R. v. Alexson (T.L.), 2014 MBCA 20

Citation: R. v. Alexson (T.L.), 2014 MBCA 20 Date: 20140211 Docket: AR 13-30-08020 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Applicant (Appellant) Applicant ) ) No appearance - and - ) for the Respondent ) TERENCE LEE ALEXSON ) Chambers motion heard: ) January 23, 2014 (Accused) (Respondent) Respondent ) ) Decision pronounced: ) February 11, 2014 MICHEL A. MONNIN J.A. [ 1 ] The Crown seeks leave to appeal a decision of a judge of the Court of Queen’s Bench, sitting as a

summary conviction appeal judge (the appeal judge) , affirming the respondent’s acquittal from a charge of assaulting a police officer. [ 2 ] The respondent, although duly served and aware of the fact that the matter would proceed in his absence, failed to attend. [ 3 ] At trial, it was conceded by the Crown that The Intoxicated Persons Detention Act , C.C.S.M., c. I90 (the IPDA ) did not apply, as the incident occurred inside a residence. The trial judge held that the police had acted outside their authority in removing the respondent from a house.

However, the Crown argued that the police officers were acting in the scope of their authority by removing the accused from the home in order to prevent a possible offence. [ 4 ] The trial judge, however, did not accept that argument. He said: What Mr. Alexson did after that time is, is foolish at best but, with respect, I don’t know that I can say that it was criminal in the sense that it has not been established in my mind that the officers were acting lawfully in the execution of their duty at that time. So I clearly say that the Intoxicated Persons Detention Act did not apply.

I don’t have evidence before me that would lead me to the conclusion that there was about to be an indictable offence occur[ring] and I bear in mind that assault is an indictable offence in, in, as a matter of law. I don’t know whether there was a breach of the peace about to occur.

What I do know is that it seems clear that more could have been done, even in a period of several seconds after that time, to calm the situation down and then make the decision as to whether or not something further should have occurred. [ 5 ] In dismissing the Crown’s appeal from the acquittal, the appeal judge stated (at paras. 28, 30-32): However, the basis for his decision, as I read it, was simply that the trial judge was not satisfied that when the officers placed the accused under arrest, reasonable and probable grounds existed to believe that an offence was about to be committed, or breach of the peace was about to occur.

The trial judge obviously did not find that the accused’s swearing, standing with his fists clenched, and his movement towards Ms. Hotmani presented an imminent and substantial threat of some act of violence. His observation about the accused’s very small stature, and the presence of the two officers, one of whom he described as a very large man who left the impression

he was extraordinarily strong, offers some insight into the lack of risk of harm the trial judge felt the accused posed. As noted in Rabesca [[1998] N.W.T.J. No. 152 (QL)], all of the circumstances leading up to the arrest should be taken into accountwhen deciding whether reasonable and probable grounds for arrest existed. The trial judge did this. He made findings of fact which ledhim to a conclusion in law. I disagree that he ignored the evidence of Officer Schimnowski. Rather, I conclude that he disagreed that theofficer was entitled to arrest the accused given the circumstances.

Finally, although the trial judge did not say so, implied in the fact that the he acquitted the accused - as opposed to finding him guilty ofthe included offence of assault - is that the arrest was unlawful and thus amounted to an assault in law. A person is justified in usingreasonable force to defend himself against an assault. In my view, the trial judge made findings of fact he was entitled to make given the evidence before him. He applied the correctprinciples in assessing those facts. He did not commit any errors in law.

For these reasons, the appeal is dismissed. [6] The Crown now seeks leave to appeal on the following two questions of law: 1.

Did the [appeal] Judge err in holding that the police were not lawfully acting in the exercise of their duty when they attempted toremove the Respondent from the residence? 2. … [D]id the [appeal] Judge err in holding that police lacked reasonable and probable grounds to believe an offence or breach of thepeace was likely if they did not intervene? [7] In order to be successful on its application, the Crown must demonstrate that the issue or issues it wishes to raise arequestions of law alone, that it has an arguable case of substance, and that the issue or issues are of sufficient importance to merit reviewby this court.

See R. v. R.W.M., 2011 MBCA 74, 270 Man.R. (2d) 29; and R. v. McCorriston (G.J.), 2010 MBCA 3, 251 Man.R. (2d)106. [8] I am satisfied that the issues raised meet the third criterion; namely, that the matter is of sufficient importance to meritthe attention of this court. The case raises important issues touching on the ability of police to respond to volatile and difficult domesticsituations. It is important that police be aware of the extent of their authority and what steps, if any, they can take in their intervention.

Furthermore, it is important that police know how to respond in cases such as this one and that any misunderstandings as to whatconstitutes the lawful exercise of their authority be laid to rest. [9] In my view, the real issues in this case is whether the questions the Crown seeks to have answered are questions oflaw alone and not questions of mixed fact and law, and whether it has an arguable case. [10] In arguing that the issue of reasonable and probable grounds to believe that an offence or a breach of the peace waslikely, the Crown relies on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527.

In that case, McLachlin C.J.C. and Charron J., writing forthe court, stated (at para. 20): While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge,the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As withany issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at firstblush as though the issue of reasonable and probable grounds is a question of fact.

However, this Court has repeatedly affirmed that theapplication of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the

summary conviction appeal judge erred infailing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, toconstitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimateruling is subject to review for correctness. [11] In coming to the conclusion that she did, the appeal judge relied on Brown v.

Durham Regional Police Force (1998), (ON CA), 43 O.R. (3d) 223 (C.A.), where Doherty J.A. wrote (at pp. 248-49): A breach of the peace does not include any and all conduct which right-thinking members of the community would regard as offensive,disturbing, or even vaguely threatening. A breach of the peace contemplates

an act or actions which result in actual or threatened harm

to someone. Actions which amount to a breach of the peace may or may not be unlawful standing alone. Thus, in Percy v. D.P.P.,[1995] 3 All E.R. 124 at p. 131 (Q.B.), Collins J. observed: The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequencewould, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established. Two features of the common law power to arrest or detain to prevent an apprehended breach of the peace merit emphasis.

Theapprehended breach must be imminent and the risk that the breach will occur must be substantial. The mere possibility of someunspecified breach at some unknown point in time will not suffice. These features of the power to arrest or detain to avoid a breach ofthe peace place that power on the same footing as the statutory power to arrest in anticipation of the commission of an indictableoffence. That is not to say that the two powers are coextensive.

Many indictable offences do not involve a breach of the peace and, asindicated above, conduct resulting in an apprehended breach of the peace need not involve the commission of any offence. Both powersare, however, rooted in the recognition that intervention is needed to avoid the harm which is likely to flow in the immediate future if nointervention is made. To properly invoke either power, the police officer must have reasonable grounds for believing that the anticipatedconduct, be it a breach of the peace or the commission of an indictable offence, will likely occur if the person is not detained.

Neither the power to arrest in anticipation of the commission of an indictable offence nor the power to arrest for an apprehended breachof the peace is meant as a mechanism whereby the police can control and monitor on an ongoing basis the comings and goings of thosethey regard as dangerous and prone to criminal activity. [12] The Crown argues that the appeal judge should have followed the reasoning in R. v. Sanderson (2003), (ON CA), 64 O.R. (3d) 257 (C.A.), a case which it provided to the appeal judge as well as to me. Sanderson is a case wherepolice responded to a 911 call from a distraught woman.

When they met her, the woman said that her boyfriend had assaulted her andmade threats concerning her dog and her personal property. She informed the police that she had been living at her boyfriend’s houseand that she had moved in some furniture and other personal belongings.

She was very emotional and adamant about returning to theboyfriend’s house to retrieve her belongings. [13] When police attended at the boyfriend’s residence with the woman to retrieve her belongings, the boyfriend refusedthem access to her bedroom, an altercation ensued and the boyfriend was charged with obstruction of a police officer along with othercharges. [14] At trial, the boyfriend was acquitted of the obstruction charge although he was found guilty of some of the othercharges. The Crown appealed the acquittal. The

summary conviction appeal judge dismissed the appeal, concluding that the police“should have exercised better judgment in this matter, there being no ongoing or continuing exigent circumstances following their lawfulentry” (at para. 6). [15] The Crown, as in this case, sought leave to appeal. MacPherson J.A. phrased the issue before the court as follows (atpara. 7): The Crown appeals again.

The appeal raises important issues relating to the authority of police officers to enter, and take actions inside,a dwelling house pursuant to their common law and statutory duties to preserve the peace and protect property. [16] In dealing with the police right to enter the boyfriend’s residence and the issue of a policeman’s authority to dischargehis common law duty, the judge stated (at paras. 25-33) In my view, the police officers had the authority to enter the home in order to discharge their common law and statutory duties topreserve the peace and protect property.

The powers and duties of a peace officer emanate from common law and statute. The general duty of a peace officer is to preserve thepeace as it relates to the protection of life and property: see R. v. Stenning, (SCC), [1970] S.C.R. 631, 10 D.L.R. (3d)224 and Dedman v. R., (SCC), [1985] 2 S.C.R. 2, 20 D.L.R. (4th) 321. In Ontario, these common law duties have beencodified in s. 42(1) and (3) of the Police Services Act, R.S.O. 1990, c. P.15. In R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, the Supreme Court of Canada enunciated the generalrule that warrantless arrests in private dwellings are prohibited by the Canadian Charter of Rights and Freedoms.

In R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, 168 D.L.R. (4th) 257, the Supreme Court of Canada held that the commonlaw and statutory duties of police officers may, in some circumstances, empower them to enter a dwelling without a warrant. Lamer C.J.C. stated explicitly that Feeney applied only to arrest situations (p. 326 S.C.R.): I emphasize that Feeney was concerned solely with when the police can enter a dwelling without a warrant to make an arrest. Thus, inmy view, the reasoning in Feeney does not apply to the case at bar, which is unconcerned with powers of arrest.

Lamer C.J.C. was of the view that the question of police entry into a dwelling house for investigatory purposes needed to be determined“on the circumstances of each case” (at p. 318 S.C.R.) and in accordance with the general principles for evaluating the common lawpowers and duties of police officers as set out in the leading English case, R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164(C.C.A.). Lamer C.J.C. said, at pp. 318-19 All E.R.: The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed by this Courtin R. v.

Stenning …, Knowlton v. The Queen, (SCC), [1974] S.C.R. 443, and Dedman v. The Queen …). If policeconduct constitutes a prima facie interference with a person’s liberty or property, the court must consider two questions: first, does theconduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeitwithin the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. In Dedman, supra, and in R. v.

Simpson (1993), (ON CA), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A.), the SupremeCourt of Canada and this court provided guidance in applying the Waterfield analysis to the Canadian context. In Dedman, LeDain J. said that, in order for a police power to be justifiable in a given context, “[t]he interference with liberty must benecessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interferedwith and the importance of the public purpose served by the interference” (at p. 35 S.C.R.).

In Simpson, Doherty J.A. stated, at p. 199-200 O.R., p. 499 C.C.C.: [T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which someinterference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to thepublic good, the liberty interfered with, and the nature and extent of the interference.

In my view, the police officers’ entry into the respondent’s residence complied with the general Waterfield test and with the overlay offactors for applying it in the Canadian context as articulated in Dedman and Simpson. The officers were faced with a distraught womanin the middle of the night. She, and an independent witness, reported that she had been assaulted by the respondent. She had left theresidence in only her pyjamas and without footwear – on March 29.

The altercation continued, and another assault took place, when thecomplainant returned to the house with Farrell to retrieve her dog and personal belongings. After she left a second time, the respondentfollowed her to Menzies’ and Farrell’s apartment where, in a heated exchange, he threatened to burn her personal belongings. [17] In allowing the appeal and in dealing with the actions of the police inside the boyfriend’s residence, MacPherson J.A.stated the following (at paras. 38-39, 41, 43): Both the

summary conviction appeal judge and the trial judge held that the continuing presence of the police officers inside therespondent’s residence, and their order to him to move out of the doorway, were not lawful. In reaching this conclusion, both judgesappeared to focus on the fact that when the police arrived there was no sign that the respondent was burning, or otherwise causingdamage to, the complainant’s belongings. Thus, the

summary conviction appeal judge stated that there were “no ongoing or continuingexigent circumstances” and, therefore “[t]he police should have exercised better judgment in this matter.” Similarly, the trial judge, afterobserving that destruction of the complainant’s property did not appear to be imminent, concluded that the police “ought to have left theresidence at that time and pursued alternate remedies to protect the property of the alleged victim”. With respect, I do not agree with this reasoning. In my view, the conduct of the police inside the respondent’s residence also compliedwith the two-stage Waterfield test, and was, therefore, lawful.

The steps the police took inside the dwelling were directed to precisely the same purposes. If the respondent had moved out of thebedroom doorway, the complainant, under the watchful eye of the police, could have safely removed her belongings (one purposefulfilled), which in turn would have given the respondent no opportunity to burn them (the second purpose fulfilled). The police werefulfilling their common law and statutory duties of protecting property and assisting a victim of crime. The first stage of the Waterfieldanalysis has been met.

The strong privacy interest that persons have in the sanctity of their own home has often been recognized by the courts. There are,however, circumstances where public policy considerations must take precedence. In Godoy, Lamer C.J.C. stated, at pp. 321-22 S.C.R.: There is unquestionably a recognized privacy interest that residents have within the sanctity of the home. In R. v. Plant, (SCC), [1993] 3 S.C.R. 281, this Court recognized that the values underlying the privacy interest protected by s. 8 of the CanadianCharter of Rights and Freedoms are (per Sopinka J. at p. 292) “dignity, integrity and autonomy”.

In R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 50, Cory J. elaborated that one aspect of this privacy interest is “[t]he right to be free from intrusionor interference”. However, dignity, integrity and autonomy are the very values engaged in a most immediate and pressing nature by adisconnected 911 call. In such a case, the concern that a person’s life or safety might be in danger is enhanced.

Therefore, the interest ofthe person who seeks assistance by dialing 911 is closer to the core of the values of dignity, integrity and autonomy than the interest ofthe person who seeks to deny entry to police who arrive in response to the call for help. (Emphasis added) [18] And he went on to add the following (at para. 45): There have been significant and commendable changes in recent years in the response of Canadian police to domestic violencesituations.

There is now a much greater recognition by the police of both the extent and the seriousness of the problem, and theconsequences for victims in the community, when the police fail to respond. Police officers are often the first persons called to respondin situations of domestic violence. In my view, it is very much in the public interest that the police, in the discharge of their publicduties, be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with theirbelongings.

That is precisely what the police did in the present case. [19] I see very little to distinguish the facts of that case with the facts of the case at bar.

I accept both the reasoning and theconclusion arrived at by the Ontario Court of Appeal and accept that they are applicable in considering the Crown’s application. [20] Accordingly, I am satisfied that the Crown has demonstrated that what it wishes to argue on appeal is a point of lawalone, that it has an arguable case of substance, and that the issue is of sufficient importance to justify this court’s attention. [21] I would therefore grant leave to appeal on the two questions set out in para. 6 of these reasons. J.A.