that on January 13, 2010 Ms Anderson ( Anderson ), kicked two police officers after being arrested for causing a disturbance and being detained under The Intoxicated Persons and Detention Act ( IPDA ). [ 2 ] As Crown counsel concedes that the arrest under section 270(1) (

a) and the detention under IPDA were unlawful, and that the force used by Anderson in kicking the officers was not excessive under

section 34 of the Criminal Code , the only issue before this Court is whether either police officer was otherwise in the ‘execution of his duty’ so as to constitute the charge of assault police officer. The Evidence [ 3 ] At 11:42 p.m. on January 12, 2010 Constables Ewatski and Murray were called to the scene of a robbery on Sinclair Street in Winnipeg, Manitoba . Constables MacLean and Lazurus, who were called for back-up arrived on the scene at 12:02 a.m. [ 4 ] In the course of the robbery investigation, Ewatski and Murray attended to a side-by-side house in an attempt to locate the perpetrator.

The homeowner allowed them entry and they searched the home. The perpetrator was not found. However, Ewatski did note several of the occupants of the home to be intoxicated. Anderson, an 18 year old woman, was one of those occupants. [ 5 ] Ewastski testified that he first came upon Anderson in an upstairs bedroom. She was on the telephone. He found her visibly intoxicated but otherwise unremarkable.

He asked her if she had seen the perpetrator of the robbery and she replied no. [ 6 ] After searching the remainder of the house and on the point of leaving, Anderson came down the stairs and began to scream at Ewatski, yelling profanities and telling him to get out of the house. She also began kicking at some chairs and make-shift furniture. [ 7 ] Ewatski told Anderson to calm down, failing which he would arrest her for cause disturbance and take her to the ‘drunk tank’. The homeowner then said ‘get these drunk chicks out of here.

I don’t need this.’Ewatski assumed that the homeowner was referring to Anderson and the robbery victim located outside. [ 8 ] At 12:02 a.m. Ewatski placed Anderson under arrest for “cause disturbance and IPDA”. There is no evidence before this Court that Anderson was provided any of her Charter rights or police caution. Further, though Ewatski arrested Anderson , it does not appear as though she was ever formally charged. [ 9 ] Ewatski escorted Anderson out of the house. She was resistant and did not want to leave.

She was eventually handed over to MacLean and Lazurus, who had just arrived on scene. [ 10 ] Anderson continued to be resistant and combative and lashed out on several occasions, narrowly missing police officers. She was taken to 75 Martha Street , colloquially referred to by the police officers as the ‘drunk tank’. She was ultimately placed in a cell due to her lack of cooperation in being searched. While in the cell, she was handcuffed and placed face down on a mat while police officers removed the handcuffs and attempted to leave the cell.

It was at this point in time that Anderson kicked Ewatski, then MacLean in the knees. The kick was described by both officers as light. [ 11 ] When questioned about the reason for detaining and arresting Anderson , Ewastski testified that he felt the charges of cause disturbance and IPDA were justified by the disturbance she would be causing to the homeowners in the adjacent side-by-side and the danger she could pose to both herself and others. MacLean added that he felt she would not be able to take care of herself and that given that it was January he felt she could not be left outside.

They both testified that Anderson was from Gillam, Manitoba but neither knew how they obtained this information and there is no evidence that anyone made any inquiries of Anderson as to whether there was somewhere else within the City of Winnipeg that she could stay. Position of the Parties [ 12 ] Crown counsel says that even though the officers had no basis under IPDA or

section 174 of the Criminal Code to detain or

arrest Anderson, there were other offences that Anderson could have been charged with and as a result, the officers were within theexecution of their duties. [13] Defence counsel disagrees. She says that given that the arrest and detention were not lawful, Anderson had the right to resistarrest with reasonable force. The Law [14] Section 270(1)(

a) of the Criminal Code provides that: Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer… [15] Case law indicates that an officer may be in the execution of his duties when he is acting pursuant to statute or the commonlaw. At common law, a peace officer’s duties comprise preservation of the peace, prevention of crime, and protection of life and liberty.These common law duties are incorporated in the City of Winnipeg Charter.[1] [16] When the issue before the Court is whether a peace officer was in the execution of his or her duties and there is an apparentunlawful interference with a person’s liberty or property, the Court must ask:

i) whether the officer’s conduct falls within the general scope of any duty imposed by statute or recognized at common law; and if yes, ii) whether the officer’s conduct, albeit within the general scope of such a duty, involves an unjustifiable use of powers associated withthe duty. [See R. v. Waterfield, [1963] 3 All E.R. 659 (Eng. C.A.); R. v. Stenning, (S.C.C.); Dedman v. The Queen, (S.C.C.); and R. v.

Godoy, (SCC), [1999] 1 S.C.R. 311 (S.C.C.)] [17] For a police power to be justifiable in a given context, “the interference with liberty must be necessary for the carrying out ofthe particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of thepublic purpose served by the interference. [R. v. Sanderson, 2003 CarswellOnt 1496 (Ont.

C.A.) para. 31, in reference to Dedman.] [18] The justifiability of an officer’s conduct depends on several factors, including but not limited to the duty being performed, theextent to which some interference with individual liberty is necessary to perform that duty, the importance of the performance of thatduty to the public good, the liberty interfered with, and the nature and extent of the interference. [Sanderson, para. 32, in reference to R.v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.)] [19] Where an accused’s arrest is unlawful, the peace officer is not engaged in the execution of his or her duty, and consequently,the accused is not guilty of an assault on a peace officer. [See: R. v. Stevens, 1976 CarswellNS 158 (N.S.S.C: App.

Div.)] Analysis [20] The determination of whether the officers were in the execution of their duties when they took Anderson into custody hingeson the facts. [21] In this case, Anderson’s interaction with the police was peripheral to the investigation of the robbery for which Ewatski wasdispatched; Anderson would not have come into contact with the police had they not entered the home and there is no evidence that shehindered the robbery investigation in any way. [22] There is also no evidence that Anderson was unruly or acting in a manner that caused the homeowner to want Anderson toleave before Ewatski’s arrival.

Ewatski’s own evidence is that he initially found Anderson alone in a bedroom on the phone. Her conductwas not noteworthy and there is no indication that at that point in time Ewatski had any concern for her well-being or that of the otheroccupants of the home. [23] The behaviour which caused Ewatski to threaten Anderson with arrest is behaviour that was directed at Ewatski and moreparticularly her wish that he leave the premises. [24] Though Ewatski testified that Anderson kicked some chairs and make-shift furniture, there is no evidence of any propertydamage or any danger to any of the other occupants.

Further, although the homeowner told Ewatski she did not need any trouble and toget the ‘drunk chicks’ out, this was said after Ewatski threatened arrest. There is therefore no evidence of a need to perserve the peaceother than to make Anderson stop her belligerent comments to Ewatski. [25] In the circumstances not only were there no grounds for arresting Anderson for cause disturbance or detaining her under IPDAgiven that she was not in a public place, I find there were no grounds under the common law or the City of Winnipeg Charter for anydetention.

If however I am wrong, I find that the detention of Anderson was unjustifiable in the circumstances. [26] Given the foregoing, this Court finds Anderson not guilty of the offence of assault peace officer.

L. Martin, P.J. [1] Section 166(4) provides that all peace officers must “ perform all duties assigned to the officer in relation to the preservation of peace, the prevention of crime and offences against laws in force in Manitoba , and the apprehension of criminals and offenders and others who may lawfully be taken into custody”.