Tymkin v. Ewatski et al., 2014 MBCA 4

Citation: Tymkin v. Ewatski et al., 2014 MBCA 4 Date: 20140109 Docket: AI 12-30-07727 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN : ) RANDY TYMKIN ) ) (Plaintiff) Appellant ) R. I. Histed ) for the Appellant - and - ) ) M. A. Jack CHIEF JACK EWATSKI, ) for the Respondent Cst. F. MCINTOSH and ) Cst. M.

CARVALHO ) ) Appeal heard: (Defendants) Respondents ) October 15, 2012 ) - and - ) Judgment delivered: ) January 9, 2014 THE GOVERNMENT OF MANITOBA ) ) (Third Party) ) ) MONNIN J.A. (dissenting in part) Introduction [ 1 ] In the early hours of the morning of October 2, 1998, four officers of the City of Winnipeg Police Service attended at the residence of the plaintiff to arrest him as a result of an allegation of a domestic assault made by his former wife. They did not have a warrant to do so. Charges were laid, but were stayed.

The plaintiff brought an action for malicious prosecution, false imprisonment and battery. Over the next 15 years, the case has made its way in a serpentine fashion through the courts of Manitoba, including two previous appeals to this court. The trial eventually proceeded in the Court of Queen’s Bench before a judge with a civil jury. The results were not favourable to the plaintiff, who appeals one last time to this court. Factual Background [ 2 ] A brief history of what led to the arrest is necessary to understand the issues on this appeal. [ 3 ] On October 1, 1998, on an evening shift, Sgt.

McIntosh (then Cst.) partnered with a novice, Cst. Carvalho. They were dispatched to interview a complainant with respect to a domestic assault. They attended on the plaintiff’s recently-separated wife (the complainant) and took her statement. In that statement, she alleged that, some two months prior, the plaintiff had placed a pillow in front of her face and punched her through it. She also alleged that he had kicked one of their dogs down the stairs.

What brought her to register a complaint was that he had attended on that day at her residence, thrown something at the house and taken their dogs, this despite a non-molestation order which had been granted to her a few days previously. She also advised them that, while she was not at the house at the time, her roommate had been. She gave them directions as to where they could speak to that individual. [ 4 ] They did so.

He confirmed that the plaintiff had in fact attended at the house and, apparently, was aware of the non- molestation order, but had made a statement dismissive of it. [ 5 ] Continuing their investigation, the two police officers ascertained that the plaintiff was an employee at the Manitoba

Youth Centre. Attending there, they were given a general indication of the whereabouts of his residence, but not an exact address. From a computer search, they obtained information as to his vehicle and its registration information. They drove to the general vicinity of where they had been told his residence was located and spotted his vehicle behind a home. A decision was made to arrest the plaintiff and backup was called. [ 6 ] The evidence as to what occurred afterwards is contradictory to some extent. Sargent McIntosh, supported by Cst.

Carvalho, testified that they knocked at the door which was eventually opened by an individual who identified himself as a tenant of the premises. They explained to that individual that they were attending to arrest the plaintiff. The individual offered to get the plaintiff from his bedroom and, either verbally or by motion, allowed all four officers in. He then went to wake the plaintiff. The plaintiff presented himself, was informed that he was being arrested, read his Charter rights and placed in handcuffs.

According to the evidence of the police officers, they advised him of the reasons for the arrest, including a description of the alleged assault upon his spouse. [ 7 ] The police entry was described differently by witnesses called for the plaintiff. Glen Gray, an overnight guest, testified that he was the one who answered the door and went to get the plaintiff. His evidence was that he was never asked by the police officers whether they could come in. [ 8 ] The co-tenant of the premises, Steven James, testified that he was awoken by commotion in the apartment, preceded by a knocking on the door.

By the time he came out of his bedroom the plaintiff was already presenting himself to the police officers. He was not the individual who answered the door. [ 9 ] The plaintiff, who slept through the initial events at the door, testified that it was James who woke him up. Where his evidence differs from the police officers’ is that he complained about the tightness of the handcuffs and asked for them to be loosened. His request was ignored. [ 10 ] What occurred thereafter is not contested.

The plaintiff was taken down to the police station, placed in an interview room and, after a short period of time, released upon his own recognizance. He was driven back to his apartment by the police officers who had arrested him earlier that morning. [ 11 ] The plaintiff was charged with an assault upon his spouse. However, the charges were stayed a short time thereafter. He had objected to the issuance of the ex parte non-molestation order and that order was set aside. He instructed his counsel to commence legal proceedings against Sgt. McIntosh, Cst. Carvalho and the then Chief of Police.

The Trial [ 12 ] As indicated, this matter proceeded to trial before a judge and civil jury in the Court of Queen’s Bench. The trial as between counsel for the plaintiff and the trial judge was testy. The trial judge intervened on a number of occasions during cross- examination of the police witnesses, interrupted the plaintiff’s counsel’s address to the jury, and refused to allow the plaintiff to call evidence to contradict a part of a medical report which had been filed by consent.

The plaintiff’s counsel, as part of his appeal, argues that these and other aspects of the trial judge’s conduct exhibited a bias toward him and his client. [ 13 ] As a result of a ruling on a pre-trial motion and an appeal of that ruling to this court, the claim for malicious prosecution was dismissed.

What was left for the trial judge and jury to consider were claims for false imprisonment and battery. [ 14 ] The trial judge, after hearing the evidence and receiving submissions from counsel, chose to have the jury answer 15 questions which he would then take into consideration in determining whether the plaintiff had made out the necessary basis for a claim of false imprisonment. To summarize the answers to the questions, the jury found that Sgt.

McIntosh, at the time of the arrest, believed the information given to him by the complainant and the individual residing with her, and that the plaintiff had committed an assault. The jury also found that Sgt. McIntosh believed that, by arresting the plaintiff, he was preventing a repetition of another incident against the complainant. It was of the view that Sgt.

McIntosh’s belief that there was an assault and that there would be another offence were both based on reasonable grounds. [ 15 ] As to the events concerning the police entry to the premises, the jury found as facts that Gray did not tell the police he was a tenant, but that he did give them permission to come in. It was also of the view that Sgt. McIntosh thought that he was obtaining permission to enter the premises and that the person giving the permission was the proper person to do so. Once on the premises, the police did not move away from the door. The jury found that Sgt.

McIntosh did inform the plaintiff of the offence for which he was being arrested, as well as of his Charter rights. It found as a fact that the handcuffs were not placed too tightly and that excessive force was not used by Sgt. McIntosh. [ 16 ] As to what, if any, damages were sustained by the plaintiff, the jury answered $0. Ruling of the Trial Judge [ 17 ] The trial judge proceeded to rule on whether the plaintiff had made out a claim of false imprisonment relying on the findings of fact returned by the jury. The trial judge viewed the issue as whether Sgt.

McIntosh, on entering the dwelling without a warrant, was trespassing, in which case the arrest that followed was unlawful. The defendants did not raise exigent circumstances. They argued that they had the permission to enter from an individual whom they were under the impression was a tenant. [ 18 ] The trial judge found that the police officers had a reasonable belief that an offence had been committed and would likely be committed again, and that such a belief was based upon reasonable grounds. In his view, the critical issue was the allegation of trespass.

The trial judge relied upon the jury’s finding that the police officers believed that they had consent and believed that the consent was from an individual who had authority to give it to them. In his view, the police officers did not trespass because they had consent. [ 19 ] If they did trespass “technically” it was as a result of a mistake of fact in believing the individual providing them the

permission to enter was authorized to do so. As a result, the trial judge concluded that s. 25(1) of the Criminal Code (the Code)authorized them to carry out the arrest as if it was lawful. He, therefore, dismissed the action for wrongful arrest. [20] The claim for battery was predicated upon the arrest being unlawful. Therefore, he also dismissed that claim. [21] Since the arrest was lawful, the claim of punitive damages became academic. However, the trial judge expressed theview that there was no air of reality to the possibility of punitive damages. He relied upon Jensen v.

Stemmer et al., 2007 MBCA 42, 214Man.R. (2d) 64. Issues [22] The plaintiff’s argument on appeal can be summarized into two distinct issues. [23] The first one relates to trial fairness.

The plaintiff argues that by his conduct throughout the trial, including theerroneous exclusion of evidence, interference in cross-examination, interruption of the plaintiff’s address and refusal to instruct on theissue of reasonable grounds in his charge to the jury, the trial judge exhibited bias towards the plaintiff sufficient to create a situation ofan unfair trial. [24] The second issue relates to whether the trial judge erred when he concluded that, in law, the warrantless arrest was notunlawful by virtue of the consent given by the individual answering the door.

A subset of this issue is whether s. 25 of the Codeafforded the police officers the authority to arrest within the dwelling in the belief that they had the permission of someone with theauthority to give it to them. Standard of Review [25] With respect to the first issue; namely, the conduct of the trial by the trial judge, the appellate court must give greatdeference to a trial judge’s rulings on evidence, what to include in his charge and general conduct of the trial. The presumption is infavour of impartiality (see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259).

An appellate court should onlyintervene if satisfied that the trial judge’s interventions (or conduct) considered in the context of the entire trial, created a reasonableapprehension that the trial judge was biased (see Chippewas of Mnjikaning First Nation v. Ontario et al., 2010 ONCA 47 at para. 243,265 O.A.C. 247, leave to appeal to the S.C.C. refused, [2010] S.C.C.A.

No. 91 (QL)). [26] On the second issue, the lawfulness of the arrest, although the issue of whether there were reasonable grounds for thearrest is a question of mixed fact and law, the trial judge must be correct in his determination of whether the facts as found by the juryallowed for a finding that this was a lawful arrest (see Gentles et al. v. Toronto Community Housing Corp. et al., 2010 ONCA 797 atparas. 45-46, 270 O.A.C. 305).

The question of whether the officers were authorized by law to effect the arrest such as to engage s. 25 ofthe Code is an extricable question of law which must be reviewed on a standard of correctness (see Housen v. Nikolaisen, 2002 SCC 33at para. 36, [2002] 2 S.C.R. 235).

Analysis – Reasonable Application of Bias Issue [27] The plaintiff raises four specific examples of comments and rulings which he argues raise a reasonable apprehension ofbias on the part of the trial judge against him. [28] At trial, the plaintiff filed a report from his physician as evidence of the level of stress he suffered as a result of thearrest. That report contained a sentence to the effect that the plaintiff had indicated to the physician that he had hit his former spousewith a pillow. After introducing the report by consent, the plaintiff’s counsel sought to question the plaintiff on that statement.

The trialjudge denied him that saying: You can’t now call evidence to cast doubt on that letter. You can’t suck and blow at the same time…. The plaintiff took objection to what he argued was “crude … and offensive” language which would diminish him in the eyes of the jury. [29] Secondly, the plaintiff argues that the trial judge interfered with the cross-examination of Sgt. McIntosh on the issue ofthe domestic violence policy of the Winnipeg Police Service.

In the plaintiff’s submission, the trial judge was sarcastic, argued with himand assisted the defence. [30] Thirdly, the plaintiff submits that the trial judge interfered with the cross-examination of the other police witness, Cst.Carvalho, on the same issue of the domestic violence policy, argued with the plaintiff and assisted the defence. [31] Finally, the plaintiff’s counsel argues that by interrupting him when addressing the jury and directing him not to refer toany legal authority, the trial judge was obtrusive, sarcastic and disrespectful, diminishing the effectiveness of his final address to the juryand also being incorrect in law.

Reasonable Apprehension of Bias [32] It is clear that allegations of reasonable apprehension of bias must be considered in light of a judge’s duty ofimpartiality. As stated in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 (at para. 94):

Trial judges in Canada exercise wide powers. They enjoy judicial independence, security of tenure and financial security. Mostimportantly, they enjoy the respect of the vast majority of Canadians. That respect has been earned by their ability to conduct trialsfairly and impartially. These qualities are of fundamental importance to our society and to members of the judiciary. Fairness andimpartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer.

If the words oractions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render thetrial unfair. [33] In Wewaykum, the court further discussed the importance of the principle of judicial impartiality with respect toallegations of reasonable apprehension of bias. The court stated (at paras. 57-59): The motions brought by the parties require that we examine the circumstances of this case in light of the well-settled, foundationalprinciple of impartiality of courts of justice.

There is no need to reaffirm here the importance of this principle, which has been a matterof renewed attention across the common law world over the past decade. Simply put, public confidence in our legal system is rooted inthe fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind.

Conversely,bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, itrepresents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open toconviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or herfunctions impartially in a particular case. (R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, atpara. 106.) Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian JudicialCouncil, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted byL’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carriesconsiderable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon thatpresumption.

Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing fordisqualification to establish that the circumstances justify a finding that the judge must be disqualified. [34] The test for reasonable apprehension of bias was articulated in Committee for Justice and Liberty et al. v. NationalEnergy Board et al., (SCC), [1978] 1 S.C.R. 369 (at p. 394): The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal.

As already seen by the quotationabove, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to thequestion and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informedperson, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is morelikely than not that Mr. Crowe [the chairman], whether consciously or unconsciously, would not decide fairly.” [35] That test has been consistently applied by our court (see Ritchot v.

Law Society of Manitoba, 2010 MBCA 13 at paras.35-36, 251 Man.R. (2d) 121; R. v. Thomas (R.T.), 2010 MBCA 91 at para. 83, 258 Man.R. (2d) 146; and Metis Child, Family andCommunity Services v. A.J.M. et al., 2008 MBCA 30 at paras. 55-56, 225 Man.R. (2d) 261, leave to appeal to the S.C.C. refused [2008]S.C.C.A. No. 259 (QL)). [36] The inquiry into an allegation of reasonable apprehension of bias is fact specific and must be carefully considered in thecontext of the surrounding circumstances (see S. (R.D.) at para. 114). [37] In Kelly v.

Palazzo (2008), 2008 ONCA 82 , 89 O.R. (3d) 111, a decision of the Ontario Court of Appeal,Doherty J.A., for the court, made the following general observations concerning discourteous behaviour by a judge when determiningwhether a reasonable apprehension of bias existed (at paras. 21, 26): It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong

presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers areexpected to appreciate that presumption and, where necessary, explain it to their clients. Baseless allegations of bias or of a reasonableapprehension of bias founded on a perceived slight or discourtesy that occurred during a trial, will not assist the client’s cause and do adisservice to the administration of justice. The exchanges between counsel and a trial judge must also be read in the context of the overall trial.

They represent a few moments in alengthy trial during which there were significant trial management problems. The trial went on for more than three times the lengthanticipated by counsel. There were many interruptions, for various reasons, during the examination of some of the witnesses. As thetrial wore on, the trial judge was understandably anxious to keep the trial moving towards completion in an orderly fashion.

This was noeasy task. [38] In that case, the court considered the impugned exchanges between counsel and the judge and determined that there wasnothing to suggest an apprehension of bias. [39] There is a high threshold for an apprehension of bias in the context of a judicial proceeding. In Middelkamp v. FraserValley Real Estate Board (1993), (BC CA), 83 B.C.L.R. (2d) 257 (C.A.), Southin J.A., with the concurrence of therest of the court, stated (at para. 11): As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party.

But bias does not mean that thejudge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other.

Itdoes not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed specialrespect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge’smind a lack of professionalism. [40] In commenting on the role of a trial judge, the Alberta Court of Appeal stated as follows (Chippewas at para. 231): An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many properreasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial.

A trialjudge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required tointervene in the proceedings. In that case, the court noted that there were some unfortunate instances where the judge’s impatience with appellant’s counsel wasevident and where sharp language was used but concluded that, when those comments were reviewed in the context of the case as awhole, they were not sufficient to cause a reasonable person to apprehend bias on the part of the trial judge. [41] Finally, as stated by the Ontario Court of Appeal in R. v.

Hamilton (A.) et al., 2011 ONCA 399, 279 O.A.C. 199, thefundamental question is whether the interventions led to an unfair trial, an assessment made from the perspective of a reasonableobserver present throughout the trial (see para. 30). [42] In Metis Child, Steel J.A. stated (at para. 58): Thus, an apprehension of bias will not result merely from the active participation of a judge in the trial. There must be something more. There is a point at which judicial intervention becomes interference, the image of impartiality is destroyed and the court is deprived ofits jurisdiction.

See Shoppers Mortgage and Loan Corp. v. Health First Wellington Square Ltd. et al. (1995), (ON CA), 80 O.A.C. 346; 23 O.R.(3d) 362, at 369 (C.A.). As held by the court in Authorson [(2002), 161 O.A.C. 1 (Div. Ct.)] (at para.9): “A trial judge has the right, indeed the duty, to intervene to clarify and understand the evidence or to control the trial, provided that inintervening, the trial judge does not prejudge the issues in dispute or the credibility of the witnesses.” And, as has been held by the Supreme Court of Canada in Arsenault-Cameron et al. v.

Prince Edward Island, (SCC), [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1 (at para. 3): “True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free toentertain and act upon different points of view with an open mind.”

[43] In

summary, the case law establishes that the test for reasonable apprehension of bias with respect to a judge’s conductof a trial is whether an informed person would conclude, reviewing the matter realistically and practically and having thought the matterthrough, that the trial judge would not decide fairly. Thus, the fundamental concern with respect to an apprehension of bias is theappearance of a fair trial. In light of the strong presumption of judicial impartiality, the test will not involve a sensitive or scrupulousconscience.

Rather, the threshold is quite high and requires that there must be a real likelihood or probability of bias. The case law alsoestablishes that it will not be enough to show that a trial judge intervened in the case, was rude or discourteous, or debated with counselover the relevance of legal or factual issues. Rather, the impugned behaviour must demonstrate a partiality or predisposition to decide anissue in a certain way, or indicate that the judge had made up his mind prematurely.

Each case must be decided on its own facts, and theimpugned behaviour must be considered in the context of the entire case by considering the quality and quantity of the interventions orcomments and their effect on a party’s presentation of their case. [44] In the context of a jury trial, particularly a criminal one, the dynamics of such a trial must also be considered. The effecton the jury of the judge’s conduct must be part of the equation (see R. v. Rafters (1991), (BC CA), 6 B.C.A.C. 72, andR. c. Sicotte, [1991] J.Q. No. 806 (QL) (C.A.)).

While perhaps to a lesser degree because the liberty interests of an accused are notinvolved, it is nevertheless a valid consideration in the context of a civil jury trial as well. [45] Turning now to the specific facts of this case as is necessary for such an analysis, let me consider the points raised bythe plaintiff to support his allegation that there was a reasonable apprehension of bias on the part of the trial judge or one which wouldhave led the jury to favour the police officers. [46] The first allegation concerns the attempt to adduce evidence in contradiction of the medical report.

The issue is notwhether the trial judge was correct since the failure to introduce that piece of evidence would certainly not reach the stage of a palpableand overriding error. It is whether the words spoken in context, either individually or collectively with other comments made by the trialjudge, may have displayed to the jury or to an objective person, a bias against the plaintiff. [47] Plaintiff’s counsel complains that the words used were crude and offensive. I disagree. The words are simply acolloquial phrase used to connote impossibility. For example, in Burke Estate et al. v.

Royal & Sun Alliance Insurance Co. of Canada,2011 NBCA 98, 381 N.B.R. (2d) 81, an insurance company tried to argue that certain terms of the policy were invalid after formerlyadmitting the policy was valid. No less than the Chief Justice of New Brunswick, Chief Justice Drapeau, seeing no merit in thecompany’s arguments, stated, “In the vernacular, it cannot ‘suck and blow’ at the same time” (at para. 37), to suggest that a party cannothave both sides of the argument. [48] Our court found a more formal way to express this phrase in R. v.

Farrah (D.), 2011 MBCA 49, 268 Man.R. (2d) 112,where Chartier J.A. (as he then was), questioned the ability of the accused to give testimony to support a position on a voir dire, and thenentirely disavow or attempt to disavow that position at trial based upon a change in his testimony.

Chartier J.A. stated, “The maxim quodapprobo non reprobo comes to mind: one cannot approbate and reprobate at the same time” (at para. 20). [49] In this case, the plaintiff’s counsel, having introduced the evidence of the doctor by consent, without the necessity ofcalling the doctor himself or making him available for cross-examination, then sought to introduce evidence which would contradict thereport. This was over the objection and without the consent of counsel for the defendants.

While there is no doubt that a party canintroduce evidence to contradict or supplement evidence that it previously filed, it cannot do so if it has introduced that piece of evidenceby consented without advising to the other party that it would seek to contradict it. That would have rendered that aspect of the trialunfair.

I see no merit to the plaintiff’s contention that this displayed a hostile animus against him by the trial judge. [50] The next two examples advanced by the plaintiff go to the manner in which plaintiff’s counsel sought to cross-examinethe police officers with respect to the Winnipeg Police Service domestic violence policy. This was an attempt by the plaintiff’s counselto show that the policy supported a practice of seeking to obtain the accused’s version of any incident before deciding to arrest. It wasplaintiff’s counsel’s

interpretation that, the decision by the police officers to arrest without obtaining the plaintiff’s explanation of theevents, was contrary to the policy. The difficulty was that, in attempting to do so, plaintiff’s counsel mischaracterized the wording of thepolicy. His questioning of the police officers was, therefore, viewed by the trial judge as unfair to them as it sought to suggest a factwhich was incorrect, or at least subject to argument. [51] A trial judge has a role of protecting a witness from unfair questioning.

The issue of the meaning of the policy and itsrole in the arrest had been the subject of not only an appeal to this court relating to the malicious prosecution aspect of the originalaction, but also the motivation for the police proceeding to arrest in the first place. It was a live issue at the trial and open to the trialjudge to be wary as to the manner in which the cross-examination proceeded.

His involvement and the manner in which he prevented theplaintiff’s counsel’s questioning is not, in my view, incorrect nor indicative of a bias on his part. [52] The next concern raised by the plaintiff is the interruption of the plaintiff’s counsel’s submission to the jury when heattempted to make his submission regarding the law applicable to false imprisonment to the jury. The plaintiff argues that Queen’sBench Rule 52.07 was applicable: Generally 52.07(1) On the trial of an action, the order of presentation, unless directed otherwise by the court, shall be regulated as follows: ….

(

f) at the conclusion of the evidence the plaintiff may make a closing address followed by the closing address of the defendant and therebuttal address of the plaintiff. [53] He argued that he was entitled to make one submission and not to separate his submission on the law from that of thefacts although, he was going to advise the jury that, on any issue of law, the judge’s view trumped his. [54] The plaintiff also argues that the intervention was intrusive, argumentative and sarcastic and could only have diminishedthe case for the plaintiff in the eyes of the jury. [55] In my view, the plaintiff’s argument is patently wrong.

He confuses addresses to the jury with submissions to thejudge. It is clear that in false imprisonment cases, while the jury is the trier of the facts, the judge retains the obligation to determinewhether the facts as found by the jury support the legal conclusion of whether the arrest was unlawful. In this case, one of the live issueswas whether the police had reasonable grounds to believe that the plaintiff had committed an offence and that his arrest was necessary toprevent the repetition of the offence. Plaintiff’s counsel was entitled to address the jury on the facts.

His submissions on the law werefor the judge. [56] The plaintiff’s position on appeal is that the charge to the jury was deficient because it did not explain what constitutedin law reasonable grounds to arrest and failed to put to the jury the plaintiff’s position that, until they had obtained the plaintiff’s versionof the events, the police could not have formulated reasonable grounds to believe an offence had been committed.

This error wascompounded, he says, by the fact that his counsel was not able to put to the jury what constituted, in his view, the law applicable to theissue of the formulation of reasonable grounds and false arrest. From this, the plaintiff alleges that it reinforced the allegation ofreasonable apprehension of bias on the part of the trial judge. [57] Again, in my view, plaintiff’s counsel was pursuing an incorrect approach. There is no doubt that counsel is entitled toaddress the jury. However, that address must be relevant and directed to the issues that the jury must decide.

The trial judge properlyrecognized that, in this case, the issue of whether the defendants objectively had reasonable grounds to arrest eventually required him todecide on the basis of the findings of fact by the jury. It was a decision reserved to the trial judge. The issue of whether the policeofficers had a subjective belief in the complainant’s version of the events and whether such a belief was a reasonable one were findingsof fact which could be left to the jury. However, as to whether that constituted an objective reasonable belief was properly within thepurview of the trial judge.

To allow plaintiff’s counsel to address the jury on that topic was unnecessary and, at best, confusing. [58] Furthermore, as the trial judge made the ruling at an earlier part of the trial and advised counsel of that, plaintiff’scounsel’s persistence to do so in the face of these rulings was inappropriate. [59] After a thorough review of the entire transcript of the trial and given the high threshold that the plaintiff must meet onthis issue, I do not believe that there was a real likelihood or probability of bias which can be derived from the exchanges betweencounsel for the plaintiff and the trial judge.

There is no doubt that the trial judge was active in this trial and took part to a greater degreethan other judges may have. However, his reasons for doing so were explained on the record and counsel for the plaintiff was given anopportunity to convince the trial judge prior to rulings being made. The rulings were supported in law and by the evidence and, in myview, cannot form the basis of an allegation of a reasonable apprehension of bias.

Reasonable and Probable Grounds [60] In the context of Canadian criminal law, a question of whether the facts amount to reasonable and probable groundscontinues to be a question of law (R. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527). While issues of fact remain within thepurview of the jury, it is clear that it is for the judge in a case of false imprisonment to determine the question of reasonable and probablecause (see Kennedy v. Tomlinson (1959), (ON CA), 20 D.L.R. (2d) 273 (Ont. C.A.), leave to appeal to S.C.C. refused(July 17, 1959).

In Gentles, Juriansz J.A., for the court, stated (at paras. 45-46): In reserving to himself the question whether there were reasonable and probable grounds to arrest, the trial judge relied on this court’sjudgment in Liorti v. Andrews (1974), (ON CA), 2 O.R. (2d) 130 (C.A.). That decision makes clear that despite thecourt’s reservation of such a question, all factual disputes must be resolved by the jury. The standard of correctness applies to the trialjudge’s application of the law in deciding the reserved question of mixed fact and law.

The standard of correctness also applies to the review of the judge’s exercise of his proper function. If, as the appellant submits, the trialjudge went beyond the scope of his role of applying the law to the facts found by the jury, that would amount to a legal error and thiscourt may intervene. [61] In Alexander v. Halley et al., 2009 MBQB 228, 244 Man.R. (2d) 101, Beard J. (as she then was), examined in detail theissue of who, as between judge and jury, has the function of determining whether the police had reasonable grounds to arrest in an actionfor false imprisonment.

After a thorough review of the jurisprudence, Beard J. came to the conclusion that it is solely within the judge’sjurisdiction to determine whether, objectively, reasonable grounds to arrest exist in a case of false imprisonment. I agree with theconclusion that this is the state of Canadian jurisprudence.

[62] The questions relating to the police officers’ reasonable belief that, by arresting the plaintiff, they are preventing therepetition of an offence, may not be questions that needed to be decided by a jury. In Barnett v. Ewatski et al., 2012 MBCA 113, the trialjudge had to consider whether questions relating to the police officer’s reasonable belief that the arrest was necessary to prevent furtherbreaches should be put to the jury.

He concluded that, contrary to the issue of reasonable and probable cause which required some legalknowledge and, therefore, some judicial control, a decision as to whether a police officer believes, on reasonable grounds, that an arrestis necessary to prevent further breaches, can be assessed by a jury. In that case, on appeal to this court, we were not persuaded that therehad been an error in principle in the instructions to the jury or the application of the law to the facts in that case.

While that is notdecisive, and a further discussion of that issue may be necessary at another time, for the reasons that follow, I do not believe this caseturns on that issue. Was the Arrest Lawful? [63] Once an arrest has been established by the plaintiff’s evidence, the onus shifts to the defendants to show that the arrestwas lawful. Since, in this case, there was no warrant to arrest, the facts raise two different questions on this issue.

The first is theauthority of the police officers to arrest the plaintiff and the second is whether there was authority for them to arrest him in his residence. [64] The police officers had received what they believed was reliable information from the complainant and her roommatethat a domestic assault had occurred, that the accused had attended recently at the home of the complainant and that he did not seemconcerned about a non-molestation order.

They were of the view that an arrest was required to prevent a repetition of the offence. [65] The defendants argued successfully before the jury that the police officers subjectively held those beliefs and did soreasonably.

They convinced the trial judge that it was objectively reasonable for the police officers to hold those beliefs and to proceedto arrest. [66] Given that the jury found that the police officers personally believed that they had reasonable and probable grounds tomake an arrest and that the trial judge found that those beliefs were reasonable, then there was authority at common law and under s. 495of the Code for the police officers to arrest the plaintiff when they were to find him.

The trial judge did not err in reaching thatdetermination. [67] However, the arrest took place in the plaintiff’s residence without a warrant. It was the plaintiff’s position at trial andon appeal that, as a result of the Supreme Court of Canada’s decision in R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, andamendments made to the Code as a result of that decision, an entry warrant was required in order to effect the arrest in the plaintiff’sresidence. Failing a warrant, the consent of a person with the authority to grant access was required. That did not occur in this case.

Theconsent, if it was granted at all, was by a third party with no authority to give it, according to the plaintiff. I have come to the conclusionthat, on that aspect, the plaintiff’s position is correct. The Law after Feeney [68] At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspectwas in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if properannouncement was made (see R. v. Landry, (SCC), [1986] 1 S.C.R. 145, and Eccles v.

Bourque et al., (SCC), [1975] 2 S.C.R. 739). [69] However, in Feeney, the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter ofRights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.

Absent exigent circumstances orcases of hot pursuit, an entry warrant would be required to enter a dwelling to make an arrest (see Feeney at paras. 48-49). [70] The Supreme Court of Canada delayed the effect of its decision to enable Parliament to introduce legislation to establisha scheme by which police officers could obtain entry warrants for the purpose of carrying out these arrests. Parliament enacted ss.529-529.5 of the Code.

In order to obtain an entry warrant for the purpose of arrest, police officers must establish reasonable groundsupon which to arrest a suspect and reasonable grounds to believe the suspect is or will be present in the dwelling-house. Telewarrants arealso available. [71]

Section 529.3(1) of the Code allows for exigent circumstances to override the need for a warrant. Those circumstancesare defined in s. 529.3(2) of the Code to include situations in which there are reasonable grounds to believe that imminent bodily harm ordeath may occur or that imminent loss or destruction of evidence may occur. It was conceded by the defendants’ counsel that exigentcircumstances did not exist in this case. [72] The requirement that police officers obtain an entry warrant pursuant to Feeney before effecting an arrest in a dwelling-house is subject to a number of exceptions.

Not only does the Code allow for exigent circumstances to override the need for a warrant asset out above, case law has developed situations where Feeney is not applicable. [73] Firstly, if police are given consent to enter the premises for a valid investigatory purpose, rather than for the purpose ofarresting an occupant, and obtain reasonable grounds to arrest the occupant during the in-house investigation, an arrest within thedwelling will be legal without having first obtained an entry warrant (see R. v. Van Wyk (H.W.)(1999), 104 O.T.C. 161 (S.C.J.), leave toappeal to S.C.C. dismissed, [2002] O.J.

No. 3144 (QL) (C.A.); R. v. Grotheim (K.), 2001 SKCA 116, 213 Sask.R. 141, leave to appeal toS.C.C. dismissed, [2002] S.C.C.A. No. 17 (QL); R. v. Couturier (P.), 2004 NBCA 91, 277 N.B.R. (2d) 311; R. v. LeClaire, 2005 NSCA165, 208 C.C.C. (3d) 559, leave to appeal to S.C.C. dismissed, [2006] S.C.C.A. No. 63 (QL); and R. v. Desrochers (2007), 47 M.V.R.(5th) 315, leave to appeal to C.A. dismissed, 2008 ONCA 255, 58 M.V.R. (5th) 16. [74] That was the case in our court’s decision in R. v. Petri (V.R.), 2003 MBCA 1, 170 Man.R. (2d) 238.

In Petri, policeofficers received a 911 call with respect to a vehicle driving erratically, together with the vehicle licence plate number and the vehicledescription. Upon arriving at the address of the registered owner of the vehicle, the police officers noted a vehicle fitting the descriptionin the driveway. They knocked on the door and asked the male occupant who answered a number of questions, including whether he

was the registered owner of the vehicle. Noting a strong smell of liquor, he was placed under arrest for impaired driving. The judgmentof the court, given by Kroft J.A., was that the police officers had not infringed the accused’s s. 8 Charter rights by relying on his implicitconsent to enter the residence. In his view, what the trial judge described occurring inside the residence was nothing more than part ofthe continuing investigation conducted without any coercion (see para. 20).

Kroft J.A. noted (at para. 23): It is true that any implied invitation may be negated where the police enter the residence without the express or reasonably assumedconsent of the occupant. However, there is nothing to nullify consent in the evidence that was before the court in this case. If the policeare present for the lawful purpose of conducting an investigation by communicating with the occupant, they can continue thecommunication unless and until the occupant makes known that his cooperation has been withdrawn. [75] He also noted (at para. 29): Undoubtedly, there have been many decisions since R. v.

Feeney which have criticized police entry into private residences andwarrantless arrests.

It is critical, however, that the specific facts of each case be kept in mind when dealing with s. 8 breaches. …. [76] Finally, in that case, Kroft J.A. stated (at para. 31): Admittedly, there is no evidence that the accused in our case actually said, “Come in”, but he had stepped back, allowing entry by thepolice and presumably for the door then to close. [77] Thus, the intention of the police when approaching the door to a dwelling-house is important in determining whether thesubsequent arrest in the house was lawful (see Grotheim at paras. 25-26).

In this case, it is clear that the police officers were attendingfor the purpose of arresting the plaintiff and not to pursue their investigation as was made clear by the evidence of both Sgt. McIntoshand Cst. Carvalho. [78] Secondly, another exception to the need for a Feeney warrant for an arrest in a dwelling-house has been held wherepolice were given consent to enter a residence for the purpose of arresting someone within.

In those situations, the nature of the consent,including the issue of whether it was obtained from someone having a privacy interest and whether it was sufficiently informed, arefactors to be considered in assessing whether the arrest was lawful. [79] In Petri, Kroft J.A. considered another decision of our court which he thought bore some similarity; namely, that of R. v.M.C.G., 2001 MBCA 178, 160 Man.R. (2d) 131, leave to appeal to S.C.C. dismissed, [2002] S.C.C.A. No. 9 (QL). [80] In M.C.G., police officers attended at a dwelling-house for the purpose of arresting a young offender who apparentlylived there.

After knocking, the police were allowed into the dwelling’s entrance hall by a woman who turned out to be the youngoffender’s sister. The officers were not invited in by explicit words, but did not force their way in. While the inquiries about the youngoffender’s presence at the dwelling were occurring, the young offender himself appeared. He was told by the police officers that therewas a warrant for his arrest outstanding and asked if he was willing to go to police headquarters to deal with the matter. The youngoffender agreed and he was taken to police headquarters in handcuffs.

Huband J.A. noted the following specific facts (at para. 7): At no time did the police officers stray beyond the entrance hall. They did not tell the young offender directly that he need not agree toaccompany them, but the words spoken were clearly in the nature of a request rather than a demand. There was no attempt to place theyoung offender under arrest until he had agreed to accompany them to headquarters. [81] Huband J.A. noted that, although individuals can waive their privacy rights under the Charter, the consent to waiveCharter rights must be an informed consent (see R. v.

Wills (1992), (ON CA), 7 O.R. (3d) 337 (C.A.)). With theconcurrence of Twaddle J.A., he ultimately concluded that the arrest of the young offender was unlawful because he was not told indirect terms that he need not accompany the officers and that, if he refused, the police officers would need to obtain a different form ofwarrant before attempting to effect an arrest in the residence (see paras. 13-14).

However, Huband J.A. concluded that the Charterviolation was a technical one only and therefore the confession which had been obtained while the accused was in custody was not to beexcluded under s. 24(2) of the Charter. Kroft J.A., in concurring reasons, would have found that there was not even a “breach … of atechnical nature.” He stated (at para. 27): …. I am unable to see how this case can turn on whether the arrest of the young offender took place on one side of the door sill or theother.

As Huband, J.A., states in para. 21, the officers acted in good faith, did not mislead, exercised no force, and rightfully inferredthat the young offender understood that he had the right to refuse.

[82] It would appear from the comments of Huband J.A. that a determinative factor in the majority decision was the failureof the police officers to advise the occupants of their purpose prior to being allowed entry. As stated (at paras. 13-14): The evidence of informed consent in the present case is not compelling. The officers were allowed to cross the threshold and enter theentrance hall of the residence before the nature of their business was fully known.

They asked, rather than demanded, that the youngoffender accompany them to the police station, but the young offender was not told in direct terms that he need not accompany theofficers and that if he refused, prudence would require the police to obtain a different form of warrant before attempting to effect anarrest in the residence. The learned trial judge concluded that the arrest of the young offender was lawful and that no Charter breach had occurred. In theabsence of clearer evidence of informed consent, I am unable to reach that same conclusion.

But, without hesitation, I would concludethat any Charter violation was of a technical nature only. [83] Petri was considered by this court in R. v. Guiboche (G.F.), 2004 MBCA 16, 180 Man.R. (2d) 276, which, like Petri andM.C.G., involved an issue of exclusion of evidence on the basis that the arrest was unlawful. In Guiboche, police officers arrested theaccused without a warrant at his father’s house. As a result of discussions with a witness, they had decided that they would arrest him assoon as they could find him. Guessing that he had gone to his father’s residence, they attended and knocked at the door.

They wereinvited in by the father who advised them that the accused was upstairs. They then proceeded upstairs to arrest him. On the issue of thelawfulness of the arrest challenged on the basis of the fact that the police officers did not have a warrant, Freedman J.A., for the majority,after concluding that there were no exigent circumstances under s. 529.3 of the Code, stated (at para. 56): It is clear to me that in relation to their entry into the house, the police acted in good faith, without trickery, without misleading (unlike inR. v.

Adams (F.) (2001), (ON CA), 148 O.A.C. 253; 157 C.C.C. (3d) 220 (C.A.) relied on by the accused) and,importantly, without any degree of force whatsoever (unlike in Feeney). They knocked on the door, and Joe Guiboche opened it,stepping back. Cpl. Fraser stepped over the threshold, without any words of invitation by the homeowner to do so. That act, in and ofitself, is insufficient to render unlawful what followed. …. [84] However, he also stated as follows (at paras. 58-59): Of far more significance is what followed. Once Cpl.

Fraser made clear the purpose of his attendance (i.e., they were looking for theaccused), Joe Guiboche could have said nothing, or he could have declined to speak, or he could have questioned Cpl. Fraser, or he couldhave asked Cpl. Fraser to leave. Instead, without any further action by Cpl. Fraser, Joe Guiboche told him that the accused was upstairs,and not to say anything. Moreover, he entered into a discussion with Cpl. Fraser, and provided him information about the layout of theupstairs, where the accused was. This was clearly in connection with the purpose of the visit.

Joe Guiboche knowingly and willinglyfacilitated the police’s achieving their objective. I am satisfied that the actions and words of Joe Guiboche manifest permission on his part for the police to move from the doorway areainto the house proper, and to go upstairs for the purpose of finding the accused, which is why Cpl. Fraser had told him they were there. Indeed, the only thing missing in this scenario to remove any doubt on this point is that there were no actual words of consent. Butlooking at all the facts, such were unnecessary.

The homeowner consented to the police going into the house proper and upstairs, inconnection with their stated search for the accused. Joe Guiboche, a person who, on the evidence, as will be discussed, had a reasonableexpectation of privacy in the house, was an active participant assisting the police, and his conduct and communication show more thanmere acquiescence or compliance. The judge clearly erred when he described this case as borderline, and said there was no consent. The evidence shows that there was sufficiently informed consent, as explained above.

My conclusion is that apart entirely from theissue of exigent circumstances, no warrant was needed for the entry, and unless otherwise required by the Charter, nothing in thecircumstances of the police entry into the house vitiates the lawfulness of the arrest. [emphasis added] [85] Therefore, the facts in Guiboche distinguish the case from what is before us. In this case, the facts as found by the jurywere that the individual who presented himself at the door was not asked if he was a tenant.

While the police officers’ notes suggest thatthey did obtain the consent of a tenant, that is contradicted by the evidence at trial and by the finding of the jury. In the circumstances,we are dealing with the consent of an individual who was an overnight guest.

[86] In both Guiboche and M.C.G., the transparency and reasonableness of the police conduct were factors given that s. 24(2)of the Charter was in play. An assessment as to whether evidence should be excluded under s. 24(2) requires a review of the nature ofthe police conduct.

In this case, what is at issue is the authority of the police officers to enter a dwelling-house to arrest without awarrant, not the reasonableness by which they then conducted themselves within the home. [87] It should also be noted that, in all three of the Manitoba cases that I refer to above, the onus of establishing a breach wasupon the accused. In this case, the onus of establishing the lawfulness of the arrest rests on the defendants. [88] In

summary, the three Manitoba cases referred to above do not stand for a proposition that mere invitation to enter ahome or remaining on the doorstep of a home confers an authority to arrest within the home. In my reading of the cases, unless thepolice are there to conduct an investigation or have received a valid consent from someone in a position to give it, the requirements ofFeeney and of the Code are not displaced. [89] Where police seek to rely upon a consent to enter the premises to effect an arrest, they must rely upon a valid one. Therequirements for a valid consent include that:

a) it must be given by someone who has a privacy interest in the premises (see Guiboche, Young v. Ewatski, 2012 MBCA 64, 280Man.R. (2d) 239, and Feeney); and

b) the consent must be an informed one (see Wills and M.C.G.). [90] In this case, the evidence is that the consent to enter the premises was given by Gray, an overnight guest. In my view,there was no sufficient privacy interest to allow that individual to waive the privacy rights of the individuals dwelling in the home. [91] The considerations would be different had the police officers, when the plaintiff presented himself, indicated they hadno warrant, but that if he did not wish to come with them voluntarily they would obtain one. In other words, that there was nocompulsion for him to leave with them.

They did not do so and, therefore, cannot rely upon the plaintiff’s acquiescence to be handcuffedas consent to the arrest. [92] Where police officers intend to arrest a suspect in a dwelling-house, following the spirit of the Feeney decision, theyshould, in the normal course, obtain an entry warrant rather than attempt to obtain consent and have a contested arrest analysed on an expost facto basis.

It would seem reasonable that, where police have not obtained an entry warrant, the courts will require that any consentgiven be an informed consent requiring evidence that the person giving the consent is aware that the police are present to arrest someonein the house, and demonstrate that they have chosen to let the police officers accomplish their purpose. While it is not the person who isthe target of the arrest who needs to give the consent, it is a person with a privacy interest in the dwelling-house.

In this case, theevidence provided by the overnight guest and the co-tenant, accepted by the jury, was that the individual giving the consent to enter intothe premises was someone with an insufficient privacy interest to do so. The consent was not a valid one and could not authorize them toproceed to arrest within the residence. [93] In the recent decision of R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, which was concerned with a warrantless searchand seizure of a work-issued laptop by the police officers, Fish J., for the majority of the court, determined that the police officers couldnot rely upon the employer’s consent to search the employee’s work-issued laptop in circumstances where the employee had areasonable expectation of privacy in the personal information in the laptop. In his view, the doctrine of third-party consent could not besupported (see paras. 77-79).

While in a different context, Cole does support the principle that a third party cannot waive the privacyrights of another person. Thus, in this case, an overnight guest could not waive the privacy interests of the tenants to allow entry for thepurposes of an arrest (see also R. v. Blinch (R.J.) (1993), (BC CA), 31 B.C.A.C. 131; R. v. Trykalo, [1999] S.J. No.321 (QL) (Prov. Ct.); and R. v. Collier (B.) et al., 2001 NSPC 15, 196 N.S.R. (2d) 209). Application of the Law to the Present Case [94] Given that Gray was simply an overnight guest, he was not a person with a reasonable expectation of privacy.

Thepolice were attending the premises not for an investigatory purpose but with the clear intention of arresting the plaintiff. In order to gainentry and to effect an arrest without a warrant, they had to obtain the informed consent of an individual with a sufficient privacy interestto allow them to do so. The evidence is that they did not do so. They did not receive consent, let alone an informed consent, from suchan individual and consequently, applying Feeney, the plaintiff’s arrest was unlawful.

Section 25(1) of the Code [95] The trial judge, after ruling that the arrest was lawful, concluded that s. 25(1) of the Code protected Sgt. McIntosh fromcivil liability because, as found by the jury, he reasonably believed that the individual who had answered the door was a tenant and hadgiven them permission to enter to effect the arrest. He concluded that since the arrest was lawful, the “technical” trespass was areasonable mistake of fact which engaged s. 25(1) of the Code. In that, he erred in law. [96] The trial judge’s analysis started from the Ontario Court of Appeal decision in Hudson v.

Brantford Police ServicesBoard (2001), (ON CA), 150 O.A.C. 87. In that case, the issue before the court was whether police officers hadreasonable grounds to arrest Mr. Hudson for failing to remain at the scene of an accident. When they attended his home to effect thearrest, Mr. Hudson’s mother answered the door. The trial judge found as a fact that she did not consent to the entry of the police officers,but told them she would go get her son who was sleeping. The police officers, however, followed her to Mr. Hudson’s room, shook himawake and, after a brief scuffle, arrested him. Mr.

Hudson sued the Police Services Board for unlawful entry and unlawful arrest. Thetrial judge found that, while the police officers unlawfully entered Mr. Hudson’s home, they were protected by s. 25 of the Code and thecommon law as they “acted in good faith and believed that they had reasonable and probable grounds to arrest” (at para. 10). On appealto the Ontario Court of Appeal, the only issue was whether the police officers were protected by s. 25 of the Code.

Rosenberg J.A., onbehalf of the court, reviewed the case of Eccles and noted the opinion of Dickson J. (as he then was) that the question to be asked unders. 25(1) was not whether the police officers were authorized to make an arrest, but whether they were authorized to trespass. Rosenberg

J.A. went on to state (at para. 26): Despite her findings of fact and law concerning the illegality of the entry and the arrest, the trial judge dismissed the claim because ofher view that under s. 25 and at common law it is a defence if the officers are acting in good faith and on reasonable and probablegrounds. The trial judge looked at the overall conduct of the police and concluded that they had reasonable and probable grounds toarrest the plaintiff, that they were not acting in an overzealous manner and therefore none of their actions could be described as“unreasonable or in bad faith”.

Leaving aside any common-law defence, which is not in issue any longer, this is too broad an applicationof s. 25(1). The issue is not whether the officers were acting unreasonably or in bad faith generally but whether they had authorization totrespass. They did not, and s. 25(1) affords them no defence. In view of this court’s decision in Delong [(1989), (ONCA), 31 O.A.C. 339], referred to earlier, the trespass rendered the arrest unlawful.

Rosenberg J.A. did say that it seemed “at least arguable that if the police reasonably believed that they had consent to enter theapartment, this would give them a defence under s. 25(1) even if, in fact, they had no consent” (at para. 24). This was of course an obitercomment since the evidence was that there was no evidence of consent. [97] Section 25(1) of the Code reads as follows: Protection of persons acting under authority 25.

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessaryfor that purpose. [emphasis added] [98] That the

section only applies where police officers are involved in an action which is itself authorized by law wasexplained by Dickson J. in Eccles. As s. 25(1) has been interpreted, it will only apply where the police are involved in an action which isitself authorized by law. As stated by Dickson J. in Eccles (at p. 742): …. It is the submission of counsel for the respondents that a person who is by s. 450 authorized to make an arrest is, by s. 25, authorized bylaw to commit a trespass with or without force in the accomplishment of that arrest, provided he acts on reasonable and probablegrounds. I cannot agree with this submission.

Section 25 does not have such amplitude. The

section merely affords justification to aperson for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonableand probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, iswhether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they wererequired or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in thecommon law for there is nothing in the Criminal Code. …. [emphasis added]

[ 99 ] Essentially, Dickson J.’s

interpretation of s. 25(1) is that it does not protect police officers for any and all actions just because they have reasonable grounds to make an arrest. Rather, police officers must be required or authorized by law to do the impugned act. This was also recognized by Rosenberg J.A. in Hudson , where he stated (at paras. 25, 32): To summarize, the officers had no lawful right to enter to arrest the plaintiff and, assuming Dickson, J’s, analysis of s. 25(1) is correct, no defence to a claim for trespass based on the unlawful entry.

To conclude, s. 25(1) does not provide a defence to a police officer who generally acts reasonably and in good faith. The defence must be related to the specific conduct involved and the legality of the action the officer claims is “authorized by law” within the meaning of s. 25(1). [ 100 ] My concern with the trial judge’s findings is his failure to analyse whether s. 25(1) applied at all. His reasoning was that, assuming that there was “technical” trespass, then it was as a result of a mistake of fact and not of law and, therefore, s. 25(1) applied.

He did not consider whether or not the police officers had “authority” to arrest within the residence without the consent of someone who had the ability to give it. In his view, the subjective assessment of the police officers that they had received a consent from someone whom they assumed was a resident of the premises (although not a tenant as found by the jury) allowed them to proceed to arrest. [ 101 ] However, since there was no warrant, the only authority to arrest within the dwelling must have arisen from the consent.

If there was no valid consent, except in the minds of the police officers, the mistaken belief is in fact being used to cloak the police officers with the requisite authority. That is legal boot-strapping. [ 102 ] I repeat, under Feeney , the authority to arrest within the dwelling-house must come from a warrant, exigent circumstances as contemplated under the Code , or a valid consent. Failure to meet the exceptions to Feeney meant that the police officers did not have the authority to arrest.

Not having the authority to arrest, s. 25(1) is not applicable, even if based upon a mistake of fact. [ 103 ] In conclusion on this issue, s. 25(1) of the Code was not applicable. For the trial judge to conclude that it was, amounted to an error of law. [ 104 ] Having concluded that the trial judge erred and that the defendants had not made out that the arrest was lawful, the actions in both false imprisonment and battery should be successful. Damages [ 105 ] The jury was asked to award provisional damages and awarded in the sum of $0.

This was notwithstanding the evidence adduced by the plaintiff of the consequences of the arrest to him, including employment and health issues. [ 106 ] An appellate court should strive to preserve a jury verdict ( see Jensen ). This would apply to a jury’ s determination of damages as well. It is well established in law that damages are presumed in all cases of false imprisonment and battery. Those damages may be in the form of nominal ones. That is the correct approach in this case.

The jury was clearly satisfied that the plaintiff was not handcuffed too tightly, had not suffered embarrassment in a quantifiable way and had not suffered any damages due to his work being affected. Furthermore, based upon the jury’s findings, this was a case where the police officers had reasonable and probable grounds to arrest. Had the police followed the correct procedure and obtained a warrant (or obtained the plaintiff’s consent to arrest him in his home as his collaboration seemed to be a given), his arrest would have followed in the usual manner.

While damages should flow, in the circumstances, I would award nominal damages of $1 to reflect the jury’s views. Punitive Damages [ 107 ] The plaintiff argues that punitive damages should flow from the police officers’ conduct in this case. I am concerned with the evidence of the police officers that the decision not to seek a warrant, but rather to attempt to arrest relying upon obtaining a consent from an occupant, was because of a desire to avoid obtaining a warrant before a justice of the peace and the delay it may have engendered. The evidence of Sgt.

McIntosh was that there was an urgency to effect an arrest because of a concern as to the volatility of the plaintiff and that passing it on to other police officers to follow up the next morning may lead to the matter being deferred. These concerns do not strike me as being supported by the facts of this case. I do not wish to second guess police procedures and operations and recognize that domestic violence is a serious matter which deserves quick attention by the police.

However, attending at someone’s premises at 2:00 o’clock in the morning without a warrant to arrest when there is no indication of exigent circumstances is concerning. [ 108 ] Notwithstanding that concern, I agree with the comments of the trial judge that “the suggestion that there is any air of reality to the possibility of punitive damages is without any foundation” ( see Jensen ). As stated previously, the jury was not of the view that the plaintiff suffered the type of damages which he sought. It believed, for the most part, the police officers’ testimony.

Costs [ 109 ] The defendants did make a formal offer to settle under Queen’s Bench Rule 49 in the amount of $8,800 a few days before the trial. The offer did not meet the time requirements set out in the rule and the trial judge, when awarding damages, only awarded the defendants the usual amount of party-and-party costs, presumably concluding that, while the offer could be considered in assessing costs, it did not require the application of the doubling rule provided for if the offer had been made in a timely fashion.

[110] In the circumstances, I would therefore, notwithstanding the offer, reach the same conclusion and award the plaintiff hiscosts in this court and in the court below. J.A. CHARTIER J.A. [111] I am in agreement with my colleague’s analysis until he reaches his conclusion that, in the circumstances of this case, thepolice officers could not be afforded the protection from civil liability pursuant to s. 25(1) of the Criminal Code (the Code). [112] As this was a civil jury trial, select questions were posed to the jury and answers were given. The following answers weregiven with respect to questions 4-13.

The jury found that: 1) Sgt. McIntosh (then Cst.) had reasonable grounds to believe that the plaintiff had assaulted his former wife (question 4); 2) Sgt. McIntosh believed that by arresting the plaintiff, he was preventing the continuation of, or repetition of, the offence or thecommission of another offence (question 5); 3) Sgt.

McIntosh had reasonable grounds to believe that there could be a commission of a further offence if he did not arrest theplaintiff (question 6); 4) the person answering the door did not tell the police officers that he was a tenant (question 7 (a)); 5) the person answering the door gave the police officers permission to come in (question 7 (b)); 6) Sgt. McIntosh thought he was getting permission to step in (question 8 (a)); 7) Sgt.

McIntosh thought that the person giving him permission was the proper person to do so (question 8 (b)); 8) once the police officers crossed the threshold into the premises, they did not move away from the space near the door (question9); 9) Sgt. McIntosh did inform the plaintiff of the offence while at the house (question 10); 10) Sgt. McIntosh did inform the plaintiff of his Charter rights while at the house (question 11); 11) the handcuffs were not placed too tightly on the plaintiff (question 12); and 12) Sgt.

McIntosh did not use excessive force against the plaintiff (question 13). [113] It is trite to say that great deference is owed to the jury’s factual findings. Those findings cannot be disturbed unless theyare “so plainly unreasonable and unjust ... that no jury reviewing the evidence as a whole and acting judicially could have reached it”(McCannell v. McLean, (SCC), [1937] S.C.R. 341 at 343; and Simao v. Hankook Ilbo et al., 2012 ONCA 175 at para. 2,289 O.A.C. 109). I agree with my colleague that the jury’s findings of fact ought not to be disturbed. [114] The trial judge also made a number of findings.

He found that the police officers’ subjective belief in the grounds toarrest the plaintiff was objectively reasonable in the circumstances. He also found that the jury’s findings that the police officers’subjective belief that they had obtained a valid consent to enter the dwelling were objectively reasonable in the circumstances.

In thecontext of a civil matter like this one, questions relating to whether the trial judge made any errors in the application of the legalprinciples to the facts of the case are questions of mixed fact and law, unless a pure question of law can be extricated from the factualmatrix (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; more recently Grant v. Torstar Corp., 2009 SCC 61 at para. 127,[2009] 3 S.C.R. 640; and Young v. Ewatski, 2012 MBCA 64 at paras. 30-42, 280 Man.R. (2d) 239).

Contrary to the conclusion of mycolleague Monnin J.A., I find that there is no extricable question of law with respect to these findings of the trial judge, with the resultthey are to be reviewed on a standard of palpable and overriding error. As was held in H.L. v.

Canada (Attorney General), 2005 SCC 25at para. 110, [2005] 1 S.C.R. 401, “clearly wrong” or “unreasonable” are the functional equivalents of the term “palpable and overridingerror.” [115] I agree with my colleague that, given that the jury found the police officers had the subjective belief in the grounds toarrest the plaintiff and given that the trial judge correctly concluded that those grounds were objectively reasonable in the circumstances,

there was authority at common law and under s. 495 of the Code for the police officers to arrest the plaintiff when they found him. Related to this point, a concession by the plaintiff should be noted. He conceded that, because the police officers had attended to thedwelling for the lawful purpose of arresting the plaintiff, the arrest without a warrant would have been lawful if they had stayed outsidethe dwelling. To this end, see R. v.

Evans, (SCC), [1996] 1 S.C.R. 8, where the Supreme Court of Canada stated that“the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock” (at para. 6). Thisimplied licence to members of the public, which includes police officers, is to approach the door of a dwelling and knock in order tocommunicate with the occupant(s). As long as it is for a lawful purpose, there is no trespass. [116] It is helpful to summarize the factual matrix of this case.

The police officers had the legal authority to arrest the plaintiff;they had the legal authority to enter upon the plaintiff’s property; they attended to the back door of his dwelling to communicate withhim for the specific purpose of arresting him; they attended to his dwelling in the middle of the night; an occupant of the dwellinganswered the door; the police officers told the occupant that they were attending to arrest the plaintiff and asked if the plaintiff wasthere; that occupant said that the plaintiff was there and that he would go and get him; that occupant gave the police officers permissionto enter into the doorway of the dwelling; the police officers believed that that occupant had the authority to allow them to enter into thedoorway; they never left the doorway and waited for the plaintiff to attend there; when the plaintiff attended, they advised him that theywere there to arrest him for a domestic assault; they advised him of his Charter rights; they took out handcuffs; they did not place themon too tightly around his wrists; they did not use excessive force; and, the occupant who answered the door was an overnight guest.

Iwill accept, without deciding, that this overnight guest did not have a sufficient privacy interest in the dwelling to grant permission to thepolice officers to enter the dwelling. [117] The narrow issue before the trial judge was whether the last fact (being allowed into the doorway of the dwelling by anovernight guest) caused the police officers’ legal status in the dwelling to change from invitees to trespassers and for the arrest to changefrom a lawful arrest to an unlawful one.

The trial judge concluded first, that the warrantless arrest of the plaintiff in his dwelling was notunlawful by virtue of the consent given by the overnight guest (who knew the police were there to arrest the plaintiff and appeared tomake the decision to assist them by going to get him) and second, that, if he was wrong on the consent question, that the police officerswere protected from civil liability by virtue of s. 25(1)(

b) of the Code because their error, with respect to the validity of the consent, wasa reasonable mistake of fact. [118] As my colleague stated, the critical issue on this appeal is whether the trial judge erred when he concluded first, that thewarrantless arrest of the plaintiff in his dwelling was not unlawful by virtue of the consent given by the overnight guest and, second, thatif the police officers entered the dwelling without first obtaining a proper consent, they were protected from civil liability by s. 25(1)(b)of the Code because this was a mistake of fact. [119] My colleague concludes that, because the police officers entered the dwelling without the consent of a person with first, areasonable expectation of privacy and, second, an informed consent, they were trespassers, thereby making their arrest unlawful.

He alsoconcludes that s. 25(1) does not afford a defence to the police officers because they did not have a valid and informed consent to enterthe dwelling for the purpose of arresting the plaintiff. [120] The law is clear that, as the police officers did not have a R. v. Feeney, (SCC), [1997] 2 S.C.R. 13warrant (an arrest warrant authorizing entry in a dwelling), they could not enter the dwelling without first obtaining the informed consentfrom a person having a reasonable expectation of privacy in it.

I will accept, without deciding, my colleague’s conclusion that, theovernight guest was not a person with sufficient authority to grant access to the dwelling and, as a result, the police officers could notlawfully arrest the plaintiff in his dwelling.

However, and with respect, I cannot accept my colleague’s conclusion that the trial judgeerred in law when he found that, in the circumstances of this case, the police officers could be afforded the protection from civil liabilitypursuant to s. 25(1). [121] The basis for the trial judge’s conclusion was that the police officers’ entry into the home, in the circumstances of thiscase, was a reasonable mistake of fact and, as such, triggered s. 25(1) protection.

My colleague states that the trial judge’scharacterization that the police officers’ mistake was one of fact and not law was an error in law, because the question of whether aconsent is valid is a question of law, not fact. [122] I respectfully disagree. Like my colleague, I rely on Hudson v. Brantford Police Services Board (2001), (ON CA), 150 O.A.C. 87, not for its ultimate conclusion on the facts of that case, but on the legal analysis found therein. Hudsonis easily distinguishable on the facts. In that case, Hudson’s mother answered the door. She told them that she would go get her son,who was sleeping.

The trial judge found as a fact that no consent to enter was given to the police officers. Despite this, they entered thedwelling, went to Hudson’s bedroom, shook him awake, and, after a brief scuffle, arrested him. The police officers had the mistakenbelief that they could lawfully enter the dwelling without any consent and arrest Hudson. Clearly, this mistaken belief (that no consent isrequired before entering a dwelling) raises a question of law as it is not inextricably linked to any particular facts of a case.

It also leadsto the conclusion that the police officers’ troubling mistake as to the state of the law was not reasonable. [123] As Rosenberg J.A. explained in Hudson, s. 25(1) affords a police officer protection from civil liability for mistakes of fact,if he or she “acts on reasonable grounds.” He explains (at para. 24): …. In effect, s. 25(1) protects the officer from civil liability for reasonable mistakes of fact and justifies the use

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