R. v. Morris Date:, 2015 BCPC 430

Citation: R. v. Morris Date: 20150813 2015 BCPC 0430 File No: 81688 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARLENE NORAH MORRIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: J. Crowhurst Counsel for the Defendant: O. Snowdon, agent for C. Terepocki Place of Hearing: Abbotsford , B.C. Date of Hearing: July 21, 2015 Date of Judgment: August 13, 2015

[1] THE COURT: Arlene Morris is charged with assaulting a police officer engaged in the execution of his duty, s. 270(1) of theCriminal Code, as well as resisting or obstructing that same officer in the execution of his duty, s. 129(a). As is apparent from thespecific wording of the two charges, both required Crown to prove that, at the relevant time, the officer was engaged in the execution ofhis duty. If the officer's actions exceeded his police powers, then the offences as charged are not made out, (R. v.

Plamondon, , BCCA paragraph 29). [2] This trial involved four police officers testifying for the Crown, as the defence did not call evidence. I have carefullyconsidered the whole of the evidence and make the following findings of fact. [3] Police attended at the accused Arlene Morris' residence, in order to arrest her son for assaulting his girlfriend some 17 hoursearlier, and to apprehend the couple's child and deliver her to her mother, the victim girlfriend. When informed that the son was nothome, the police decided to proceed with apprehending the child. I am satisfied on the evidence of both Sgt.

Scott and Cst. Siemens thatthe decision to apprehend was made in advance of the police arrival at the residence, and was without an evidence-based assessment ofthe health and safety of the child and based only on the girlfriend's expressed safety concerns about the grandparents. Sgt. Scott believedhe had the discretion and the authority to enter the residence to take the child, and to use as much force as necessary. [4] In support of those police powers, Crown relies on s. 27 of the Child, Family and Community Service Act, the CFCSA.

Itreads, s. 27(1): A police officer may, without a court order, take charge of a child if the police officer has reasonable grounds to believe that the child'shealth or safety is in immediate danger. [5] Subsection 2: A police officer may, without a court order and by force if necessary, enter any premises for the purpose of taking charge of the childunder ss. 1, if

a) the police officer has reasonable grounds to believe that the child's health or safety is in immediate danger, and

b) aperson denies the police officer access to the child. [6] To emphasize, police action pursuant to s. 27 requires reasonable grounds to believe a child is in immediate danger. This is tobe contrasted with court-ordered judicially-authorized police involvement of s. 17 and 19 of the CFCSA, with the lesser test of being inneed of protection. [7] So did these officers have reasonable grounds to believe the child's health and safety within her own home was in immediatedanger?

The short answer is no. [8] Three officers testified to seeing the child in the house but gave no evidence of anything untoward about the child or herpersonal circumstances. Two officers gave evidence of the accused and possibly her husband being intoxicated, but I found thatevidence to be unreliable. There was no mention of the accused being intoxicated in the police notes, and both officers could only smellliquor coming from the home, not from the accused, in spite of their extensive dealings with her. But even if Ms.

Morris was intoxicated,the officers' conclusion that there were no other persons present in the house to care for the child was baseless, as they did not inquire,and also was contradicted by their own evidence. All officers referred to at least two other people in their late teens or early 20's beingpresent.

The police then were not justified in apprehending or taking charge of the child without court order, nor were they entitled toenter the residence to do so. [9] After carefully considering the whole of the evidence, I am satisfied the police did indeed step into the residence before anyphysical response from the accused. I refer, for example, to the evidence of Cst. Behm, “it looked like Sgt.

Scott was attempting to go inthe door; pretty sure he was partway in the residence when the accused's hand was on his arm or wrist holding him back.” It was at thatpoint that the accused was arrested for assault P.C. and obstruct, yet there was no common-law or statutory justification for the officer'sentry into the residence without consent, which clearly was absent in this case. [10] Accordingly, I find the officers were not acting in the execution of their duty at the time of the alleged assault or obstruct.

Count 2, the obstruct/resist charge is dismissed. [11] The assault P.C. in the execution of his duty has not been made out, but can the accused be convicted of simple assault? [12] Of note, the accused is only charged with assaulting Officer Scott, not any fellow officer. The evidence at the entryway is thatthe accused grabbed the officer's arm and tried unsuccessfully to push him out of the way while trying to close the door. Given theunlawful entry by the police, in my view such action was justified and cannot be characterized as an assault.

If not, I would have found itto be de minimus. [13] In their subsequent efforts to arrest and handcuff Ms. Morris, which I find to be unlawful, she ended up on the couch with herhands under her body, clearly resisting being handcuffed. Officer Scott says she was on her back and deliberately turned and kicked himtwice. Two others, however, say she was face-down on the sofa, struggling and kicking, while having her arms pulled out andhandcuffed behind her back. [14] The conflict in the evidence raises a reasonable doubt as to whether the accused intentionally kicked Officer Scott.

She cannotbe found guilty of the lesser included offence, and I acquit her of Count 1 as well as Count 2. C.J. ROUNTHWAITE

Provincial Court Judge