R. v. Bursey-Young, 2017 ONCJ 289

ONTARIO COURT OF JUSTICE CITATION: R. v. Bursey-Young, 2017 ONCJ 289 DATE: May 1, 2017 COURT FILE No.: Cobourg BETWEEN: HER MAJESTY THE QUEEN — AND — COULTER BURSEY-YOUNG Before Justice B. M. Green Heard on April 18 th , 2017 Reasons for Judgment released on May 1 st , 2017 Ms. Bryant, Counsel for the Crown Mr. Richter, Counsel for the Defendant GREEN J.: A. Introduction [ 1 ] Mr. Bursey-Young is charged with four separate counts that arise from an altercation with police that occurred on August 28 th , 2016: i. That he assaulted Sgt Richardson with intent to resist the lawful arrest of himself; ii.

That he assaulted Cst. Salisbury with intent to resist the lawful arrest of himself; iii. That he resisted Sgt. Richardson’s attempts to arrest him by not adhering to verbal commands and by continuing to fight; and iv. That he willfully obstructed Sgt.

Richardson in the execution of his duty, which was attempting to enter a residence to ensure the safety of the occupants, by blocking access to his residence and by standing in the entrance and hallways of the residence preventing the officer from gaining access. [ 2 ] Counsel fairly conceded all facts with respect to the date, jurisdiction and the identity of his client in order to focus on the specific issues for this Court’s consideration. Similarly, there appears to be no issue with the basic facts that on the date alleged in the information, three Cobourg Police Officers entered Mr.

Bursey-Young’s home without his consent and once inside, Mr. Bursey-Young assaulted two of those Officers by chest bumping one and kicking the other in the shin and he resisted the Officers’ attempts to arrest him for assaulting the police. [ 3 ] While these basic facts are not in issue, there are a combination of factual and legal issues for this Court to determine: I. The circumstances leading up to and surrounding the police entering the home and the unfolding of events once inside the home; and

II. Whether or not the police were engaged in the lawful execution of their duties when they forcibly entered this home and engaged in an altercation with Mr. Bursey-Young and whether his arrest was lawful in these circumstances. [ 4 ] At the outset, it is important to note that an essential element of all of the charges before the Court is that the police must have been acting in the lawful execution of their duties when they forcibly entered the Defendant’s home and subsequently tried to arrest him.

If the Officers’ conduct exceeded their lawful authority, they were not acting in the lawful execution of their duties. B. Evidence [ 5 ] The Crown called 3 police witnesses to explain the events that led up to police attending Mr. Bursey-Young’s residence located at 1185 Division Street in Cobourg in response to a 911 call, what they observed at the scene, why they chose to forcibly enter this residence and why they believed they were acting in the lawful execution of their duties. Sgt. Richardson [ 6 ] On August 28 th , 2016, Sergeant Richardson was working at the station with two constables, Cst.

Salisbury and Cst. Maguire. At 6:08 a.m., Sgt. Richardson received information from the Dispatcher that there was a 911 call reporting a “domestic” involving a male and female at an address of 1185 Division Street in Cobourg. Sergeant Richardson received further information from the Night Sergeant that there had already been two calls to that residence overnight. During cross-examination, the Sergeant was unable to recall any other significant details with respect to the information that he received from the Dispatcher, although he did recall that the male named in the call was Mr. Bursey-Young.

He also was not able to recall if the other calls the night before related to Mr. Bursey-Young. He related that the other calls for service to that address came in at 3:09 a.m. and 4:07 a.m. He agreed that one of the calls was in response to a loud party or a noise complaint and the second call may have been in relation to an “accidental” 911 call. [ 7 ] Sgt. Richardson spoke with Cst. Salisbury and Cst. Maguire to discuss responding to the call. Cst. Maguire immediately advised his Sergeant that Mr. Bursey-Young is his cousin.

The Sergeant decided that all three Officers would respond to the call because domestic incidents can be “volatile” and as many Officers as possible should attend the scene. All three Officers were in uniform and operating separate police vehicles so they attended the scene separately. [ 8 ] Sgt. Richardson was the first Officer on scene. He arrived at 6:13 a.m. and he approached the house. Within a short period of time, Cst. Salisbury and Cst. Maguire arrived on scene and they also approached the house behind the Sergeant.

In order to access the house at 1185 Division Street, the Sergeant had to ascend a flight of stairs that lead up to a deck or veranda. When he ascended the stairs, there was a male and female sitting on the deck to the right of the stairs. He described them as calm. During cross-examination, he indicated that he asked them what was going on and they seemed very relaxed. [ 9 ] A female exited the residence and he asked her if she was okay and she replied that she was okay. The Sergeant explained to her that he was responding to a 911 call for a “domestic”.

During cross-examination he agreed that he knew that this female was an occupant of the house who was later identified as Brandy Martie and that she was the spouse of Mr. Bursey-Young. He also indicated that when he spoke with her about responding to a 911 call, she advised him that the police had already been there earlier and that the police were not needed. At one point, he described her demeanour as “elevated” but he did not provide any context for that description of her conduct.

For example, it is unclear if she was already “elevated” or whether she became “elevated” after she told an Officer that she was okay and that police were not needed but the Sergeant insisted on entering her home anyways. [ 10 ] Sgt. Richardson did not ask Ms. Martie or either of the relaxed people sitting on the veranda any further questions or engage them in further conversation. He agreed that none of them had any apparent injuries and he could not hear any yelling from inside the house.

While he was testifying, it did not appear that he even considered whether the observations that he made when he arrived on scene should have attenuated any concerns that he had for the occupants of the home and, in light of those observations, whether there were other investigative alternatives that he could have followed other than forcibly entering a home. [ 11 ] Within 30 seconds of speaking with the female spouse, Mr. Bursey-Young exited the home and told the Sergeant that he was not going to be allowed in the house. The Sergeant advised Mr.

Bursey-Young that he was going to enter the house because of a purported 911 call for a “domestic” and he had to make sure that everyone inside was okay. Mr. Bursey-Young yelled at Sergeant Richardson that he needed a warrant to enter his house. Sergeant Richardson persisted with explaining that he needed to enter the house to make sure everyone was safe. Mr.

Bursey-Young was loud, belligerent and profane throughout his verbal exchange with the Sergeant. [ 12 ] During cross-examination, the Sergeant agreed that, despite three Officers being on scene, none of them took additional time to speak to any of the adults, including Mr. Bursey-Young’s domestic partner, who were immediately available outside the home. He stated that Mr.

Bursey-Young’s behaviour made him wonder who was in the house and what was going on even though his domestic partner was standing outside the house apparently unharmed. [ 13 ] As the Sergeant approached the front door to the house, he testified that Mr. Bursey-Young ran into the house and attempted to close the front door on him. He said that the door swung in his face and he was pushed back. He explained that Cst. Salisbury was directly behind him and they managed to push the door open. Sergeant Richardson related that he is taller and approximately 100 pounds heavier than Mr. Bursey-Young.

In the process of forcing the door open, Mr. Bursey-Young appeared to lose his footing and he fell back into the kitchen area and then stood back up. The Sergeant announced “Cobourg police is everyone okay?” Mr. Bursey-Young ran into a neighboring room and then came back around, ran at the Sergeant and chest bumped him with enough force that it caused him to step back. Mr. Bursey-Young was consistently irate and used profanities with the Officers. As result of being struck by Mr. Bursey- Young, the Sergeant told him that he was under arrest for assaulting a Police Officer. [ 14 ] Mr.

Bursey-Young was not compliant with any attempts to arrest him. He initially ran away. They tried to grab him and he was actively resisting by pushing, kicking and flailing his arms. The Sergeant told him a number of times that he was under arrest and told him to stop resisting arrest. Cst. Salisbury was over the Sergeant’s left shoulder and they were struggling to control him. Cst.

Maguire had also entered the house. At some point during the struggle, one of Mr. Bursey-Young’s kicks struck Cst. Salisbury. The Sergeant decided the best way to gain control in such a tightly confined area would be to take him down to the floor. Using his body weight and size, he initially motioned to take Mr. Bursey-Young down to the right but Ms. Martie entered the room and began yelling “my baby, my baby”. In that moment, Sgt. Richardson saw two little eyes looking at him from a car seat that was on a bench or a chair.

He realized there was a baby nearby so he suddenly shifted directions to his left to avoid the baby. This jarring movement as well as the ongoing struggle caused a whip lash injury to his back. [ 15 ] During cross-examination, Sergeant Richardson denied that Mr. Bursey-Young ever yelled at him expressing concern about the safety of his child and he denied that the child was on a couch as opposed to a chair or bench. He agreed that, from the first moment that he engaged Mr. Bursey-Young and throughout his dealings with him, Mr.

Bursey-Young was unequivocal that he did not want police in his home, he insisted that they needed a warrant and he wanted them off of his property. [ 16 ] When the Sergeant was able to get Mr. Bursey-Young down on a couch/fold out bed, he saw Cst. Salisbury draw his C.E.W. ( conductive energy weapon ) and say “taser, taser, taser” three times. As soon as those words were spoken, Mr. Bursey-Young stopped fighting. Cst. Maguire stepped in, placed handcuffs on Mr. Bursey-Young and escorted him out of the house. Sergeant Richardson testified that Mr. Bursey-Young was arrested at 6:18 a.m. Sgt.

Richardson followed them outside and, on the way to the police cruiser, Mr. Bursey-Young continued to be belligerent and kicked at the Officers. [ 17 ] Once the Officers returned to the station, Sergeant Richardson was not feeling well so he approached another Sergeant and advised him that he was injured. He was taken to the hospital by another Officer and was off work as a result of his back injury for a few weeks.

In addition to the back whiplash, he had abrasions to his shin. [ 18 ] Although Sergeant Richardson presented as a witness who was trying to honestly relate the unfolding of events that night, this Court rejects the Crown’s submissions that his evidence should be accepted. The reliability of his evidence is very problematic. He was unable to recall significant details until he was prompted by leading questions during cross-examination. Most importantly, he couldn’t recall exactly what information was related to him by the Dispatcher.

He could not remember many important facts about the complainant but he thought she was female. He couldn’t remember whether the 911 caller was initially identified or the nature of the reported “domestic”. When he was confronted with entries in his notes to flush out the information that he received prior to responding to the call, he agreed that he learned that the 911 caller was a Kate Witkowski but he believed that he only learned that information after Mr. Bursey-Young was arrested although he could not recall from whom. He also agreed that Ms. Witkowski was not on scene when he arrived at Mr.

Bursey-Young’s home. She arrived after Mr. Bursey-Young was arrested. Finally, he agreed that there was an entry in his notes that referenced that Ms. Witkowski said she will take the baby and her sister (Brandy Martie) to Whitby but he could not recall exactly when or where he got that information from although he thought it might have been from another Officer. When Cst. Maguire’s evidence is reviewed, it is apparent that this was the information that was actually related to Sgt. Richardson by the Dispatcher. [ 19 ] Sgt.

Richardson did not articulate why he felt compelled to check on the lives and safety of the occupants of Mr. Bursey- Young’s home, whose lives or safety he was concerned about and he certainly did not provide any evidence about exigent circumstances to justify his conduct. Rather, he steadfastly maintained that he was lawfully entitled to forcibly enter a dwelling house if he was responding to a “domestic” and that he did not need a warrant to check on the safety of residents.

I note that, although he claimed that he entered the home to check on the safety of the occupants, there is absolutely no evidence that he or any other Officer ever checked the residence to ensure the safety of the occupants other than the initial announcement of their presence in the house. Instead, according to him, he pushed the door open, became embroiled in a short-lived physical confrontation with Mr. Bursey-Young and then they left his home immediately after they arrested him. Cst. Salisbury [ 20 ] Cst. Salisbury was also present when the Dispatcher contacted the station to report a 911 call.

He related that they were requested to attend an address in response to a “911 domestic call”. He recalled a few more details than Sgt. Richardson about the information that they were provided from the Dispatcher. They were told that the complainant was Kate, that there was an ongoing “verbal” argument at the residence, police had already been there twice over night and both times they were told that the police were not needed. [ 21 ] Cst. Salisbury advised that he arrived on scene at 6:18 a.m. and Sgt Richardson had arrived on scene moments before him.

He said that the Sergeant had just exited his police vehicle when he arrived and he was walking up the stairs when he met up with the Sergeant and followed directly behind him. Cst. Salisbury recalled that there were “several” people on the porch and Mr. Bursey-Young was in the doorway to the residence. He believed that they seemed upset but he was not asked to provide further evidence to explain this general observation. He could not recall how many people were on the porch. Contrary to the Sergeant’s account, he denied that either he or Sgt.

Richardson engaged any of these individuals in a conversation. [ 22 ] During cross-examination, Cst. Salisbury agreed that, as he approached the residence, his mindset was that he was lawfully entitled to forcibly enter a residence without a warrant if there was a 911 “domestic” call and that this conduct was standard police procedure. [ 23 ] Cst. Salisbury confirmed that Mr. Bursey-Young yelled at them that they were not entering the residence and they needed a warrant. Mr. Bursey-Young stood in front of both Officers and attempted to block their entry to the residence. He explained that Mr.

Bursey-Young was “preventing” them “verbally” from entering the house. Cst. Salisbury testified that he advised him that the police received a 911 call about a domestic dispute and police were going to enter the house for the purposes of ensuring that all parties were safe and unharmed. Cst. Salisbury described Mr. Bursey-Young backing up as Sgt. Richardson was going through the door and then Mr. Bursey-Young chest bumped the Sergeant. He did not witness any altercation involving the door or Mr. Bursey-Young running around before the chest bump.

Following the chest bump, he said that he announced loud verbal commands for Mr. Bursey-Young to get back and advised him that he was under arrest. He tried to grab his wrist to effect the arrest and a struggle quickly ensued. Cst. Salisbury’s recollection of the entry into the house and the initial altercation with Mr. Bursey-Young was different from Sgt. Richardson’s account.

[ 24 ] After the chest bump, Cst. Salisbury described Mr. Bursey-Young as very confrontational with Sgt. Richardson and that he moved aggressively towards him. He was concerned for the Sergeant’s safety. While he was trying to position himself between his Sergeant and Mr. Bursey-Young, the Defendant kicked Cst. Salisbury on his right shin. He sustained abrasions, swelling and some discolouration to his shin. He did not mention anything during his evidence about a baby being in the room during the altercation, shifting their positions to avoid the baby or Ms. Martie entering and yelling “my baby”. [ 25 ] Cst.

Salisbury testified that after he was kicked, he drew his C.E.W., turned it on and pointed it at Mr. Bursey-Young. He gave a verbal warning, stating “taser taser taser”. Once Mr. Bursey-Young saw the taser, he stopped fighting and Cst. Maguire was able to handcuff him. After Mr. Bursey-Young was arrested, Cst. Salisbury did not relate any further disruptive or belligerent behaviour. Despite insisting that he entered the house to check on the safety of the occupants, he also did not testify about any efforts to check the residence or the safety of its occupants at any point. Rather, he left the house after Mr.

Bursey-Young was arrested. [ 26 ] Cst. Salisbury agreed that there was an entry in his notes that reflected that, after Mr. Bursey-Young was arrested, he had a conversation with the spouse of Mr. Bursey-Young, Brandy Martie and the initial complainant Kate Witkowski. Cst. Maguire [ 27 ] In contrast to Cst. Salisbury’s and Sergeant Richardson’s vague recollections of the nature of the Dispatch call that they were responding to, Cst. Maguire provided significantly more details about the information that all three Officers received from the Dispatcher.

He related that they received a radio call from Dispatch at 6:02 a.m. to respond to a possible domestic at 1185 Division Street in Cobourg. The caller was Mr. Bursey-Young’s girlfriend’s sister, Kate Witkowski. She called 911 because her sister Brandy contacted her and told her that she had a “verbal domestic” dispute. Kate advised that she was going to the house to pick up her sister and her baby and she wanted the police to attend because she believed that Mr. Bursey-Young would be angry. [ 28 ] It was clear from Cst.

Maguire’s evidence that the police knew that the 911 caller was not at the residence, rather, she was planning on attending the residence and wanted the police to be there in case Mr. Bursey-Young became angry. In addition to the information from Dispatcher about the 911 caller, they were advised that there were two previous calls to the same address that night for verbal domestic incidents. [ 29 ] Because Mr. Bursey-Young is Cst. Maguire’s first cousin, he advised the Sergeant of their familial relationship to avoid any conflicts of interest.

The Sergeant instructed him to attend the call anyways in an assistance capacity. Cst. Maguire explained to the Court that he is not close to his cousin, he did not know his girlfriend and he didn’t even know that they had a baby. [ 30 ] During cross-examination, Cst. Maguire confirmed that he wrote down all of the information that he received from the Dispatcher and that he was sure that all three Officers received the same information that Kate Witkowski related that Mr. Bursey-Young would be angry when she attended to pick up his child.

He mentioned that he talked to the Sergeant about this information and his Sergeant “clarified” that it was a domestic. [ 31 ] Cst. Maguire advised that he was the last Officer on scene arriving at 6:18 a.m.. When he arrived, he observed 4 people. Three people off to side of the doorway on the porch and Mr. Bursey-Young was standing in the doorway to his home. One of the people standing on the porch was Mr. Bursey-Young’s girlfriend, Brandy, and she asked why the police were back at the house again. He said that Sgt.

Richardson replied that they received a call for a domestic incident and that they would be checking the house for safety reasons. Mr. Bursey-Young told the Sergeant “no”, police were not welcome in his house and that they needed a warrant. The Sergeant persisted and explained that they had to do their jobs and check the residence. [ 32 ] During cross-examination, Cst. Maguire agreed that he did not talk to any of the individuals on the porch and that none of them appeared to be distressed or harmed in any way. He agreed that Mr.

Bursey-Young said that he didn’t want the police there and he stated that no one had called the police for assistance. [ 33 ] When the Sergeant entered the residence, Cst. Maguire was still on the stairs and he did not see how he entered the home. As he entered the residence, Mr. Bursey-Young continued to tell the Sergeant that he should “get the fuck out” and “where is your warrant”. Mr. Bursey-Young and the Sergeant were standing face to face and then Mr. Bursey-Young chest bumped the Sergeant. He did not relate any observations of Mr. Bursey-Young running at the Sergeant prior to chest-bumping him. [ 34 ] Mr.

Bursey-Young was told to step back but he came at the Sergeant again and the Sergeant told him that he was under arrest. The Officers tried to arrest Mr. Bursey-Young and attempted to get control of him by grabbing his wrists. Mr. Bursey-Young was combative, struggling, throwing pouches and kicking at the police. They were telling him to stop resisting but he persisted with this behaviour. As they were struggling, they almost fell on Mr. Bursey-Young’s baby who was sleeping on a couch. They tried to transition Mr. Bursey-Young onto another couch/fold out bed. Finally, Cst.

Salisbury drew his taser, gave three warnings at which point Mr. Bursey-Young became compliant. [ 35 ] Cst. Maguire agreed that he made a notebook entry that while Mr. Bursey-Young was telling the police that they had to have a warrant, he was telling them that he has a “baby in here” and that the baby was on a couch. [ 36 ] Finally, like the other two Officers, he did not mention that any of them checked the residence for the safety of its occupants. He also did not relate any further combative or belligerent behaviour by Mr. Bursey-Young after he was arrested.

Summary of the Crown’s case [ 37 ] The most important facts for the Crown to establish in this case were the reasons why the police believed that they were

lawfully entitled to forcibly enter Mr. Bursey-Young’s residence. Although Sgt. Richardson steadfastly maintained that he wasresponding to a “domestic”, he was unable to provide any further details as to why he believed this was a domestic call in the first place. Likewise, Cst. Salisbury provided scant details.

He believed that the 911 caller was someone named Kate and that there had been averbal argument but he also insisted that they were responding to a “domestic” even though he did not provide any details with respect tohow or why he arrived at this conclusion. [38] In contrast to the first two Officers, Cst. Maguire had a clear recollection and had taken detailed notes. He testified thatDispatch related to them information that this was effectively a keep the peace call.

Kate Witkowski was going to get her sister and herbaby because she had a verbal argument with her partner and she was concerned that her sister’s boyfriend, Mr. Bursey-Young, wasgoing to be angry.

From the contents of the call, it was evident that she was not at the address yet, rather, she was going to go there andwanted help from the police. [39] In terms of the background of the call, the police witnesses provided inconsistent accounts of what information they had aboutthe two previous calls to the residence that may have assisted with contextualizing the latest call to police or their perceptions of thesituation. Sgt. Richardson testified that at least one call was a noise complaint and the other was possibly an accidental 911 call.

Cst.Salisbury related that police had already been there twice over night and both times they were told that the police were not needed. Cst.Maguire believed the prior calls related to verbal domestic arguments. [40] Although I accept that Sgt. Richardson and Cst. Salisbury were trying to honestly relate their sketchy recollections of thatmorning, they forgot crucial information and contradicted each other. Neither one of them took detailed notes that would have assistedthem with more accurately remembering what happened and why they were responding to this address.

Each of the Officers providedconflicting accounts of: the times of the call and arrest, how the events unfolded once they were on scene, whether or not and to whatextent the police engaged any of the witnesses in a conversation prior to entering the house, the demeanour of the witnesses, how thepolice entered the house and what happened once they were inside the house.

Considering all of these inconsistencies, certain aspects ofthe first two Officers’ evidence was inherently unreliable. [41] For example, one significant area of inconsistency was with respect to what happened at the doorway to the residence and thenarrative of events once inside. Count 4 is particularized to allege obstructing the police by “blocking access to the residence” and by“standing in the entrance and hallways of the residence preventing the officer from gaining access”. Sgt.

Richardson testified about astruggle at the entrance to the house involving the front door, pushing back and forth with the door with enough force that Mr. Bursey-Young fell to the floor, then he got up and was running around inside the residence before he chest bumped the Sergeant. His accountwas contradicted by Cst. Salisbury’s evidence, who was directly behind him as they entered the house. Cst. Salisbury described Mr.Bursey-Young blocking access to the residence but later explained that he was verbally preventing them from accessing his home. Moreover, he testified that as the Sergeant entered the house, Mr.

Bursey-Young was backing up. He did not witness any physicalstruggle with the door or the accused falling to the floor when the door was forced open and he did not see the Defendant running aroundprior to the chest bump. Cst. Maguire described Mr. Bursey-Young as being face to face with the Sergeant prior to the chest bump. [42] The Crown’s submissions about how the Court should address the inconsistencies in the evidence and both the Sergeant’s andCst. Salisbury’s memory lapses are perplexing at best. The Crown conceded in written submissions that Cst.

Maguire’s evidence did notdisclose any emergent circumstances but, went on to argue that because the other two Officers had no recollection of this essentialinformation from the Dispatcher then the Court should find that they were justified in forcibly entering a dwelling house. Effectively,the Crown is urging the Court to ignore the carefully recorded and detailed recollection of Cst. Maguire and prefer the patentlyunreliable evidence of two other Officers who were unable to provide significant details because their evidence supports the Crown’stheory for conviction.

The Ontario Court of Appeal recently reiterated the long recognized and distinctive expectations of Crowncounsel as Officers of the Court in R. v. Manasseri, 2016 ONCA 703 , [2016] O.J. No. 5004 at para. 103 and 104: Crown counsel is an advocate, but one who occupies a special position in the prosecution of criminal offences. That special positionexcludes any notion of winning or losing and must always be characterized by moderation and impartiality.

The Crown must limit his orher means of persuasion to facts found in the evidence… [43] The inability of these two Officers to recall the actual nature of the original call is not evidence upon which the Crown shouldhave relied to found a conviction. It did not support the crown’s case nor could it prove that the Officers were acting in the lawfulexecution of their duties.

It is inconceivable that any Court would find that Officers were justified in using this extraordinary power toforce their way into a house because the police either did not pay sufficient attention to the nature of the initial call or they forgot thedetails of the call. [44] There were, however, some consistencies in the Officers’ accounts and certain facts that this Court accepts based on a review ofthe totality of the evidence. I accept Cst. Maguire’s detailed account that the police were dispatched to attend in response to a 911 caller: I. who was identified as Kate Witkowski. Ms.

Witkowski is Brandy Martie’s sister who was Mr. Bursey-Young’sgirlfriend/spouse; II. Ms. Witkowski was not at the address that she was asking the police to attend at; III. She was asking for help with ensuring that she was able to peaceably collect her sister and her baby because she had a verbalargument with her spouse, Mr. Bursey-Young; and IV. Ms. Witkowski’s only expressed concern was that Mr.

Bursey-Young would get angry when she attended his home. [45] Based on some of the information that was flushed out during cross-examination, I also accept that all three Officers were awareof the nature of the 911 call before they went to the scene but Cst. Salisbury’s and Sgt. Richardson’s memories of what they were told bythe dispatcher have deteriorated with the passage of time. I do not find that either Officer was attempting to mislead the Court in any

way or deliberately misstating the nature of the call, rather, they were unable to recall significant details. It is nevertheless troubling thatthey both insisted that they were responding to a “domestic” when they couldn’t recall why they believed it was a domestic call. At best,Cst. Salisbury recalled that it was a verbal domestic dispute. [46] I find that when the police arrived on scene, they were greeted by two calm and unharmed people on the porch. Mr. Bursey-Young’s partner was also on the porch. She told the police that she was okay and she wanted to know why the police were at her home.

She was not distressed, injured or seeking any assistance from the police. There was no apparent disturbance either inside or outside ofthe house. Despite three Officers responding to the scene, it appears that none of them considered how these observations should haveimpacted their determinations of whether a safety search of the home was warranted, whether they could have satisfied any pre-existingconcerns through other investigative steps or even whose life or safety it was that they felt duty bound to check on when they knew thatthe 911 caller was not on scene and the domestic partner was not in the house.

Each of them related a tunnel-visioned perspective thatthey were duty bound to enter Mr. Bursey-Young’s house to check on the safety and well-being of unidentified occupants because theywere responding to a “domestic” call regardless of the circumstances. [47] There is no doubt that Mr. Bursey-Young was agitated, belligerent and verbally abusive. He was unequivocally clear that hewanted the police to leave his premises, they were not welcome and he stepped back into his home as the police approached him. [48] Three Police Officers forced their way into Mr. Bursey-Young’s home.

Each Officer relied on standard police policy to justifytheir conduct. Once inside, Mr. Bursey-Young chest bumped the Sergeant only after repeatedly telling the police to leave his premisesand then a struggle ensued when they tried to arrest him. He consistently told them to leave and vocally expressed concern that his babywas on the couch although I note that his child’s presence did not deter him from fighting with the police or yelling and swearing.

Ofparticular note, I find that, despite each of the Officers insisting that they went into the house to conduct a check on the safety of theoccupants, as soon as Mr. Bursey-Young stopped fighting and they handcuffed him, they all left the house. None of the Officersconducted a safety check of the household or its occupants. C. Legal Analysis i. Legal authority to forcibly enter a home: [49] The Crown submits that the Officers were acting in the lawful execution of their duties when they entered Mr.

Bursey-Young’shome because they were responding to a report of a domestic nature and the police were duty bound to check on the safety of theoccupants. In contrast, Counsel for Mr. Bursey-Young argues that there was no reported domestic disturbance or articulable reason to beconcerned for the well-being of the occupants of Mr. Bursey-Young’s residence. As a result, the police exceeded their lawfulauthority. [50] Police have a duty to protect the lives and safety of the public. However, not all police actions that are related to this recognizedduty are authorized by law.

As the Supreme Court noted: “Quite the opposite, only such acts as are reasonably necessary for theperformance of an officer's duties can be considered, in the appropriate circumstances, to be so authorized.” The question for this Courtto decide is whether the police action of forcibly entering Mr. Bursey-Young’s home was reasonably necessary for carrying out thatparticular duty in light of all the circumstances. Please see R. v. MacDonald, 2014 SCC 3 , [2014] S.C.J. No. 3 paras. 36 to 39(S.C.C.) [51] The fact that the police were responding to a 911 call is an important consideration.

Calls to 911 normally signify that the calleris in distress which may or may not engage a Police Officer’s duty to check on the safety and well-being of the occupants of a residence. In the seminal decision of R. v. Godoy, (SCC), [1998] S.C.J. No. 85 at para. 16 (S.C.C.), the Supreme Court of Canadaexplained that: A 911 call is a distress call -- a cry for help. It may indeed be precipitated by criminal events, but criminal activity is not a prerequisitefor assistance. The duties specifically enumerated in s. 42(1) of the Act may or may not be engaged.

The point of the 911 emergencyresponse system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 911call, the nature of the distress is unknown. However, in my view, it is reasonable, indeed imperative, that the police assume that thecaller is in some distress and requires immediate assistance. To act otherwise would seriously impair the effectiveness of the system andundermine its very purpose.

The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is ormay be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. (Emphasis mine) [52] Concerns for the safety and well-being of occupants of a residence are particularly intensified when police are dispatched to a911 call for assistance that involves a domestic dispute. Justice Hill explained in R. v. Wilhelm, 2014 ONSC 1637 , [2014] O.J.No. 1176 at para 101 (Ont. S.C.

J) that: We accept that "[d]omestic violence cannot be tolerated in our community": R. v. Menary, 2012 ONCA 706, at para. 7. Domesticviolence is ordinarily understood, and was by the police witnesses in this case, to refer to physical aggression by one spouse againstanother. There is today a much greater recognition by the police of both the extent and seriousness of the problem of domestic violenceand the need to respond to such incidents: R. v. Sanderson (2003), (ON CA), 174 C.C.C. (3d) 289 (Ont. C.A.), atpara. 45.

"[D]omestic violence is a serious matter which deserves quick attention by the police": Tymkin, at para. 107 per Monnin J.A. indissent in the result. The 9-1-1 call system is seen as a form of crisis response providing society an effective means of dealing with adomestic violence emergency: Godoy, at para. 21. [53] In order to investigate a 911 call and to ensure the safety and well-being of the occupants, the police undoubtedly have thepower to forcibly enter a dwelling house. That power, however, is not limitless. The Supreme Court of Canada clearly limited the state’slegal authority in R. v.

Godoy, supra at para. 22: ….the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health andsafety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to

merit some intrusion on a resident's privacy interest. However, I emphasize that the intrusion must be limited to the protection of lifeand safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasonsfor making the call and provide such assistance as may be required. The police authority for being on private property in response to a911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident's privacy or property.

InDedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it mustbe reasonable. A reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in thehome. If this can be done without entering the home with force, obviously such a course of action is mandated.

Each case will beconsidered in its own context, keeping in mind all of the surrounding circumstances. (Emphasis mine) [54] Last month, the Ontario Court of Appeal revisited the Godoy decision and summarized the current state of the law with respectto warrantless entries by police into private dwelling homes as follows: The s. 8 right to be secure against unreasonable searches protects a person's expectation of privacy from state intrusion. Nowhere is thatexpectation of privacy higher than in one's home. To enter a home, police ordinarily need previous authorization: a warrant.

Warrantlessentries of a home are presumed to be unreasonable and in breach of s. 8. See R. v. Silveira, (SCC), [1995] 2 S.C.R. 297,at para. 162. But exceptions exist, both by statute and at common law. For example, under s. 529.3 of the Criminal Code, R.S.C. 1985, c. C-46, thepolice may enter a home without a warrant to arrest or apprehend a person if the conditions for obtaining a warrant exist but "exigentcircumstances" -- that is, urgent or pressing circumstances -- make it impractical to obtain one.

The Code includes among exigentcircumstances those where the police have reasonable grounds to suspect entry into the home is necessary to protect a person's imminentharm or death, or to prevent the imminent loss or destruction of evidence. A common law exception to the presumed unreasonableness of warrantless entries into a home is at issue in this appeal. Godoy affirmsthe principle that the police have a common law duty to protect a person's life or safety and that duty may, depending on thecircumstances, justify a forced, warrantless entry into a home. Please see: R. v. Davidson, 2017 ONCA 257 , [2017] O.J.

No. 1572 paras. 20 to 22 (Ont. C.A.) [55] While there can be no issue that the police have a duty to investigate 911 calls which may necessitate, in certain circumstances,forcibly entering the sanctity of a person’s home, a Court must be cognizant of the limitations on that extraordinary power. As theOntario Court of Appeal noted in the Davidson decision, supra at paras 25 and 26: Chief Justice Lamer, writing for the court, held that when the police receive a 911 call they have authority to investigate the call. A 911call is a call for help. The call may be triggered by criminal activity but it may not be.

A person having a heart attack may call 911 forassistance but be unable to speak. Godoy confirms that the police have the duty, and thus the authority, to investigate all 911 calls. But Godoy also narrowly limits when the police can enter a person's home without a warrant in response to a 911 call. The policemust reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority islimited to ascertaining the reason for the call and providing any needed assistance.

They do not have any further authority to search thehome or intrude on a resident's privacy or property. (Emphasis mine). [56] Similarly, in R. v. MacDonald, supra at para 41, the Supreme Court of Canada emphasized the contextual nature of the analysisto decide whether the exercise of extraordinary police powers are authorized by law: But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled.

In my view,the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safetysearches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police.

Given the highprivacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonablegrounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see alsopara. 45).The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of thematter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified onthe basis of a vague concern for safety.

Rather, for a safety search to be lawful, the officer must act on "reasonable and specificinferences drawn from the known facts of the situation" (Mann, at para. 41). (Emphasis mine) [57] The extraordinary police power to enter a home to fulfill their duties to protect the lives and safety of the occupants is narrowlycircumscribed because of countervailing concerns regarding the protection of privacy interests in a dwelling house.

While there is acompelling public interest in ensuring that the police are not prevented from ensuring the safety and protection of members of ourcommunities, Court’s must also guard against unlawful intrusions by the State into the sanctity of our homes. To strike a balance, policeentry into a home without a warrant or informed consent is only authorized by exceptional circumstances that have been recognized bystatute or the common law as a prerequisite to intruding on such jealously guarded privacy interests.

As a result, the balancing of theseconflicting interests will depend on the unique circumstances of each case.

Justice Hill described these conflicting considerations in R. v.Wilhelm, supra, at para 114: The operational determination as to whether an exceptional intrusion by the police is reasonably necessary engages balance of theseconsiderations all in the context of the available information, the existence of any less intrusive alternative, and the strength of the policebelief relating to the exigency or danger said to justify an extraordinary intrusion and a necessitous departure from conventionalinvestigative measures.

Importantly, as noted in Godoy at para. 11, whether the police will be justified in a particular situation in enteringa private dwelling in the course of an investigation "depends on the circumstances of each case". The same point was made in Jones, atpara. 42: "not every 9-1-1 call engages issues of public protection...it remains to analyze each situation on its own facts". Entry toa dwelling is not justified in every case. No blanket institutional policy divorced from the factual context of the particular casecan become a surrogate for the assessment of specific factual circumstances. (Emphasis mine) ii.

The availability of less invasive investigative options and other considerations

[58] Counsel for Mr. Bursey-Young emphasized during the trial that the police did not speak to the witnesses on the scene beforeentering Mr. Bursey-Young’s home. I agree with the Crown that the police are not necessarily obliged to speak to witnesses at the sceneor the 911 caller before making the decision to enter a home to check on the well-being and safety of its occupants. For example, in R. v.Lowes, [2016] O.J.

No. 3552 at paras. 10 to 13, the Ontario Court of Appeal found that: The trial judge held that the police could not enter the residence without taking what he described as additional investigative steps. Hereferred to three. The trial judge indicated that the police could have further questioned Ms. Muller about the circumstances andpresumably about what had gone on in the apartment, or they could have further questioned the neighbour who made the 9-1-1 call, orthey could have applied for a telewarrant.

It is unclear whether he was referring to a telewarrant for the arrest of the person in theapartment, or to search the apartment. In our view, none of those steps were necessary or, indeed, even relevant to whether the police were under a duty to enter the premiseswhen they did to ensure that there was no one in the premises whose life or safety was in immediate danger and to ensure that Ms.Muller's life or safety was not in immediate danger should she choose to re-enter the residence. The circumstances in which the police found themselves strongly suggested that Ms.

Muller was the victim of ongoing domestic abusewhen they arrived at the residence. She clearly lied to the police when they first spoke to her. In these circumstances, the police wouldhave been derelict in their duty had they accepted what Ms. Muller said without going into the residence. Any further discussion with the neighbour would not in any way have detracted from the emergency situation faced by the police.Nothing the neighbour could possibly have said would have eliminated the immediate risk to the lives and safety of others, including Ms.Muller.

Finally, the delay inherent in obtaining a telewarrant, assuming the police could get one, created obvious and significant risksthat in these circumstances the police could not, in good conscience, take. [59] While the police are not obliged to speak to witnesses, they must consider whether there are less intrusive investigative stepsthat can be taken based on an assessment of the totality of the information that they have available to them.

In this case, the Officers didnot even appear to turn their minds to the possibly of less intrusive measures considering the true nature of the initial call to police. [60] Another point that was raised was that, when police are responding to a 911 call for assistance, they do not have to accept theassurances of the people on scene that nothing is wrong. Furthermore, conduct and behaviour like that exhibited by Mr. Bursey Youngcould make a distressing situation more acute and escalate police concerns for the safety of any potential victims. As the Ontario Courtof Appeal noted in R. v. Depace, [2014] O.J.

No. 3170 at para 8 (Ont.C.A.): The fact that the occupants denied entry to the police for 25 minutes made the 911 situation much more acute and suspicious. As theSupreme Court said in R. v. Godoy (SCC), [1999] 1 S.C.R. 311 at para. 20, in the context of a 911 emergency call, thepolice do not need to take the word of the occupant that everything is alright. They are entitled to satisfy themselves.

The extent of whatthey may need to do will depend on the particular circumstances. [61] It is also acknowledged that, depending on the nature of the 911 call, police are entitled to assume that the 911 caller is indistress and react accordingly. In R. v. Zarama, [2015] O.J. No. 6450, the Ontario Court of Appeal found that: In our view, the police officers were acting reasonably, and within the scope of their duties, in responding to a disconnected 911 call.Therefore, they were never trespassing. The officers were entitled to assume that the appellant, as the maker of the 911 call, was in distress.

They were also entitled to physicallylocate the appellant within the home so that they could determine her reasons for making the call and provide such assistance as might berequired. This is so despite the assurances of the appellants' parents that she was not in need of aid. Consequently, as the appellantrefused to leave her bedroom, the officers had the right to enter it because there was no other reasonable alternative for ensuring that shewould receive any needed assistance in a timely manner. See R. v. Godoy, [1999] 1 S.C.R. 311, , at paras. 16-18, 19. iii.

The Unique Circumstances of this Case [62] While the legal authority is clear that the police have these investigative powers and duties to protect the life and safety of thepublic and that they do not necessarily have to take further investigative steps in certain circumstances and that Mr. Bursey-Young’sabusive behaviour could have triggered escalating concerns, the Court must consider the unique circumstances of this case.

The choiceof the police to exercise these extraordinary powers should have been informed by the totality of the circumstances known to the policepreceding entering that home as opposed to blind adherence to an erroneous perception of the extent of their authority. There isabsolutely no evidence that the police reasonably believed that the lives, safety or well-being of the occupants of Mr. Bursey-Youngwere ever in any jeopardy at any point that morning. [63] The police received information from the Dispatcher that a third party related two spouses had a verbal argument.

They werebeing asked by that caller, who was not at the residence, to assist with picking up the female spouse (who was her sister) and her babybecause the male spouse may be angered by the caller’s attendance. This was not a distress call, it was a call seeking assistance withkeeping the peace. The Officers’ unilateral and baseless choice to define this report as a “domestic” call does not automatically engageconcerns that justify forcibly entering a person’s home. Just because they say it’s a domestic, does not make it one or presumptivelyrequire a safety search.

Moreover, the police did not even pause to consider the additional information that they had available to themwhen they arrived at the house. The person whose life and safety they were allegedly concerned with because of the supposed domesticnature of the call was standing outside the home when they got there. She was unharmed and not visibly distressed. She did not knowwhy police were at the residence again because, as far as they were aware, no one called the police. There were also two other calmunharmed witnesses on the porch to this home.

There was no apparent disturbance or yelling from within the residence or any reason tobelieve anyone else was inside the home since the 911 caller was not on scene when she contacted the police. [64] Despite readily apparent facts that should have assuaged any concerns for the lives and safety of the 911 caller and/or thedomestic partner, each Officer intractably maintained that they were lawfully entitled to forcibly enter a dwelling house to check on the

well-being and safety of the occupants whenever they received a “domestic” call without any explanation with respect to what factsqualified this call as a domestic. This was unquestionably a case that cried out for less intrusive investigative steps to find out what wasgoing on and to speak with the spouse, the other witnesses and/or await the arrival of the 911 caller. To use the Supreme Court’sdirective language in Godoy, “obviously such course of action is mandated” in these circumstances. [65] Sgt. Richardson and Cst.

Salisbury mistakenly believe that any reported disputes between spouses automatically triggers theability to forcibly enter a home regardless of what they saw or heard before or after they arrived on scene. This is a disturbing andunlawful systemic practice.

This misguided extension of the circumstances in which the police are lawfully authorized to exercise thisextraordinary power to intrude on the privacy of a person’s home was echoed in the Crown’s submissions to the Court. [66] Police do not have an unbridled power to forcibly enter a person’s home regardless of the unique circumstances presented witheach investigation just because they believe they are responding to a “domestic”.

It cannot be repeated often enough that a warrantlessentry into a home is narrowly circumscribed by the circumstances of each case and it is only justified in exceptional circumstances thatinvolves exigencies or necessity to protect life or the safety of a person(s). Justice Hill aptly stated in R. v. Wilhelm, supra: 141 Certainly, in some circumstances, the fact of a 9-1-1 call alone, or the domestic context of an emergency call, may suffice topermit warrantless entry of a dwelling. But, as accepted in Godoy, it is not every such 9-1-1 call which will make such exceptional policeaction reasonably necessary.

Everything is about context and the totality of information relating to the circumstances of each call - this isevidence-based justification not the use of the "domestic" label to apply routine institutional policy to overrun constitutionalrights. (Emphasis mine) And similarly 113 A police officer is expected to act reasonably in the circumstances: Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 58. An officer's conduct is governed by his or her evaluation of the totality of circumstances in aninvestigative situation.

Where, in fluid circumstances, new information comes forward, it too must be assessed, not ignored, at timesnecessitating a re-examination of the situation. An officer must of course act on articulable, objective facts and not on profilecharacteristics which risk "undermining a careful individual assessment of the totality of the circumstances": R. v.

Chehil, 2013 SCC 49,at para. 40. [67] Police witnesses inflexibly repeating a blanket police policy that they have the power to forcibly enter a dwelling house becausethey decided that a 911 call is a “domestic” without any consideration for the actual nature of the initial call or the surroundingcircumstances is patently unreasonable. It is particularly troubling in this case in light of the fact that none of the Officers checked theresidence after arresting the Defendant which belies their claims that they were concerned for the lives or safety of the occupants.

Therewere no grounds, beyond this oft-repeated police practice, to believe or even suspect that anyone inside Mr. Bursey-Young’s house wasinjured, in imminent need of assistance or protection or that exigent circumstances existed that would have justified trampling Mr.Bursey-Young’s privacy interests in his home. The actions of the police were neither objectively reasonable nor necessary. iv. Conclusion [68] It is incumbent on the Police to appreciate the limitations of their powers and the extent of their lawful authority.

Thispotentially unlawful standard police procedure should be denounced and further training and education encouraged to ensure that it doesnot continue and result in more unwarranted intrusions on the sanctity of individual homes. [69] Although Sgt Richardson and Cst. Salisbury may have been acting pursuant to the sincerely held belief that they were entitled toforcibly enter Mr. Bursey-Young’s home, they unquestionably exceeded their lawful authority and were not acting in the lawfulexecution of their duties. Accordingly, while Mr.

Bursey-Young’s provocative conduct and attitude towards the police was ill-advisedand abusive, in these circumstances, he was entitled to prevent the police from entering his home, to use reasonable force to remove themas trespassers and, concomitantly, entitled to resist an unlawful arrest. The Crown has not proven beyond a reasonable doubt an essentialelement of each of the offences before the Court. Mr. Bursey-Young will be acquitted of all four counts.