Her Majesty the Queen - v. -, 2011 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 066 Date: May 16, 2011 Information: 24365412 Location: Wollaston Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donald Alex Mercredi Appearing: Mr. R. Wayne Buckle For the Crown Mr. Murray Pelletier For the Accused JUDGMENT S.I. ROBINSON , J [ 1 ] Donald Alex Mercredi of Wollaston Lake, Saskatchewan stands charged in Information 24365412 with three counts which allege that on July 4, 2010, at Wollaston Lake, he did:

a. Assault Cst. Craig Lowe, a peace officer of the Royal Canadian Mounted Police engaged in the execution of his duty, contrary to subsection 270(2) of the Criminal Code ; b. Resist Cst. Craig Lowe, a peace officer of the Royal Canadian Mounted Police engaged in the execution of his duty, by assaulting Cst. Lowe contrary to subsection 129 (

a) of the Criminal Code ; and c. Resist Cst. Craig Lowe, a peace officer of the Royal Canadian Mounted Police engaged in the execution of his duty, by assaulting Cst. Lowe contrary to subsection 129 (

a) of the Criminal Code . [ 2 ] Information 24365412's second and third counts have identical wording. I suspect that the separate counts were meant to refer to resistance directed at two different police officers, but no application to amend the wording of either count was made before me. In any event, given my view of this case, the apparent duplication of counts is of no consequence. [ 3 ] The Crown proceeded summarily on Information 24365412, and the accused entered pleas of not guilty to all charges. The charges went to trial before me at Wollaston Lake on March 30, 2011. At trial, Cst. Craig Lowe and Cst.

Brycen Rande testified on behalf of the Crown. The accused and his wife, Marie Hugarth, testified for the defence. After hearing these witnesses and argument by counsel, I adjourned the matter for decision. [ 4 ] When this matter was adjourned on March 30, I invited counsel to submit any further cases or argument they wished. By letter dated April 23, 2011, Mr. R. Wayne Buckle for the Crown concedes what I see as the main issue in this case. Notwithstanding this, I will provide written reasons for my decision. Crown Evidence [ 5 ] Mr. Buckle called two witnesses, being Cst. Craig Lowe and Cst.

Brycen Rande, to testify for the Crown at trial. [ 6 ] Cst. Lowe testified that on July 4, 2010, at 1:20 a.m., he was on duty with Cst. Rande in Wollaston Lake dealing with an unrelated matter when the RCMP call dispatcher in Regina informed them that one Donald Mercredi Junior had called to say that his father (the accused) and his mother, one Marie Hugarth, were both at home in an intoxicated state. Donald Junior had indicated that he feared for the safety of his mother and the small children that were in the house and that he therefore wanted the RCMP to attend. [ 7 ] Cst.

Rande’s evidence was similar to that of Cst. Lowe. He testified that the call he and Cst. Lowe received over their radio indicated that the accused was at home intoxicated, that the accused was fighting with his wife and that there were small children in the residence. Cst. Rande indicated that they responded to the call to insure the safety of the accused’s wife and children. [ 8 ] Cst. Lowe further testified that when he and Cst. Rande arrived at the accused’s residence, there were no lights on. He approached the residence and knocked on the door. There was no answer to his knock.

He then tried the door knob and found it to be unlocked. He then entered the residence. Cst. Rande’s evidence was similar but somewhat different. He testified that when he and Cst. Lowe approached the accused’s residence, the two doors at the front entrance were both ajar or open. Cst. Rande made no mention of any knocking but confirmed that he and Cst. Lowe entered the residence. Significantly, although Cst. Lowe testified that he had knocked on the accused’s door, neither he nor Cst.

Rande gave any evidence to indicate that they had called out to announce their presence or identify themselves as police officers. [ 9 ] Once inside the accused’s house, Cst. Lowe and Cst. Rande found the house in disarray. Several pieces of furniture had been overturned, suggesting that there had been a struggle. The accused and Marie Hugarth both testified that furniture had been intentionally turned upside down so that it could be sprayed for bedbugs. This explanation could be true, but it would not be obvious to the officers when they arrived on the scene. [ 10 ] Inside the house, Cst. Lowe and Cst.

Rande found the accused sitting quietly at a computer desk in the living room. Cst. Lowe

turned his attention to the accused, while Cst. Rande proceeded to look for the accused’s wife and children elsewhere in the house. In speaking to the accused, Cst. Lowe noted that the accused had slurred speech and a strong odour of alcohol on his breath. The accused immediately made it clear that he did not want the RCMP in his house and that there was no reason for them to be there. Cst. Lowe asked the accused to step outside the house to talk. When the accused refused, Cst. Lowe told the accused he was under arrest for being intoxicated on an Indian Reserve in breach of a Band bylaw. [ 11 ] While Cst.

Lowe was talking with the accused, Cst. Rande was able to locate the accused’s wife, Marie Hugarth, in a bedroom in the house. The bedroom was in darkness, but he was able to observe Ms. Hugarth on a bed with four children. It seems these children were young and did not include the accused’s eldest child, Donald Junior aged 16. When Cst. Rande saw Ms. Hugarth, he told her to remain in the bedroom with the children. He then left to assist Cst. Lowe. [ 12 ] The accused was not ready to co-operate with the police. At the start of the arrest, Cst. Lowe took the accused’s left arm while Cst. Rande took his right arm.

The accused immediately began to put up strong resistance. He ended up on the floor, and began to kick at the officers. Cst. Lowe was kicked by the accused in the face, shin and forearm. In an effort to subdue the accused, Cst. Lowe applied pressure to the accused’s eyes and throat. These techniques had limited effect on the accused. Attempting to gain control of the accused, Cst. Rande struck the accused several times in the face. Finally, the officers were able to handcuff the accused, place him in their police vehicle, and take him to be lodged in cells. [ 13 ] The evidence of Cst. Lowe and Cst.

Rande suggests they had limited contact with the accused’s wife, Marie Hugarth, while they were at the Mercredi residence. Cst. Rande’s first contact with Ms. Hugarth was when he found her and her children in a bedroom. He testified that his next contact with Ms. Hugarth was when he was helping Cst. Lowe arrest the accused. Ms. Hugarth showed up on the scene and began yelling in his ear. He pushed her away because he had dropped his handcuffs while struggling with the accused and feared that Ms. Hugarth might pick them up.

Later, when the accused had been taken out of his house and was being placed in the officers’ police vehicle, Ms. Hugarth was again present. Cst. Rande testified that he told her to go back into the house and look after her children. [ 14 ] Both Cst. Lowe and Cst. Rande testified in a candid and forthright manner. I accept that their evidence gives a reasonably accurate picture of what happened at the accused’s home on July 4, 2010. Defence Evidence [ 15 ] Mr.

Pelletier called two defence witnesses at trial—the accused and the accused’s wife, Marie Hugarth. [ 16 ] The accused testified that in the evening leading up to the events in question, he had consumed half of a 26 oz. bottle of whiskey he had found on the ground in his yard. When he had finished drinking this whiskey, he came into his house and was listening to music on his computer. He was using headphones to listen to the music. He did not hear the police arrive at or come into his house.

He only became aware that the police were inside his house when he saw the flash of a flashlight and heard someone “sneaking” around. The police then spoke to him but did not say why they were in the house. Rather, Cst. Lowe began asserting that the accused was drinking. The accused denied this and told the police to leave his house. The accused eventually stood up whereupon, according to his testimony, he was immediately struck by an officer. A struggle then ensued. In his testimony, the accused said he did not kick anyone intentionally.

He said that all of his actions were in self-defence. [ 17 ] At trial, the accused was quite adamant that Cst. Rande was not present during his arrest and that the police officer that had hit him in the face was not present in court. The accused was clearly mistaken on this point as Cst. Rande freely admitted to his personal involvement in the matter. [ 18 ] The accused was also adamant that upon being arrested, he was not advised of his right to contact a lawyer. On this point, I prefer the evidence of Cst.

Lowe who made it quite clear that as soon as the accused had been placed in the police vehicle, he was advised of his right to contact a lawyer, including Legal Aid duty counsel. [ 19 ] The accused testified that on the evening in question, his wife and his five children, aged three years to 16 years, were all

home. This is consistent with Marie Hugarth’s testimony, but it is somewhat at odds with that of Cst. Rande who testified that he had seen only four children. Since the police did not seek out Donald Mercredi Junior for questioning, it is not clear whether he was in the accused’s home when the police arrived there. [ 20 ] Marie Hugarth testified that on the evening in question, she had not been drinking alcohol and was sober. She said she had not called the police but speculated that her oldest son, Donald Junior, may have called the police because his father was drinking.

She further said that when the police arrived, she and all five of her children, including Donald Junior, were all together in the same bedroom. She said they were sharing the same bedroom to avoid an infestation of bedbugs in other rooms. [ 21 ] In her testimony, Marie Hugarth went on to say that when she came out of the bedroom, she found Cst. Lowe and Cst. Rande on her husband and saw Cst. Rande punching her husband.

She also testified that when the police officers took her husband out of the house and put him in their vehicle, her husband was yelling, “Marie, come across [to the police detachment side of the Wollaston community]. The cops are going to kill me!” [ 22 ] Marie Hugarth’s testimony indicated that the police had not asked her any questions concerning what had happened at her home prior to their arrival there on July 4. [ 23 ] In the course of his examination of the accused, Mr. Pelletier tendered a photograph of the accused that had been taken by a police officer after the accused’s arrest.

The photograph, entered into evidence as Exhibit D-1, shows the accused having a bloodshot right eye and a bruised left eye. I accept that the photograph depicts the injuries that the accused sustained in his altercation with the police. Issues [ 24 ] The broad issue in the present case is whether Cst. Lowe and Cst. Rande were in the execution of their duty when they arrested the accused. If they were in the execution of their duty, the accused’s use of force against the police would make the accused guilty of either assaulting a peace officer or resisting a peace officer.

On the other hand, if the officers were not in the execution of their duty, the accused would have a defence to his charges. [ 25 ] In my view, the broad issue can be looked at in the context of three questions: a. Was there a lawful entry by the police into the accused’s home? b. Assuming there was a lawful entry, was there an obligation on the Crown to prove the existence of the Band bylaw underlying the accused’s arrest? c. Assuming there was a lawful entry, did the police have a right to extend their investigation to look at the intoxication of the accused?

Was There a Lawful Entry? [ 26 ] There is no question in my mind that Cst. Lowe and Cst. Rande had a duty as police officers, to investigate the call that had been forwarded to them from the RCMP dispatcher in Regina. Although the call was short on details, it could reasonably be interpreted to mean that there might be ongoing domestic violence between Donald Mercredi and his wife. The call therefore required follow up. [ 27 ] The call that Cst. Lowe and Cst. Rande received was similar to the “911” call considered by the Supreme Court of Canada in R. v. Godoy , [1999] S.C.J. No. 85 .

In that case, four police officers responded to a 911 call that had been disconnected before the caller spoke. When the police arrived at the apartment where the call had originated, a male occupant answered the door but then tried to close it again. The officers forced their way into the apartment and found the male occupant’s wife crying with a swollen left eye. Lamer C.J.C., speaking on behalf of a full court, held that police officers were, in the circumstances, justified in forcing their way into the apartment.

At paragraph 22, he said, “Thus in my view, the importance of the police duty to protect life warrants and justifies a forced

entry into a dwelling in order to ascertain the health and safety of a 911 caller.” [ 28 ] The Godoy case involved an entry into a dwelling without a warrant. The situations where police may enter a dwelling without a warrant are now governed by

section 529.3 of the Criminal Code .

Section 529.3 allows that a peace officer may enter a dwelling without a warrant in exigent circumstances and defines exigent circumstances as including circumstances where the officer “has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person.” [ 29 ] Subsection 529.4 of the Criminal Code sets out when a peace officer who enters a dwelling without a warrant as allowed under

section 529.3 may do so without prior announcement. The subsection prohibits entry without prior announcement unless the peace officer has, immediately before entering the dwelling, “reasonable grounds to suspect that prior announcement of the entry would expose the peace officer or any other person to imminent bodily harm or death.” [ 30 ] Here, in the case before me, Cst. Lowe and Cst. Rande did have a responsibility to investigate what was behind the call regarding the Mercredi home. However, it is not at all clear that they would have had grounds to believe that anyone was in peril of imminent bodily harm.

They had some information that the accused was intoxicated and that he was “fighting” with his wife. But not all intoxication leads to bodily harm, and not all “fighting” is physical or leads to bodily harm. More information might have been obtained by meeting with Marie Hugarth, her son Donald Junior or the accused himself at the door of the residence. Such information might have convinced the officers that all was well or, as in the Godoy case, that an entry was indeed necessary. In another scenario, an inability to get someone to come to the door despite loud announcements might also give cause for entry.

But here, without more information, I am unable to find that the officers had a right to enter into the Mercredi residence without a warrant. [ 31 ] Even assuming the police officers did have a right of entry, the facts before me do not support a conclusion that the officers could enter the Mercredi home without prior announcement. In this case, it may well be that Cst. Lowe did knock on the door of the Mercredi house before entering, but there is no evidence to suggest that he or Cst. Rande announced that they were police officers. And, as conceded by Mr.

Buckle, there were no exigent circumstances to allow the officers to enter without prior announcement. [ 32 ] From listening to the testimony of Cst. Lowe and Cst. Rande, I have no doubt that when they entered the Mercredi home on July 4, 2010, they simply wanted to resolve whatever domestic dispute might be occurring. However, their evidence was not sufficient to disclose exigent circumstances that would have allowed an entry without warrant or grounds that would have allowed them to enter without first announcing their presence as police officers.

Accordingly, I must conclude that when they entered the Mercredi residence, they were not in the execution of their duty. I therefore find the accused not guilty on his charges of assaulting a peace officer and resisting a peace officer. Must the Crown Prove the Band Bylaw? [ 33 ] In the case before me, Cst. Lowe testified that he arrested the accused for being intoxicated on an Indian Reserve in breach of a Band bylaw. No evidence was tendered respecting a Band bylaw.

The question therefore arises as to whether I should take judicial notice of any Band bylaw that might be in existence. [ 34 ] In the case of R. v. Bear, Lovelace, Nicholas, Paul & Perley , [1982] 3 C.N.L.R. 78 , Stevenson J. of the New Brunswick Court of Queen’s Bench held that a court could not take judicial notice of a bylaw under

section 81 of the Indian Act because the bylaw was exempt from publication in the Canada Gazette by virtue of the Statutory Instruments Regulations . [ 35 ] Currently,

section 7 of the Statutory Instruments Regulations exempts certain federal regulations from “registration”. Those regulations include bylaws made pursuant to

section 81, subsection 83(1) or subsection 85.1(1) of the Indian Act . Further on, subsection 15(1) of the Statutory Instruments Regulations states that, “The classes of regulations that are exempt from registration are hereby exempt from publication.” Accordingly, it appears that the decision in Bear, Lovelace, Nicholas, Paul & Perley continues to inform situations where the Crown wishes to rely on a bylaw passed pursuant to

section 85.1 of the Indian Act . In these situations, the Crown should follow

section 86 of the Indian Act to prove the bylaw.

[ 36 ] In the present matter, the existence of a Band bylaw prohibiting intoxication must be seen as critical to the Crown’s case since provincial legislation would not prohibit the accused from being intoxicated in his own home. Moreover, the wording of the bylaw must also be seen as critical. Perhaps the bylaw referred to by Cst. Lowe allows a person to be intoxicated in his or her own home. Or perhaps it defines intoxication in very specific terms.

This latter point would be important in cases, such as the one before me, where there is limited evidence of intoxication. [ 37 ] I am of the view that I am not able to take judicial notice of any Band bylaw respecting intoxication in existence at Wollaston Lake on July 4, 2010. Accordingly, even if the police entered the accused’s home lawfully on that date, I would find that the Crown has not shown any valid grounds for the accused’s arrest.

I would then find that this lack of grounds put the police outside the execution of their duty and, for this reason also, go on to find the accused not guilty of his charges. Was There a Right to Extend the Investigation? [ 38 ] The initial call that Cst. Lowe and Cst. Rande received suggested that they might find an incidence of domestic violence at the accused’s home. However, their investigation at the home did not uncover any significant evidence to support a finding that the accused had committed

an act of violence against his wife or anyone else. The officers did not speak to Marie Hugarth and did not locate Donald Mercredi Junior. The only evidence before them was the appearance of tipped up furniture and an indication that the accused had been drinking. The tipped up furniture would have been unusual and suspicious. But by itself, it would not provide grounds to arrest the accused for either domestic violence or a related mischief to matrimonial property. Nor would the accused’s drinking give grounds to arrest him for violence or mischief.

When the police entered his home, the accused was quietly listening to music and apparently causing no trouble. [ 39 ] As things turned out, the accused was arrested for being intoxicated on an Indian Reserve. This can be an offence under a bylaw passed pursuant to

section 85.1 of the Indian Act . However, mere intoxication is considerably less serious than domestic violence. The breach of a

section 85.1 bylaw is a

summary conviction offence with a maximum penalty of imprisonment for three months, a fine of $100.00 or both. Absent another reason, the police would not have a right to enter a home without either a warrant or proper consent to arrest a person for an offence of this nature.

But if police have entered a home lawfully on a complaint that they then determine does not justify an arrest, can they then arrest for an unrelated and less serious matter such as intoxication? [ 40 ] There is some support in the Godoy case, supra , to suggest that police cannot easily expand their mandate after a lawful entry into a home without warrant. At paragraph 22 in Godoy , Lamer C.J.C. wrote: . . . I emphasize that the intrusion must be limited to the protection of life and safety.

The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.

But further on in the same paragraph, he added: I specifically refrain from pronouncing on whether an entry in response to a 911 call affects the applicability of the “plain view doctrine” as it is not at issue on the facts of the case at bar. [ 41 ] I am of the view that there will be circumstances where the police, having lawfully entered a private home without warrant for a particular reason, will not have the right to extend their investigation into other areas that might result in the arrest of an individual for a reason unrelated to the initial entry.

However, having already found the accused not guilty on his charges, I do not need to decide that issue in this case. [ 42 ] I wish to thank counsel for their submissions in this matter. __________________________________________

S.I. Robinson, J