R v Gibbons, 2021 NUCA 17

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Gibbons, 2021 NUCA 17 Date: 20211012 Docket: 08-20-015-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Peggy Gibbons Appellant _______________________________________________________ The Honourable Justice Frederica Schutz _______________________________________________________ Reasons for Decision Appeal from the conviction of The Honourable Justice Cooper

Dated the 19th day of December, 2019 ( Docket: 18-18-185, 18-19-111) _______________________________________________________ Reasons for Decision _______________________________________________________ I. Introduction [ 1 ] The appellant, Peggy Gibbons, was involved in separate incidents with Rankin Inlet RCMP officers in September 2018 and May 2019, which resulted in charges, a joint trial and this appeal. [ 2 ] For the September incident, the appellant pled guilty to resisting arrest before trial; after trial, she was also convicted of assaulting a police officer.

For the May incident, the appellant was found not guilty of resisting arrest and two counts of assaulting a police officer, but found guilty of two offences of assault simpliciter . [ 3 ] The Crown fairly concedes the trial judge committed errors of law which render unsafe both the guilty plea to the September 2018 resisting arrest and the various convictions entered after trial.

In consequence, the guilty plea is set aside and the conviction appeal on all offences is allowed. [ 4 ] The primary issue which remains is the question of relief: should this Court direct a new trial on all charges as urged by the Crown, or enter acquittals as sought by the appellant? II. Background facts [ 5 ] Both of these incidents arose as a result of the appellant’s family phoning the RCMP to seek their assistance in having the intoxicated appellant removed from her father’s home. In both incidents, when the police arrived, the appellant was peacefully outside the residence on the front step.

Peacefully, meaning that while she was intoxicated she was not damaging property, uttering threats, or engaged in violence or any other criminal activity. In both instances however, the RCMP ultimately arrested the appellant and took her back to the RCMP station solely because she was intoxicated and they did not know what else to do with her. In neither instance did they tell the appellant why she was being arrested; in the first incident they further struggled with the appellant to remove her clothing in police cells but did not tell her why they were doing so, or ask her to remove her own clothing.

The appellant, who had previously had some involvement with the police, resisted. [ 6 ] More specifically, in the September 2018 incident, the police were told by the appellant’s father on their arrival at his house that while the appellant had threatened him earlier, he did not want her charged but merely taken somewhere else. The officers, observing the appellant to be intoxicated, asked her if she had anywhere to go and drove her to a hotel to locate her friend Neil.

When Neil could not be found however and the appellant was unable to provide an alternative place to go, the police took her to the RCMP station. [ 7 ] The two arresting officers had different versions of when and why the arrest was made that night.

Cst Amsel testified that they did not arrest the appellant at the residence, but rather at the hotel when they were unable to get ahold of her friend – “Because there was nowhere else for her to reasonably go and we did not want to have an intoxicated person walking through the streets due to her own safety and the safety of others, we then placed her under arrest for the initial offence of mischief”.

In contrast, Sgt LeBlanc testified that the appellant was arrested at her father’s residence – “to stop the continuation of the offence of being unwanted and causing issues at the residence”, “[t]he issue is she wasn’t walking away which is the reason why she was arrested”.

Sgt LeBlanc further provided that if they had found someone sober to take the appellant into their care, she would have been released without charges. [ 8 ] Neither officer testified that they told the appellant why she was being arrested or gave any evidence as to the details of any mischief or nuisance; Cst Amsel further provided no information on why he believed there were grounds to arrest the appellant other than her intoxication, and their failure to find Neil.

However, both officers testified that when they told the appellant at the hotel that she was being taken to the detachment, she became increasingly upset. When they arrived at the police station, the appellant held on to the rails of the steps leading into the building and collapsed her legs. The two male officers stated that after they walked her into the cell, the three of them fell on the floor, where they further restrained her while trying to remove excess layers of her clothing, pursuant to what they testified was their informal policy and RCMP training.

Again, the appellant was not told why her clothing was being removed and was not asked to do it herself. [ 9 ] The officers testified the appellant was resisting during this time; video evidence was played of the events in the cell and Cst

Amsel admitted that during the entire four-minute video, they are seen holding the appellant down on the ground, hands behind her back, and trying to remove her clothing (a jacket and sweater). At one point towards the very end of the clip, the appellant flips over onto her stomach, which is exposed, and kicked, hitting Cst Amsel’s head. [ 10 ] While the appellant had previously pled guilty to the offence of resisting arrest in relation to the September 2018 events, no facts were read in or accepted at the time of the plea.

Rather, the appellant testified at trial that she told the officers she did not want to go to the detachment, and while she stated that she could not remember a great deal about how she got there, she did remember the struggle with the officers in the cell and how they were putting too much pressure on her body (shoulders, back and chest).

She stated that they were on both sides of her, and she told them it was too hard and heavy on her body, and that she was “not too sure what they were doing, but all they were doing was just putting pressure”; she confirmed they did not give her instructions or tell her to take off her own clothing. The appellant further testified it felt “very uncomfortable”, like those times she had been physically abused in the past – “It made me feel so hopeless and very upsetting”. She went on to give extensive evidence about her difficult childhood, and her experiences with sexual and domestic violence throughout her life.

In his testimony, Sgt LeBlanc confirmed that he knew the appellant had been abused in the past. [ 11 ] Lastly, the Crown introduced an Agreed Statement of Facts about comments made by the appellant the following morning upon being told she was being charged with assaulting a peace officer; namely, that “she hoped she got him well in the face if he was charging her with assault”. [ 12 ] The appellant was again intoxicated in relation to the May 2019 incident, and had little memory of the events.

When the two police arrived at the appellant’s father’s residence after he requested she be removed, the appellant and another individual, Mr S, were found on the front step of the residence; she was smoking a cigarette. Mr S was in breach of his probation conditions not be in contact with the appellant. Without further investigation, Cpl Stephenson told them both they were under arrest, and directed the appellant to come down the steps; when she did not immediately do so, he grabbed her by the arm and pulled her down.

The appellant began to yell and strike out with her arms and legs, ripping Cpl Stephenson’s radio off his vest and swinging it around, and attempting to keep her arms from being handcuffed; eventually the officers took her to the ground. The appellant further kicked at the officers upon being placed in the back of the police vehicle. [ 13 ] Again, the officers did not tell the appellant the reason for her arrest. Cpl Stephenson testified he deliberately did not do so because he “immediately wanted to take control of the situation before it escalated further as it has in the past with [the appellant]”.

He stated he had “reasonable and probable grounds to arrest her for causing a disturbance by being drunk in public and to prevent repetition of the offence... the mischief that occurred... they had been locked out. And they were still at the residence five minutes after... they weren’t wanted there”. Cst Polewski also provided that after seeing the appellant intoxicated on the steps, “she was arrestable... for disturbing the peace. She’s visibly intoxicated in a public... place. She had been committing mischief just prior to that...

As well, she was aiding and abetting [Mr S] in breaching his Probation Order”. [ 14 ] Defence counsel maintained the appellant was acting in self-defence in respect of both the September 2018 and May 2019 incidents. As to the assault police officer charge from September 2018, and considering the factors set out in s 34 of the Criminal Code , counsel pointed to the force being applied to the appellant in the video, that she was pinned down on the ground with her hands behind her back, her stomach exposed right before the kick occurred at the end of the struggle while police were trying to pull her sweater off.

In regards to the May 2019 incident, the defence argued that while the officers may have had sufficient information for an investigative detention, they did not have reasonable grounds for the appellant’s arrest and a stay on the resisting arrest charge was warranted under s 9 of the Charter. It was further argued that the appellant’s actions in resisting the unlawful arrest were reasonable, and raised the defence of self-defence to the charges of assaulting the two police officers. III.

Trial Decision September 2018 incident [ 15 ] All parties on appeal agree that the trial judge did not turn her mind to whether there were sufficient facts to accept and confirm the guilty plea to the resisting arrest charge in September 2018. There were no facts read in at the time of the guilty plea, and while the officers at trial gave two different accounts of the timing, nature and reason for the appellant’s arrest, these accounts were not assessed by the trial judge, nor did she analyze the lawfulness of the arrest to any extent, including any reasonable and probable grounds for same.

Rather, the trial judge appears to have accepted Cst Amsel’s version of events, finding that after the officers took the appellant to the hotel and Neil could not be found, she “was arrested for mischief and taken to the detachment to be lodged until sober”.

The trial judge went on to describe the appellant’s movements outside the detachment and accepted that the police “want[ed] to remove her excess exterior clothing” in cells, which caused a struggle during which the appellant “kicked at the officers... kicking one in the head.” While she acknowledged the appellant’s testimony that she told the officers she did not want to go to the detachment, and the pressure she felt on her body during the struggle which reminded her of the abuse she suffered in the past, the trial judge dismissed the defence of self- defence largely because she concluded, without analysis, that the arrest was lawful given the appellant’s guilty plea to the resisting arrest offence.

Section 34(3) is a complete answer to the defence of self defence raised in this matter. The officers were authorized to arrest [the appellant]. In effecting the arrest, they were permitted to use reasonable force.... There is no suggestion that the officer were acting unlawfully in arresting [the appellant] and taking her into custody. Accordingly, she did not have the legal right to resist the arrest. Indeed, this is acknowledged by her guilty plea to resisting arrest which arises in the same incident.

If I am wrong in the application of Section 34(3)... the defence must fail on the application of Section 34(1) and (2). . . ... I must consider whether [the appellant’s] actions were reasonable taking into consideration the factors set out in Section 34(2). In my view, the defence of self defence must fail on this ground. [The appellant] played a significant role in bringing about the use of force by forcefully resisting her lawful arrest for an extended period of time. She had other options available to her to bring an end to the situation. She needed to

simply stop struggling and fighting. In essence, the force used by [the appellant] does not meet the reasonableness test set out in

Section 34. . . . [Emphasis added] [ 16 ] In respect of these findings, the Crown concedes there should have been a deeper analysis of the facts related to the lawfulness of the arrest, and proposes a new trial be ordered on both the resist arrest and the assault police officer offences. May 2019 incident [ 17 ] In contrast, the trial judge found that the arrest was unlawful in respect of the May 2019 charges, and that the officers did not have reasonable and probable grounds to effect an immediate arrest when they found the appellant quietly smoking on the front step of her father’s residence.

As a result, the appellant was found not guilty of resisting arrest and assaulting the two police officers; however, the trial judge did find the appellant guilty of assault simpliciter in determining that the force used upon the officers was a “high level of resistance”.

More specifically, the trial judge again found that the appellant should have simply stopped struggling, even in the face of an unlawful arrest, and instead ought to have awaited a review of her detention and a judicial determination as to the actions of the police. [ 18 ] In the absence of any supporting case law, the trial judge held: The arrest of [the appellant] was essentially an assault upon her and she was entitled to use as much force as was necessary in repelling it. She was not entitled to use excessive force.

Determining whether excessive force was used in these circumstances is difficult; because if a stranger were to physically force someone into a vehicle, a very high level of resistance and force would likely be considered reasonable. Does the fact that it was police officers who were taking control impact on the reasonableness of the force used to resist? In my view, it does.

Assessing whether excessive force was used in repelling an unlawful arrest, the difficult balancing between the right of citizens to have their liberty restricted only when lawful and necessary and the public interest in having matters of police conduct and the lawfulness of police actions determined in an appropriate forum and not in the streets of our communities. The assessment which must be done is one of proportionality. Was the force used proportional to the threat faced?

The citizen who is arrested, whether lawfully or unlawfully, can expect some interference with their liberty ranging from a few minutes to hours. That is a threat that is being defended against. She can also expect an independent and timely review of her detention and arrest and ultimately a judicial determination as to the lawfulness of the police actions. The evidence is that when the officer placed his hand on [the appellant’s] arm in furtherance of the arrest, she started swinging punches... [The appellant’s] actions were immediate and sustained.

They went beyond an attempt to disengage and resist and crossed over into an attempt to harm. I find that [the appellant’s] actions were excessive and find her guilty of two counts of simple assault. [Emphasis added] [ 19 ] In respect of these findings, the Crown acknowledges on appeal that there is no legal requirement that a citizen acquiesce to an unlawful application of force merely because that force is being exerted by a police officer.

It maintains however, that the issue raised as to how far a citizen may go to resist an unlawful arrest is a complex one requiring submissions, and a new trial should be ordered. [ 20 ] In contrast, the appellant argues that the facts established by the evidence in respect of both incidents warrant acquittals on all counts.

It is submitted that but for the trial judge’s errors of law with respect to the appellant’s guilty plea and the law of self-defence, particularly placing an erroneous burden on the appellant in both instances to stop resisting even in the face of an unlawful arrest, these convictions would not have resulted. IV.

Standard of Review [ 21 ] Errors of law are to be reviewed on a standard of correctness, while errors of fact or mixed fact and law are assessed for palpable and overriding error: Housen v Nikolaisen , 2002 SCC 33 at paras 8 , 10, 36, [2002] 2 SCR 235. [ 22 ] The test for an acquittal after appeal is strict. An acquittal will only be ordered if the verdict was not only unreasonable, but could not be supported by the evidence; that is, that no jury acting reasonably could convict on the evidence. “It comes down to this.

Where the verdict is found to be unreasonable and, in any event, unavailable on the trial record, an acquittal will typically follow. In that event, an appeal court would not likely give the Crown an opportunity for a do-over to lead evidence that might have been available with due diligence” (citations omitted): R v Flynn , 2018 ABCA 70 at paras 3-5 . [ 23 ] Here, there is no argument to be made that the evidence will improve or change in a second trial.

While the test for an acquittal is stringent, in the particular facts of this case and the record before me, the Crown is unable to prove beyond a reasonable doubt that the appellant was not acting in self-defence in respect of both incidents; nor are they able to prove that her actions were unreasonable in the sense of being an excessive response to the force being used against her by police.

With this, and as will be discussed below, the appellant’s actions were not barred by s 34(3) of the Criminal Code ; rather, in both incidents, the police were trying to effect an unlawful arrest and were using physical force against her in doing so. [ 24 ]

Section 34 of the Criminal Code provides as follows: Defence of Person Defence — use or threat of force 34

(1) 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. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. V. Analysis [ 25 ] While the point was not made by the trial judge in this matter, the facts of these two incidents are remarkably similar.

They both began with the appellant being in an intoxicated state, becoming a nuisance in her father’s home, and a complaint being made to the RCMP to have her removed. They both resulted in the police attending the father’s home, and finding the appellant outside on the front step – intoxicated, but not actively committing a crime, harming or harassing anyone, damaging property, or even causing any noise.

Though the police seemed more amenable to assisting the appellant in the first incident than in the second, both incidents ended with the police making an arrest for an earlier “mischief” they did not witness, and about which they had little or no knowledge, or evidence. [ 26 ] It is difficult to reconcile how the trial judge found that the arrest in the second incident was unreasonable while finding the first arrest was lawful, on essentially the same facts.

Whether that was the result of the guilty plea to resisting arrest entered by appellant without facts being read in, defence counsel’s submission that the first arrest was reasonable, or otherwise – it was the duty of the trial judge to analyze the circumstances of each arrest to determine whether the police were acting lawfully before convicting the appellant of resisting arrest. The trial judge erred in not doing so. [ 27 ] More importantly however, neither one of the arrests was justified on the trial evidence.

While these type of nuisance complaints are undoubtedly burdensome for the police, their response must nevertheless remain lawful. Should an arrest be made, it must be on reasonable and probable grounds that an offence has been or is being committed, and not because they do not know what else to do with an intoxicated individual who is the subject of a nuisance complaint. Further, once the police assert physical control over that intoxicated individual, that control must be lawful and reasonable in all of the circumstances. That is not what happened in either of these two incidents; the arrests were unlawful.

The appellant was also not told why she was being arrested, why she was being stripped of her clothing, or why she was being manhandled by police. In such circumstances, she was not required to simply stop, submit and passively acquiesce to their unlawful actions while hoping for a better outcome sometime down the road. The trial judge erred in law in so finding. The September Incident [ 28 ] The Crown does not dispute that no facts were read into the record or otherwise agreed to by the parties at the time the appellant entered a guilty plea for resisting arrest during the September 2018 incident.

Establishing the facts necessary to support that plea and sentencing in respect of the resisting arrest offence, was adjourned until the trial on the remaining charges. However, rather than assessing the trial evidence to determine whether a lawful arrest had been made in relation to the guilty plea entered, the trial judge merely held that self-defence was not available to the appellant under s 34(3) of the Criminal Code because the RCMP officers were

acting lawfully in arresting the appellant, pointing to the appellant’s guilty plea as sufficient proof. More specifically, while the trial judge held that there was “no suggestion that the officers were acting unlawfully in arresting [the appellant] and taking her into custody”, the trial evidence is to opposite effect. [ 29 ] Namely, the two officers gave different versions of when and why the appellant was arrested; however, what was clear from both versions is that the arrest amounted to a criminal law response to a social services problem – that the appellant was intoxicated and had nowhere to go.

The appellant voluntarily left her father’s property with the officers in search of another place to stay.

Both officers said they would have left the appellant with a sober person for the night without further police involvement, and when that did not prove viable, they arrested her (Cst Amsel) or continued her arrest (Sgt LeBlanc) for an earlier nuisance at her father’s house, and for which her father had told them he did not want her charged. [ 30 ] While it appears the trial judge accepted Cst Amsel’s timing of the arrest, neither police officer’s version of the events provides the requisite reasonable grounds to justify the appellant’s arrest for mischief .

At best, Ms Gibbons was arrested for being outside on her father’s property or because no one could be found to take her in, or both, but neither objectively or subjectively establishes reasonable and probable grounds to arrest for mischief, and each seems wholly inconsistent with s 495 of the Criminal Code . I conclude there was insufficient evidence at trial upon which to reasonably find that the appellant’s arrest in September 2018 was lawful. [ 31 ] There being no lawful arrest, the appellant was entitled to resist.

She did so by telling the officers she did not want to go the detachment, and holding onto the railing into the detachment and collapsing her legs. These actions were reasonable, particularly after the police failure to tell the appellant what she was being arrested for. The later kick striking Cst Amsel’s head occurred during an extended struggle where the two male officers jointly tried to strip her clothing off in police cells, again without telling the appellant why, and without asking her to remove her own jacket and sweater; by then her stomach had been exposed.

The officers admitted that for much of this struggle, the appellant was on the ground with one officer trying to keep her arms behind her back, while the other tried to remove her clothing, without consent or discussion. [ 32 ] I cannot agree that the appellant “played a significant role in bringing about the use of force by forcefully resisting her lawful arrest for an extended period of time”, as the trial judge found.

Rather, it appears clear that following her unlawful arrest, the police caused the “extended” struggle in the cell by their unlawful arrest, and failing to advise the appellant of the reason for her arrest or why she was being stripped of her clothing. This was not a search incident to lawful arrest, and the police were not trying to seize evidence of a crime.

Further, while it was the officers who were insistent on removing the appellant’s clothing, they neither pointed to any formal RCMP policy on the necessity of their actions, nor explained how wrestling with the appellant on the ground, her being outnumbered and overpowered by two larger male officers, was in accordance with their training. The search, consisting largely of the officers holding the appellant on the ground with her hands behind her back, and pulling off her clothing, was not only unlawful, but was carried out in an unreasonably forceful manner.

It cannot be said, in the circumstances, that the kick to the officer’s head in the course of the appellant’s resistance and struggle during this unlawful assault upon her was unreasonable, nor was it excessive when considering the factors set out in s 34(2). [ 33 ] The trial judge held that that the appellant “had other options available to her to bring an end to the situation. She needed to simply stop struggling and fighting”.

First, this presumed that the police acted reasonably when they “want[ed] to remove her excess exterior clothing”, in the absence of any analysis by the trial judge as to whether such a “want” was actually necessary or lawful, or that the force used to carry out that wish was itself necessary or lawful. Second, I agree with the appellant that there was no evidence to support the inference that in these circumstances, forcible removal of any of her clothing was either lawful or authorized, or was as the appellant fairly put it, anything but a questionable practice on the part of the police.

Third, the trial judge decided it was the appellant who not only needed to act to end the police use of force against her, but that that act should have been one of absolute submission to the police. That is not a requirement of the test for self-defence under s 34(1) and (2). [ 34 ] Rather, I find the two officers were not engaged in a lawful arrest or the lawful execution of their duty when Cst Amsel was struck in the head while stripping the appellant of her clothing, and the trial judge erred in finding the Crown disproved self-defence under s 34(3).

Moreover, following from her erroneous findings as to the lawfulness of the appellant’s arrest and that she resisted unlawfully, the trial judge then failed to properly address whether the appellant’s belief that she was being assaulted, and her use of force to repel the assault, met the requirements of s 34 in the broader context of the circumstances.

This included that: • the two officers failed to explain the reason for her arrest to the appellant; • the two officers, who were significantly larger than her, forcibly tried to remove her clothing without an explanation, and they held her on the ground with her hands behind her back to do so; • there appeared to be no formal requirement for the appellant to have her clothes removed, and the police were not engaged in seizing evidence related to any offence; • the officers use of force was not a distant or potential threat, but was fully realized and the appellant had no means to respond other than to struggle against losing her clothing; • the appellant was intoxicated, but had done nothing to threaten, provoke or assault the officers; • the appellant had prior experience with, and mistrusted, the police; • the appellant had a history of being subjected to both physical and sexual violence; • while the appellant’s use of force was not insignificant, she was unable to repel or stop the assault; and • the appellant did not repel the assault and then gratuitously fight with the officers or seek to cause bodily harm or serious injury.

[ 35 ] In my view, the arrest was unlawful and the appellant was entitled to resist; further, the Crown is unable to disprove that the appellant acted in self-defence in these circumstances beyond a reasonable doubt. As such, there is no basis to send this matter back for re-hearing, as the Crown proposes. More specifically, the evidentiary record will not improve with a second trial, the parties agree on the essential facts, and the Crown is incapable of proving the elements of either offence in all of the circumstances. [ 36 ] The convictions are set aside, and verdicts of acquittal are substituted.

The May Incident [ 37 ] Similarly, I would substitute acquittals on the assault convictions related to the appellant’s May 2019 arrest. The trial judge correctly found that the appellant’s arrest was unlawful. Therefore, the police were not acting in the lawful execution of their duties and there can be no resort to the exception to self-defence provided under s 34(3).

As the trial judge found, the appellant was entitled to resist her unlawful arrest and could not be convicted of assaulting a peace officer. [ 38 ] However, the trial judge erred in finding the appellant guilty of the lesser included offences of assault simpliciter on the basis that she used excessive force. Once again, without being told why she was being arrested, the appellant found herself being physically pulled off the stairs and manhandled by a male police officer. Another male officer intervened when she resisted, and she was taken to the ground, a situation all too familiar to the appellant.

Rather than assessing the actions of the appellant in the context of her prior experience in September 2018, including that her last unlawful arrest led to her being forcible stripped of her clothing in police cells, the trial judge again imposed upon the appellant a legal duty to be quiet, passive, submissive, and simply to acquiesce during an unlawful assault upon her person, because the assault was being perpetrated by uniformed police officers. As the Crown concedes, this was wrong in law.

As Côté J recently stated for a unanimous Court in Kosoian v Soci ét é de transport de Montr éal , 2019 SCC 59 at para 139 , 440 DLR (4th) 78: “I insist on one point: an unlawful arrest - even for a short time - cannot be considered one of the ‘ordinary annoyances, anxieties and fears that people living in society routinely . . . accept’. . . In a free and democratic society, no one should accept - or expect to be subjected to - unjustified state intrusions.

Interference with freedom of movement, just like invasion of privacy, must not be trivialized.” [ 39 ] The trial judge also failed to recognize that the officers ought to have had sufficient knowledge and understanding of their duties to know they did not have grounds to arrest the appellant in the first place, and that they were required to inform the appellant of the reason for her arrest. They proceeded anyway, failing in each instance; both testifying that the appellant was arrestable as soon as they arrived on the scene and found her on the steps of her father’s residence.

Cpl Stephenson further stated that he deliberately did not tell the appellant why he was arresting her because he immediately wanted to take control of the situation.

Their actions in this regard, are far from an innocent mistake or technical error, and this should have been borne in mind in assessing the appellant’s resistance. [ 40 ] Further, the trial judge failed to address the actual factual underpinnings of the appellant’s resistance which were relevant to a proper consideration of self-defence, including that: • the arrest was unlawful and that the officers deliberately failed to explain the reason for the arrest to the appellant before placing their hands on her; • the two male officers, who were significantly larger than her, forcibly tried to drag her into their truck without an explanation; • the officers’ use of force was not a distant or potential threat, but it was fully realized and she had no means to respond except through actively resisting their attempts to handcuff her and place her in the police vehicle; • the appellant was intoxicated, and had done nothing to threaten or provoke the officers; • the appellant had recently experienced an unlawful arrest and assault on her person by the police; • the last time the appellant was transported to the RCMP detachment after an unlawful arrest, she was forcibly stripped of her clothing in cells by police; • the appellant had a history of being subjected to both physical and sexual violence; • while the appellant’s use of force was not insignificant, she was unable to repel or stop the assault; • the appellant did not repel the assault and then gratuitously fight with the officers or seek to cause bodily harm or serious injury; and • the appellant was injured during the unlawful arrest; the police officers were not injured, save for a bruised knee believed to be from forcing the appellant to the ground. [ 41 ] In all of these circumstances, the appellant’s actions in resisting her arrest and transport to the detachment in this matter, were not unreasonable or excessive.

Moreover, on this record, the Crown is again unable to disprove beyond a reasonable doubt that the appellant’s actions were made in self-defence. While the Crown argues that the question posed by the trial judge about how far a citizen may go in resisting arrest requires a retrial with “developed submissions”, I do not agree.

Once again, the facts will remain the same on a retrial; having found that the appellant’s actions in this case were not excessive in all the circumstances, the question posed by the trial judge is better left to different case. [ 42 ] The convictions for assault simplicitor are overturned and acquittals are substituted. VI. Disposition

[ 43 ] The appeal is allowed. The guilty plea is set aside, all the appellant’s convictions are quashed, and acquittals are substituted. Written submissions filed on May 13 and August 18, 2021 Reasons filed at Iqaluit, Nunavut this 12th day of October, 2021 Schutz J.A. Appearances: M. Bryant for the Respondent B. Cowan for the Appellant