Her Majesty the Queen - v. -, 2021 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 55 Date: November 26, 2021 Information: 90195615 Location: Fort Qu’Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon Jeremy Poorman Appearing: Allie Derwin For the Crown Bruce Campbell For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused faced trial on five charges arising out of an incident on January 19, 2020 at Abernathy, Saskatchewan. The charges were: 1. assault Constable Martin Stregger, a peace officer, engaged in the execution of his duty contrary to Section 270(1) (

a) of the Criminal Code ;

2. assault Corporal Ryan Burns, a peace officer, engaged in the execution of his duty contrary to Section 270(1) (

a) of the Criminal Code ; 3. without lawful authority confine Constable Martin Stregger, contrary to Section 279(2) of the Criminal Code ; 4. disarm Corporal Ryan Burns, a peace officer engaged in the execution of his duty, of his Conducted Energy Weapon, contrary to

Section 270.1(1) of the Criminal Code ; and 5. resist Corporal Ryan Burns and Constable Martin Stregger, peace officers, in the execution of their duty, contrary to

Section 129 (

a) of the Criminal Code . [ 2 ] At the conclusion of the Crown’s case, the Crown entered a Stay with respect to Counts 1 and 5. Counsel for the accused made a motion for a nonsuit with respect to Count 3. I granted that nonsuit. What remains to be decided are two charges; Count 2, assaulting Corporal Burns in the execution of his duty and Count 4, disarming Corporal Burns of his conducted energy weapon. The defence argument is that the police officers exceeded their lawful powers, and thus were not acting in the execution of their duty.

As a result, the defence argues that the Crown has not proved this essential element of the offence, and the two remaining charges must be dismissed. [ 3 ] The Crown argues that the officers were acting in the lawful execution of their duty. Further, if the Court concludes that the officers exceeded their lawful powers, the accused should be convicted of common assault, as a lesser and included offence. THE EVIDENCE [ 4 ] The first witness called was Adam James Schreiver, who testified he has been with the RCMP for five years.

On January 19, 2020, he was with the Fort Qu’Appelle Detachment of the RCMP, and working in general duty. On that day, he responded to assist members at Abernathy, Saskatchewan. On arrival he apprehended the accused, Brandon Poorman. He also took a number of pictures of the house that the accused occupied. These pictures were entered as Exhibit P-1. They show some obvious damage to the kitchen area. There is a picture of a knife on the countertop.

Also in the kitchen area were some beer cans, a hammer and vodka bottle. [ 5 ] The constable advised that when he arrived, the accused had one hand cuffed to the back door. The accused was released and the witness took him into custody. [ 6 ] Under cross-examination, the witness advised that he received the call at about 4:00 a.m., and arrived at the scene at approximately 4:45 a.m. He was the last officer to arrive there. When he arrived, everything was under control. He took the accused into custody. He described the accused as moving back and forth from being cooperative to non-cooperative.

He stated that Marley Quewezance was aggressive. [ 7 ] The next witness was Corporal Ryan Burns. He is a corporal with the Fort Qu’Appelle Detachment of the RCMP. He has been in his present position for about two years. [ 8 ] On January 19, 2020, he was on duty in full uniform and a marked police vehicle. He and Constable Stregger “responded to a domestic”. Constable Stregger received the call from dispatch, and provided information to him. The corporal advised that he was told that there “was a 911 call regarding a domestic”. The individuals involved were the accused, Brandon Poorman and Marley Quewezance.

They were fighting and pushing. The complainant or caller was another individual, who had locked herself in a bedroom with her children. She advised she wanted the police to remove Mr. Poorman and Marley Quewezance from her residence. No information was given regarding any injuries. [ 9 ] The corporal advised that when they got to Abernathy, the complainant or caller advised that Brandon and Marley had left her house and had gone to their own house. Constable Stregger provided the address of the house they went to which was very close to the caller’s home. The officers approached that house.

The lights were on inside the house. He went to the front door, and Constable Stregger went to the back door. Corporal Burns noticed there were many items against or close to the door which would impede its opening. As a result, the corporal walked around the house to go to the back door. As he made his way to the back door, he could see Mr. Poorman, who was wearing his winter jacket, laying on a couch inside the house. He could hear Stregger knocking on the back door. Mr. Poorman got up from the couch and ran upstairs. Shortly thereafter, he and Marley came down toward the back door.

[ 10 ] When the corporal got to the back of the house, he saw Constable Stregger was standing on a raised deck at the back door. One could step out of the back door onto the deck. Three or four feet from the back door, the steps descended to the ground level. The landing and steps were snow and ice covered. When the corporal arrived, the back door was open, and the accused and Marley were in the doorway. Constable Stregger was standing on the landing. [ 11 ] The corporal advised that as the senior officer he took over the discussion with the accused and Ms. Quewezance.

He said he tried to explain why they were there. His feet were outside of the house and in front of the door jamb. He said the accused and Marley were not listening and were getting more aggressive. He thought they would slam the door, so he put his foot into the doorway to prevent the door from closing. He stated that he tried to explain why they were there, but both were yelling over him. They told him that he did not have a warrant and had no right in an Indigenous home. They made derogatory comments. He could smell liquor and indicated the two of them showed signs of intoxication.

He said he was unable to reason with them. He was trying to de-escalate the situation. The accused was standing in the doorway, pointing his finger at the police officer. The officer told him to quit pointing his finger at his face. This happened several times. [ 12 ] The officer stated he was giving directions to Constable Stregger. At that time, he noticed some dried blood on Marley’s Quewezance’s face. He concluded she had been assaulted. He stated things were escalating. The individuals became more aggressive. They were repeating themselves. They told him he was not allowed to be there, and insulted him.

He stated he did not want to walk away, as he was concerned for Marley’s safety. He was concerned about a continued assault, and that they may go back to the other house. He advised Mr. Poorman that he was under arrest for assault and grabbed the accused’s arm. Constable Stregger began to help. Mr. Poorman attempted to pull away back inside the house. This resulted in the corporal being pulled through the doorway into the inside of the house. He held on to the accused and tried to get hold of his other arm. [ 13 ] Corporal Burns said that just inside the house, he lost his footing and slipped down to the floor.

He was then seated on the floor with his back to the cupboards. The accused punched him in the head. The accused used a number of quick jabs. The corporal said he was able to grab his taser, get it out and turn it on. He pointed it at the accused. The accused backed off. The corporal said he told Mr. Poorman to stop and get on the ground. [ 14 ] The corporal said he then noticed that Marley was yelling and screaming and striking Constable Stregger. The corporal knew that his taser would not be effective on the accused. He believed that they had to secure one of them. He told Marley to stop fighting.

He then fired the taser into her back. She screamed, arched her back and swore. However, the taser did not achieve the desired result; it did not get a good connection so it did not incapacitate her. At that time, the accused, Mr. Poorman, grabbed the corporal and grabbed the taser. The accused swung the corporal around. The back door was still open. Mr. Poorman pushed Corporal Burns out of the back door. The corporal’s heels hit the door jamb. He fell backwards and down the stairs. Mr. Poorman then immediately slammed the back door shut and locked it. [ 15 ] The officer got up and went back to the door.

He yelled at the accused to open the door. He heard Constable Stregger yelling. He was concerned for Constable Stregger’s safety, so he used his baton to smash the window in the door. He tried to open the deadbolt, but it was jammed and would not budge. [ 16 ] The accused came to the back door and apparently put his arm through the opening. The officer was able to grab onto his arm, and held it outside the door. The officer hollered to Constable Stregger, telling him to get out of the house. Constable Stregger did leave the house, and ran around to the back door.

Constable Stregger helped Corporal Burns handcuff the accused’s one hand to the doorknob on the outside. [ 17 ] They then called dispatch and asked for quick help. It took about 30 minutes for backup to arrive. The weather was very cold that night, approximately -30 degrees, with a wind chill. When backup arrived, the accused and Marley were both arrested. [ 18 ] The corporal advised that he had a bruise on his jaw and neck area. He lost his voice and had a bad sore throat. He was in hospital for a few hours. [ 19 ] The corporal advised he is a Use of Force instructor at the RCMP Depot.

The witness advised that he is 5’10” tall, and weighs approximately 200 pounds. He stated that Constable Stregger is 5’7” or 5’8” and weighs approximately 140 pounds. He indicated the accused, Brandon Poorman was about 6 feet tall and approximately 240 pounds. He estimated Marley as being approximately 5’7’’ or 5’8” and perhaps 160 pounds.

[20] Under cross-examination, the witness was asked what he knew when they arrived. He stated they had a report of two peoplefighting and that Marcy (the Complainant) wanted them removed from her residence. He stated there were “no injuries or weapons”. Heindicated this is what he knew on arrival. Further, that he did not know who assaulted whom. He did know there were no injuries. Hestated he had no prior contact with either of these individuals. He did know they were from the Punnichy area.

He was unsure how hecame to know this, and speculated that Constable Stregger may have had this information. [21] He confirmed that before getting to the back door, he saw the accused lying on the couch. Further, that the accused onlybegan to move when Constable Stregger began knocking on the back door. The accused then went upstairs, and came back down withMarley. They opened the door for Constable Stregger just before the corporal got to the back door. [22] The corporal agreed with defence counsel that the accused and Marley clearly did not want the police there.

He said henoticed right away that she had blood on her face. [23] He said they became more aggressive, so he put his foot in the doorway, to prevent the door from being closed. He agreedwith defence counsel that they tried to close the door and he prevented them from doing so. He also agreed with defence counsel thatthey told him nothing happened and there was no problem there. He also agreed with defence counsel that he asked Constable Streggerto call back and get more details. He asked Stregger: “Who hit whom?”. He agreed that Constable Stregger got off the call, and thenstated he did not get that information.

Stregger then attempted to make another call to Marcy. [24] The corporal agreed they told him he could not come in and needed a warrant. He agreed he had no warrant. He did notagree, however, that he needed a Feeney Warrant to enter the house for arrest. (See R v Feeney, (SCC), [1997] 2 SCR13) He stated that he had exigent circumstances. He agreed with defence counsel that he entered the house with his foot withoutpermission. He also agreed with counsel that during this time the two of them were aggressive with police, not with each other.

Whenthe accused pointed his finger at his face, he grabbed the accused’s arm and advised the accused he was under arrest. He believed theaccused was only attempting to pull away and get inside the house, and in so doing pulled the officer inside. [25] He agreed that he again asked Stregger who assaulted whom and that Stregger did not know. Further, that his only knowledgewas that they were fighting. Lastly, he confirmed that when he pointed his taser at the accused, the accused backed off.

He then taseredMarley, and she screamed in pain. [26] Under re-examination, the officer stated that they tried to close the door, and he put his foot in the doorway to prevent that. He said he was fearful that they would close the door. He stated that he saw blood on Marley’s face, and believed she would be at risk ifthe door was shut. Further that he believed an offence had occurred, and that another offence might occur. [27] The last witness called was Constable Martin Stregger. He advised he has been with the RCMP for two years commencing inMay of 2019.

On January 19, 2020, he received a call from dispatch at around 3:00 a.m. advising of a domestic at a residence inAbernathy. Further information was provided that a couple was fighting, throwing each other around. “No injuries.” “Alcoholinvolved.” It was unknown if any weapons were involved. [28] The constable advised that he was in full uniform and a marked police vehicle. He spoke to Corporal Burns, who went withhim. The two of them left for Abernathy. While on the way, he received another call.

He was advised that the caller had called againand advised that both individuals had left the residence. [29] Constable Stregger stated the caller advised that the two had gone to the house next door, where they were “Housesitting”. (Idid not concern myself with the legal arrangement for Poorman and Quewezance to be at this home. Regardless of the arrangement,they had legal authority to be there and treat the home as their dwelling house.) On arrival, the officers followed the footprints in thesnow to 114 Lorlie Street. The constable advised that he went to the back door, and Corporal Burns to the front door.

The constableknocked at the back door. There was no answer. He continued to knock. Then Corporal Burns advised people were inside the house. The constable stated that he knocked some more and called: “Police.” He heard people coming to the door, and Corporal Burns advisedpeople were coming. Both Marley and the accused opened the back door. Both appeared intoxicated. They had the usual indicia. Hestated he did not recall their demeanor or conversation. He did recall that they were aggressive.

They stated they were trying to sleepand asked why he was knocking. [30] Corporal Burns arrived very shortly after the door was opened. The corporal advised of a call that two people were fighting.

They said no one was fighting. [ 31 ] The constable stated that Corporal Burns asked him to call the complainant requesting details. He did make a call to her. However, he did not ask who was fighting. Burns then asked him to call again. He did try calling the complainant again, but the call could not be completed. At this time, the accused put his hands toward Corporal Burns. The constable clearly stated that Corporal Burns advised the accused he was under arrest for assaulting a peace officer. Constable Stregger said he thought that the accused was going to punch Corporal Burns.

He said both officers were trying to grab the accused’s hands to prevent him from punching. The accused was right in the doorway, and his hand was outside. They were trying to pull the accused outside, but they were pulled into the house. [ 32 ] The constable stated he told Marley that the accused was under arrest. She then pushed him. He advised that she was under arrest. [ 33 ] The constable stated that the door was open until Burns was thrown out. [ 34 ] He stated that as he was attempting to arrest Marley, she came toward him. He then heard a crash, and noticed that Corporal Burns was on the floor.

The accused was punching him in the face. Then Corporal Burns was able to get his taser out. The red dot was on the accused’s chest. The accused backed off. Marley then began punching the witness. He was defending himself from Marley. Burns told her to stop and tasered her. She laughed and said it did not work. [ 35 ] Constable Stregger said the accused then came and pulled Marley off him. The constable was released and was alone with the two of them. He heard Burns trying to open the back door. Burns was yelling. Constable Stregger said he got out his taser and gave commands to Marley.

He heard the smashing of the window at the back door. Burns told Constable Stregger to get out. Stregger noticed that the accused’s arm was out the window and being held by Burns. Constable Stregger indicated that he backed down the hallway to the front door, unlocked that door and got out. He ran around to the back door to Burns. [ 36 ] Corporal Burns had the accused’s arm out of the window and was holding it. Corporal Burns asked Constable Stregger to cuff the accused’s arm to the doorknob and Constable Stregger did that. Corporal Burns advised that he had hit the “Help me quick” button.

Help arrived at around 4:30 a.m. Later, the constable escorted Marley to the police vehicle. [ 37 ] The constable stated that he had no prior contact with either Brandon or Marley. He stated that he was 5’7” tall and weighed 150 to 160 pounds. He estimated Burns at 5’9” tall and weighing 180 to 190 pounds. He estimated the accused at 6’ to 6’1” and 200 pounds, and Marley at 5’8” and 180 pounds. [ 38 ] Under cross-examination, he said Marley and the accused came to the back door and asked “What do you want?” He advised they had a report of two people fighting. They gave him their names.

Then Corporal Burns arrived and took over. The constable did not recall if the accused and Marley said you need a warrant, or if they tried to close the door. He did agree however, that they said they were not fighting. He also agreed that the original caller or complainant was just a few feet away at the house next door. He also agreed that he did not ask for more information regarding the assault. He agreed that he did not ask who assaulted whom. He stated that he believed that Corporal Burns indicated that the arrest was for assault peace officer, not assault on Marley.

The witness agreed that the accused never assaulted him. [ 39 ] The Crown then closed its case. The defence called no evidence. ANALYSIS The Law Related to Charges of Assaulting a Peace Officer [ 40 ] The two charges remaining for my determination are assaulting a peace officer “engaged in the execution of his duty” and disarming a peace officer “engaged in the execution of his duty, of his conducted energy weapon”. Both of the provisions in the Criminal Code creating these offences refer to an officer engaged in the execution of his duty.

It is an essential element of the offence and the Crown must prove the officer was in the execution of his duty. If the Crown fails to prove this element, the charge must be

dismissed. [41] In the case of R v Custer (1984), (SK CA), 32 Sask R 287 [Custer], the accused was charged withobstructing a peace officer by refusing to allow the peace officer to enter his home to see a stabbing victim. At paragraph 13, ChiefJustice Bayda defined the issue as follows: The question in the present case, then, may be reduced to whether the attempted forcible entry by Constable Haughn into the defendant’sprivate home against his will falls within any of the exceptions (to the principle) that are recognized by the law.

If the entry falls withinan exception, Constable Haughn was acting within the limits of his authority and thus in the execution of his duty; and the chargeaccordingly will stand. If the forcible entry does not fall within an exception, he was acting outside of the limits of his authority and thusnot in the execution of his duty; that, in turn, will result in the failure to establish an essential ingredient of the charge necessitating itsdismissal.

At paragraph 30, the Chief Justice concluded: Constable Haughn was acting outside his lawful authority and thus not engaged in the execution of his duty when he attempted a forcibleentry of the defendant’s house. [42] In R v Zargar, 2014 ONSC 1415 [Zargar], the police were investigating a possible offence of mischief by playing loudmusic. The police officer stepped through the doorway into the accused’s condominium unit, and then was pushed out the doorway bythe accused. He was arrested for assaulting a peace officer “in the execution of his duty”. [43] Mr.

Justice Code reviewed the common law and jurisprudence in this area and made some interesting general statements ofprinciple. For example, at paragraph 19: The answer to this question turns on the longstanding common law precept concerning the “sanctity of the home”. Then quoting from R v Colet (1981), (SCC), 57 CCC (2d) 105 (SCC): …what is involved here is the long-standing right of a citizen of this country to the control and enjoyment of his own property, includingthe right to determine who shall and who shall not be permitted to invade it.

Further: …it would, in my view, be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his ownproperty are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement ofany

section of the Criminal Code although they are not armed with express authority to justify their action. [44] At paragraph 20, Mr. Justice Code quoted from R v Thomas (1993), (SCC), 78 CCC (3d) 575 (SCC): The police must, therefore, rely entirely upon a valid and unrevoked invitation to enter and remain in the house. The law is quite clear onthis and there is no need to refer to many cases.

Unless authorized by statute or the common law, a police officer may not enter thepremises of another without the other’s permission and must leave if and when that permission is revoked. [45] It is significant to note that Mr. Justice Code quoted and relied upon Custer. He went on to reach the following conclusion inZargar: Applying the above principles to the case at bar, the inescapable conclusion is that P.C. Mota had no lawful authority to enter theAppellant’s condominium unit. He lacked consent from the Appellant, indeed the Appellant made it clear that he wanted P.C. Mota to

leave. In addition, P.C. Mota could not bring himself within any of the exceptions to the “sanctity of the home” principle: there was no“hot pursuit”; there was no purpose relating to the prevention of serious injury or protecting life and safety; there was no warrant to arrestand no warrant to search; and there were no “exigent circumstances” such as imminent bodily harm or death or loss of evidence. P.C.Mota was simply pursuing a mischief investigation as a result of a noise complaint. In these circumstances, the authorities are clear thatP.C. Mota was a trespasser and the Crown could not prove that he was acting “in the execution of his duty”. [46] I conclude that in prosecutions under

section 270 of the Criminal Code, the Crown must prove, as an essential element of theoffence, that the peace officer was acting in the execution of his duty. If it is established that the peace officer exceeded his lawfulauthority, he then was not acting in the execution of his duty, and the Crown has not proved the charge. [47] In the present case, as I understand the situation, the Crown advances two arguments that the police officer was actinglawfully and in the execution of his duty.

Firstly, the argument is made that there were exigent circumstances justifying his entrance intothe accused’s home and the arrest of the accused. Secondly, that the officer had reasonable grounds to believe the accused hadcommitted the indictable offence of assault, and was justified in arresting the accused without warrant. Were there exigent circumstances justifying Corporal Burns to enter the accused’s home? [48] The leading case on this issue is R v Godoy, (SCC), [1999] 1 SCR 311 [Godoy]. In that case, the policereceived a 911 call. The call was terminated before the caller could say anything.

Police were dispatched to the residence. The accusedanswered and partially opened the door. He was asked if everything was all right and he responded, “Sure, there is no problem.” Thepolice asked if they could enter and investigate at which time the accused attempted to close the door. The officer put his foot in thedoorway, preventing the door from closing and they entered the dwelling. As soon as they entered, they heard a woman crying. Theyfound the accused’s common law wife in the bedroom, curled in a fetal position and sobbing. They observed some injuries. She statedthat the accused had hit her.

The accused was then arrested and charged with assault. [49] The Supreme Court of Canada stated that the police have a common law and statutory duty to protect life. That common lawand statutory duty may justify some interference with an accused’s right as a home owner or Charter rights.

The Court stated in part: [18] …the justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to whichsome interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty tothe public good, the liberty interfered with, and the nature and extent of the interference. The Court concluded: [22] The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons formaking the call and provide such assistance as may be required.

The police authority for being on private property in response to a 911call 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, LeDain 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 course of action is mandated.

Each case will beconsidered in its own context, keeping in mind all of the surrounding circumstances. [50] I begin by noting that a number of decisions since Godoy have been fairly restrictive in their

interpretation and application ofGodoy to other fact situations. See for example Zargar, R v Davidson, 2017 ONCA 257 [Davidson] and R v Irving, 2018 ONCJ 270. The rationale in these decisions seems to be that the law has long respected “the sanctity of the home” and the right of the citizen tocontrol and enjoyment of his own property. The home owner or person lawfully in control of the home has a high degree of privacywithin it.

As a result, the courts will not quickly or easily set aside these rights associated with a dwelling house, and allow invasion ofthat dwelling house by police or other authorities. [51] For a number of reasons, that I will attempt to set forth, I have concluded that the Godoy decision is not applicable to the caseat bar, and cannot be used to justify an entry or invasion into Mr. Poorman’s home.

[ 52 ] I begin with the call made to the police. In Godoy , the 911 emergency call came from the accused’s apartment, supposedly requesting emergency assistance, and the call was terminated before they could receive any information. Police believed the caller could be inside that apartment. In the case at bar, the call came from the neighbour’s house. The call was not made by either Mr. Poorman or Ms. Quewezance. According to the police evidence, the couple was fighting, and the caller wanted them removed from her home.

In my view, one or two phone calls from a third party would have to include significant information about a serious situation to justify the forced entrance into a home. [ 53 ] In the case at bar, it appears to me that by the time the police arrived, whatever emergency may have existed was terminated or at an end. The caller indicated to the police that she wanted the couple removed, and they were in fact gone from her residence.

In the Davidson case, the Court concluded that by the time the police arrived, there were no exigent circumstances present, and the police could not then justify invasion of a personal home for further investigation. [ 54 ] In Godoy , the police were not able to speak with the victim. They had to enter the home to speak with her and ensure she was safe. In the case at bar, the police did not need to enter the home to speak with the supposed victim, Marley Quewezance. In fact, Marley was at the doorway with Mr. Poorman. She joined with Mr.

Poorman in stating that there was no problem and no danger. [ 55 ] In R v Timmons , 2011 NSCA 39 , 275 CCC (3d) 59 the Court placed considerable emphasis upon the alternatives that were available to the police, as opposed to the warrantless entry of the home. In the case at bar, there were a number of available alternatives to the police as opposed to a forced and warrantless entry. They could have consulted with the neighbour who made the call, and ascertained whether there was concern. They were able to speak with Ms. Quewezance at the home.

If they were concerned that she was restricted from speaking freely, they could have asked her to step out to speak to them privately. They could also have deferred their investigation and come back the next day. When they went to Mr. Poorman’s home, they did not know that any offence had been committed. They went to Mr. Poorman’s home at approximately 3-3:30 am. to conduct an investigation of Mr. Poorman and Ms. Quewezance. There was no need to investigate, at that precise moment, and no right to force their way into Mr. Poorman’s home.

Because of these various options, there were no exigent circumstances here and the warrantless entry was not justified. [ 56 ] Last, but certainly not least, in Godoy , the Court held that the exigent circumstances justified the police entering the home to ascertain whether the caller was in danger and in need of assistance. After the police did that, and upon their investigation, they ascertained there were grounds for arrest of the accused, and they made that arrest. The exigent circumstances did not, in and of themselves, create grounds for arrest.

In the case at bar, the police did not have any exigent circumstances to enter the home and conduct an investigation. They simply made an arrest. The Godoy decision did not authorize that course of action. [ 57 ] For all of these reasons, I conclude that Godoy is very distinguishable. The legal principles enunciated in that case do not authorize or justify the police entrance into Mr. Poorman’s home. I now turn to the question of whether Corporal Burns had a lawful basis to arrest Mr. Poorman.

Did Corporal Burns have lawful basis to arrest the accused, Brandon Poorman? [ 58 ] On all of the evidence, I conclude that the accused, Brandon Poorman, was standing inside the home, at which time he and Ms. Quewezance made it very clear they did not want any police assistance, and in fact wanted the police to leave. He attempted to close the door. At that time, Corporal Burns placed his foot on the door jamb, in the way of the door, and prevented the door from closing. In so doing, he was in breach of the implied licence to knock; he unlawfully entered the accused’s home, and became a trespasser.

See Zargar , supra , and the authorities cited therein. [ 59 ] During cross-examination, defence counsel suggested to Corporal Burns that he needed a warrant to enter the accused’s home and place him under arrest. The officer disagreed with counsel. The officer said “he had exigent circumstances”. As mentioned above, exigent circumstances, could not, in and of themselves, create a basis for arrest. The first question that must be answered is whether the officer had a legal basis to arrest the accused without warrant.

If he did, the power to arrest without warrant, and the exigent circumstances, might justify the officer entering the accused’s home to effect the arrest. However, if there was no lawful power to arrest without warrant, the arrest is not justified with or without the existence of exigent circumstances.

[60] Section 495(1) of the Criminal Code reads as follows: 1. A peace officer may arrest without warrant (

a) a person, who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or … (Subsection (

c) has no application in that it speaks of a peace officer arresting on the basis of reasonable grounds to believe that a warranthas been issued.) Subsection 1(

b) has no application in that when the police officers knocked at and the accused opened the door, he wasnot committing any criminal offence. So the question in this case becomes whether Corporal Burns had reasonable grounds to believethat the accused had committed or was about to commit an indictable offence. [61] In R v Kahnapace, 2020 SKPC 9, I also dealt with the issue of whether the police officer had reasonable and probable groundsto effect an arrest.

At paragraphs 36 to 38 of that decision, I quoted at length from the Saskatchewan Court of Appeal decision in R vShinkewski, 2012 SKCA 63, 399 Sask R 11 and attempted to sum up the principles of law in this area. I set forth these paragraphs fromKahnapace, including the quotation from the Shinkewski case: [36] During the past decade, the Saskatchewan Court of Appeal has reviewed what constitutes reasonable grounds and whatconstitutes reasonable and probable grounds on a number of occasions.

I have examined the following decisions: R v Gunn, 2012SKCA 80, 399 Sask R 170; R v Shinkewski, 2012 SKCA 63, 399 Sask R 11 [Shinkewski], R v McMahon, 2018 SKCA 26, 361 CCC (3d)429 [McMahon]; R v Todd, 2019 SKCA 36; R v Pavlik, 2019 SKCA 107 [Pavlik]; R v Smith, 2019 SKCA 126; and R v Chapman, 2020SKCA 11. The issue of reasonable grounds or reasonable and probable grounds arises in various contexts. For example, it arises inreasonable grounds for a peace officer to demand the driver of a vehicle provide a sample of breath or blood.

Also, there is the questionof reasonable grounds to believe a criminal offence has been committed or to swear a criminal information. There is also the issue ofreasonable grounds for the issuance of a search warrant, or reasonable grounds for search without warrant. There is also the relatedissue of whether a peace officer is reasonably relying upon certain facts or tips before taking certain actions. Some aspects or principlesseem to be common throughout the various contexts or usages. However, there are also some differences.

In Shinkewski, at paragraph13, the Court attempted to set out a number of the principles in

summary form. It stated: [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not proposeto review it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objectivepoint of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, butmay disregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timinginvolved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para.18; and, context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19 [37] In these cases, the courts have placed a particular emphasis upon the facts or factors known to the police officer at the timethe officer made the relevant decision. They have stated that the police officer must, in court, be able to articulate the facts or factors thathe relied upon.

He must subjectively believe those facts to be true, and a reasonable person placed in the position of the officer must beable to conclude the officer’s belief was reasonable. [38] The circumstantial or factual context in which the police officer made the decision will also be important to the reviewingcourt in determining whether the decision was reasonable. This factor is particularly important to the case at bar. The courts have made

it clear that a police officer’s reliance upon certain facts to obtain a search warrant will be more rigorously examined than will the factssupporting a snap decision for arrest. Simply stated, the courts recognize that an officer’s snap decision to effect an arrest withoutwarrant cannot be the same kind of considered and reasoned decision as preparing an affidavit to obtain a search warrant. [62] I begin by looking at what the officers knew when they approached Mr. Poorman’s house, and what they learned beforeattempting to effect an arrest.

Before arrival in Abernathy, they knew that the caller advised that two people were fighting in her houseand she wanted them removed. They also knew the two people had left the caller’s home, and gone to their home just a few feet away. On arrival at the home, by looking in the window, Corporal Burns learned that Mr. Poorman was laying on a couch, and Ms.Quewezance was nowhere to be seen. At the back door, they were able to see and meet with both parties. They learned that both hadbeen drinking and were somewhat intoxicated.

The officers were advised by both that there was no problem, and no reason for thepolice to be there. The officers learned that they were not wanted, and in fact, both individuals wanted the officers to leave. I mentionthis only to say that the couple’s negative reaction to the police was irrelevant to the reasonable and probable grounds issue. CorporalBurns stated in his evidence that the two were intoxicated and uncooperative, asking them to leave, and becoming more aggressive. Heseemed to suggest that this added to his reasonable grounds and gave him reasonable grounds for arrest.

In my view, it could do nothingof the sort. They were entitled to defend their home and personal space and ask him to leave. By exercising their rights they did not givehim any grounds for arrest. [63] The two of them clearly stated that there was no problem and no reason for the police to be there. Corporal Burns clearlydisbelieved that. He was entitled to disbelieve what they were saying to him. But in my view, his disbelief did not create any reasonablegrounds, if those reasonable grounds were not in existence prior to that. [64] So what Corporal Burns knew was that these two had been fighting.

He learned, and said he saw a small amount of driedblood near the mouth of Marley Quewezance. He knew nothing more. In my view, that simply was not sufficient to give the officerreasonable and probable grounds to effect an arrest. It was nothing more than “a hunch”. [65] It is clear from the authorities that there is both a subjective and objective component to the reasonable grounds test. Theofficer must himself believe he has reasonable grounds. I would conclude that Corporal Burns did not, himself, truly hold that belief.

The officers both testified that while at the doorstep, Corporal Burns asked Constable Stregger to phone the 911 caller and ask “Who hitwhom?” Constable Stregger attempted to make that call, but did not ascertain the information before Corporal Burns announced he wasarresting Mr. Poorman. Why did Corporal Burns want this information from the 911 caller? I would conclude he wanted thisinformation because he realized that knowing only that two people were fighting, did not give reasonable grounds to believe that anyonehad assaulted another person. [66] In addition, the objective grounds are not met.

A reasonable person placed in the position of Corporal Burns would notconclude that there were reasonable grounds to believe the accused had committed an assault upon Marley Quewezance. It is veryinteresting to note that Constable Stregger testified that Corporal Burns placed Mr. Poorman under arrest for assaulting a peace officer,Corporal Burns.

It certainly was not obvious to Constable Stregger that the accused had assaulted Marley Quewezance, or that CorporalBurns had grounds to effect that arrest, or even that Burns had in fact arrested the accused for assaulting Marley Quewezance. [67] I conclude that Corporal Burns knew only that these two had been fighting. In addition, he knew that he saw some driedblood near her mouth. This was clearly insufficient to determine that the accused probably committed the offence of assault on MarleyQuewezance. He did not have reasonable grounds for arrest.

He had nothing more than a suspicion or hunch, which was insufficient. Because Corporal Burns did not have reasonable grounds for an arrest, his attempted arrest was unlawful, and he was not acting in theexecution of his duty. Can the accused be convicted of a lesser included offence of common assault? [68] In additional arguments, Crown Counsel argued common assault is a lesser and included offence of assaulting a peace officerand of disarming a peace officer. She argued that unless the accused was legitimately acting in self-defense, he could be convicted ofcommon assault.

In making this argument, she cited R v Plamondon (1997), (BC CA), 121 CCC (3d) 314 (BCCA)and R v Allen, 2015 ONSC 2594.

[ 69 ] I do not believe common assault is a lesser and included offence of disarming a police officer. If it is, I would find that Corporal Burns shot Marley Quewezance in the back with the taser. Immediately thereafter, the accused disarmed Corporal Burns of the taser. In my view, that was reasonable action in defense of a third person, and I would find the accused not guilty of any common assault. [ 70 ] I accept the statement of law that common assault is a lesser and included offence of assaulting a peace officer. The evidence was that the accused punched Corporal Burns more than once.

However, I would conclude that Mr. Poorman acted in self defence and used no more force than was reasonable. Corporal Burns invaded the accused’s home in the early morning hours of January 19, 2020; assaulted Mr. Poorman and attempted to falsely arrest him. In R v Docherty , 2012 ONCA 784 the Court referred to the long line of authorities that an accused is not required to retreat and give up his home to an adversary. The officers were armed. The accused was unarmed and did not resort to the use of any weapon. He had only his hands to defend himself.

Given all of these circumstances, I believe the accused used no more force than was reasonable, and acted in self defence. I find him not guilty of all charges. Dated at the City of Regina, the Province of Saskatchewan this 26th day of November 2021. _______________________ Kovatch, J