R. v. Alexson (T.L.), 2015 MBCA 5

Citation: R. v. Alexson (T.L.), 2015 MBCA 5 Date: 20150121 Docket: AR13-30-08020 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Appellant (Appellant) Appellant ) ) No appearance ) for the Respondent ) TERENCE LEE ALEXSON ) Appeal heard: ) October 24, 2014 (Accused) (Respondent) Respondent ) ) Judgment delivered: ) January 21, 2015 CHARTIER C.J.M. Introduction [ 1 ] The respondent was charged with assaulting a police officer engaged in the execution of his duty. He was acquitted at trial. The Crown appealed but was unsuccessful before the

summary conviction appeal judge (the SCA judge). The Crown now appeals to this court. [ 2 ] This appeal raises important questions. At a broader level, it raises the issue of the proper balance between an individual’s right to live free from state interference within the sanctity of one’s home and society’s interest to live in a safe community. At a narrower level, this appeal raises the question of the scope of the police authority to enter a home and, if necessary, remove persons in order to deal with domestic violence situations. Overview of the Facts and Earlier Proceedings [ 3 ] The facts are not in dispute.

The police were asked to respond to a 911 hang-up call made at approximately 4 :00 a.m. When they arrived, and before they could make their presence known, they saw and heard, through the living room window, the respondent screaming at a woman (who turned out to be his wife) and a child, that he was “pissed off.” The officers concluded that the wife and child appeared to be terrified as they were clinging to each other. The officers immediately banged on the window and door. The wife ran to let them in.

She implored the officers to “Please take him away.” Upon entering the home, t he officers noted that the respondent smelled strongly of alcohol and concluded that he was likely intoxicated. Their presence did not deter the respondent’s belligerent conduct. He became verbally abusive to both the officers and his wife. [ 4 ] When the officers asked the wife to take her child to another room, the respondent got up as if to go after her and the child. The officers told him to calm down. The officers then asked his wife to get him some clothes, as the respondent was only wearing underwear.

While putting on his clothes, the respondent continued to yell profanities at the officers. Despite repeated attempts to calm him down, the respondent clenched his fists and took up a fighting stance towards the officers. They concluded that they would have to intervene out of concern for the safety of the wife and child as well as their own safety. The officers advised the respondent that, because he was intoxicated, he would be taken into custody.

They took hold of the respondent, spun him around, pushed him to the ground and handcuffed him. [ 5 ] The officers testified that “by no means” could they let the respondent stay in the home. Their intention was to get the respondent out of the house for the safety of the wife and child and bring him to a non-medical detoxification centre where he could sober up and then be released.

When they tried to place him in the police cruiser car, he braced himself against the back door and kicked one of the officers in the jaw with his steel-toed boot, saying, after the kick, “I gotcha.” He was arrested for assaulting a peace officer. [ 6 ] As already stated, there is no disagreement as to the factual background. The trial judge recognized that this was a difficult situation for the officers and that the incident escalated very quickly.

However, he was of the view that the officers should have done more to resolve the matter and that by taking the respondent into custody they “clearly just inflamed the situation.” The trial judge

held that the evidence before him could not lead him to conclude that the respondent was about to commit an assault in the home. Hetherefore found that the officers were not acting in the execution of their duty when they forcibly took the respondent out of the home.

As a result, despite finding that the respondent had deliberately kicked one of the officers, the trial judge acquitted him of the charge ofassault upon an officer “engaged in the execution of his duty.” [7] On appeal, the SCA judge stated that, while the trial judge may have been guilty of “Monday morningquarterbacking” (at para. 27) proscribed by the Supreme Court of Canada in R. v.

Cornell, 2010 SCC 31 at para. 24, [2010] 2 S.C.R. 142,he did not err in holding that the officer was not lawfully acting in the execution of his duty or that he lacked reasonable grounds tobelieve an offence or breach of the peace was likely to occur.

The SCA judge also concluded that the forcible removal of the respondentfrom his residence amounted to police assault and that the respondent was justified to use reasonable force (at para. 31): Finally, although the trial judge did not say so, implied in the fact that … 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. [emphasis added] [8] The Crown now appeals the SCA judge’s dismissal of the appeal against the trial judge’s acquittal. Issues and Standard of Review [9] The appeal to this court is from the judgment of the SCA judge, not the trial judge (see R. v. Langlois (D.J.), 2008MBCA 72, 228 Man.R. (2d) 256; and R. v. Emery (1981), (BC CA), 61 C.C.C. (2d) 84 (B.C.C.A.), leave to appeal toS.C.C. dismissed, [1981] S.C.C.A. No. 72 (QL)). The Crown was granted leave to appeal to this court on the following two questions oflaw: 1.

Did the SCA judge err in law in holding that the officers were not lawfully acting in the exercise of their duty when they attempted toremove the respondent from the home? 2. Did the SCA judge err in law in holding that the officers lacked reasonable grounds to believe an offence or breach of the peace waslikely if they did not intervene? [10] In the context of criminal law, the issues raised are questions of law and are to be reviewed on the standard ofcorrectness (see R. v.

Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527). [11] I note that the respondent did not attend the leave to appeal hearing, although duly served and aware of the fact that theleave application would proceed in his absence. He also did not attend the appeal hearing despite being served. A few days after thisappeal hearing, a person identifying himself as the respondent telephoned the Court of Appeal Registry Office to inquire about theoutcome of the appeal. He was told that the court had reserved judgment.

Analysis Issue 1: Did the SCA judge err in law in holding that the officers were not lawfully acting in the exercise of their duty when theyattempted to remove the respondent from the home? [12] In this case, the SCA judge concluded that the trial judge did not err in law when he found that the officers were notlawfully acting in the exercise of their duty when they forcibly removed the respondent from the home. For the reasons that follow, Idisagree. [13] Unfortunately, domestic violence incidents like this one are often before the courts.

What are officers to do when theybelieve a belligerent and intoxicated person poses a danger to others in the home? Do they arrest that person and risk being assaultedwith impunity and sued in civil court for unlawful arrest; or, do they leave and risk being blamed if another member of the household ishurt because they did not remove that person?

This appeal provides this court with an opportunity to clarify the scope of police authorityto enter the home and deal with such situations. [14] No case law need be cited for the fundamental proposition that an individual’s home deserves special protection frompolice intrusion. The sources of legal authority for police to enter a home will typically arise through statute, common law or by theconsent of a person with the authority to grant access. In this case, the officers were investigating a 911 hang-up call. When theyattended to the home, they knocked on the door and a woman let them in.

The circumstances of this case did not allow the officers toascertain whether she had the authority to do so. They were now in the home and had to rely on their experience and judgment to dealwith a potentially volatile situation. [15] The question remains: by what right were the officers in the home?

When police action constitutes a prima facieinterference with a person’s liberty or property, the two-pronged Waterfield/Dedman test provides useful guidance as to whether theofficers had the authority to enter the home for investigatory purposes and were thereby lawfully acting in the exercise of their duty (R. v.Waterfield, [1963] 3 All E.R. 659 (Ct. Crim. App.); and Dedman v. The Queen et al., (SCC), [1985] 2 S.C.R. 2).

[16] At the first stage, it must be determined whether the entry in the home to deal with the 911 call fell within the generalscope of any duty imposed on the police by statute or at common law. The Police Services Act, C.C.S.M., c. P94.5 (the PSA), provides ats. 24(1) that an officer has all the powers and duties of a peace officer at common law and at s. 25 that the duties of an officer includepreserving the public peace and preventing crimes and offences.

As well, under the ancillary common law powers and duties, an officermust preserve the peace, prevent crime and protect life and property (see Dedman at para. 14; and R. v. MacDonald, 2014 SCC 3 at para.35, [2014] 1 S.C.R. 37). [17] As stated above, the police were investigating a 911 hang-up call that caused them to be in the middle of a volatiledomestic violence situation. This is very similar to the fact situation found in R. v. Godoy, (SCC), [1999] 1 S.C.R.311.

In that case, the Supreme Court of Canada held that the police officers had the authority to forcibly enter the home without awarrant to investigate a 911 hang-up call and to provide such assistance as may be required. This authority was not limited to 911 hang-ups. It also extended to situations where it could be inferred that the 911 caller was or could be in some distress (at para. 16). However,their authority to enter the home was limited to addressing the safety concerns of the residents and did not extend to a right to search thehome or otherwise intrude on a resident’s privacy (at para. 22).

In Godoy, the investigation led to an arrest of one of the occupants in thehome. It is worth noting that ss. 24(1) and 25 of the PSA are very similar to the Ontario legislation at issue in Godoy. [18] In light of Godoy, there can be no question that the officers in this case had the authority to enter the home toinvestigate the reason for the 911 call, irrespective of whether the person that let them in had the authority to do so. In fact, they couldhave used reasonable force to enter to ascertain the health and safety of the 911 caller, had it been required (see Godoy at paras. 22-23).

Their investigation, as brief as it was, led them to believe, based on their judgment and experience, that an assault on the wife or childwas about to occur. As a result, they decided to forcibly remove the respondent from the home. [19] This brings me to the second part of the two-pronged test. It must be determined whether this forcible removal wasjustifiable in the circumstances. In Godoy, the Supreme Court of Canada set out a number of factors to be weighed to balance the policeduty against the liberty in question.

These factors have recently been reframed by the Supreme Court of Canada in MacDonald, at para.37, to include:

a) the importance of the performance of the duty to the public good;

b) the necessity of the interference with individualliberty for the performance of the duty; and

c) the extent of the interference with individual liberty. These factors are to be weighedtogether to ascertain if the police action was “reasonably necessary” (MacDonald at para. 32). [20] The justifiability of the officers’ conduct must always be measured against the unpredictability of the situation theyencounter and the realization that volatile circumstances require them to make quick decisions (see R. v. Golub (D.J.) (1997), (ON CA), 102 O.A.C. 176 at paras. 44-45, leave to appeal to S.C.C. dismissed, [1997] S.C.C.A. No. 571 (QL); andMacDonald at para. 32).

The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent andintoxicated persons might harm other members of the household or might take out their anger against the officers is not governed byclearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful.

AsCromwell J. explained in Cornell, judges who review the decisions of officers should be slow to intervene on the basis of hindsight (atpara. 24): Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot beexpected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC38, [2003] 2 S.C.R. 3, at para. 73; Crampton [2005 ABCA 81, 363 A.R. 216], at para. 45.

It is often said of security measures that, ifsomething happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-factassessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment indifficult and fluid circumstances.

The role of the reviewing court in assessing the manner in which a search has been conducted is toappropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Mondaymorning quarterback. [emphasis added] [21] The Ontario Court of Appeal, considered the justifiability of police conduct in R. v. Sanderson (D.W.) (2003), (ON CA), 170 O.A.C. 285. In that case, the officers entered the accused’s home against his will to retrieve propertybelonging to his girlfriend. When the accused was asked to move to allow his girlfriend to do so, he refused.

A scuffle ensued resultingin the accused being charged with obstruction and assault while resisting arrest. Applying the Waterfield/Dedman test, MacPherson J.A.held that the officers were fulfilling their “common law and statutory duties of protecting property and assisting a victim of crime” (atpara. 41) and that the police action was a justifiable use of their powers.

He also stated that the test was not whether the destruction ofthe girlfriend’s property “appear[ed] to be imminent” (at para. 38), but rather whether the police action was directed towards legitimatepurposes that complied with the Waterfield/Dedman test. [22] As stated above, in this case, the duty being performed was preserving the peace and preventing crime by addressingthe safety concerns of the wife and child. The officer testified that he was taking the respondent to a detoxification centre to prevent himfrom assaulting them and to sober up. He was not going to charge him with an offence.

A cumulative assessment of the relevant factorssatisfies me that the arrest and detention were reasonably necessary for the carrying out of the duty to preserve the peace and preventcrime. It was a preventative and restrained measure taken to protect other members of the household. The nature and extent of theinterference with the respondent’s liberty was limited to the time it took for him to sober up. It was also a reasonable interference thatserved an important public purpose.

As was explained by Lamer C.J.C. in Godoy (at para. 21): Further, the courts, legislators, police and social service workers have all engaged in a serious and important campaign to educatethemselves and the public on the nature and prevalence of domestic violence. One of the hallmarks of this crime is its private nature. Familial abuse occurs within the supposed sanctity of the home. While there is no question that one’s privacy at home is a value to bepreserved and promoted, privacy cannot trump the safety of all members of the household. ….

[23] Considering the totality of the circumstances, I conclude that the officers were acting in the lawful execution of theirduties when they removed the respondent from the home without a warrant and that the SCA judge erred in law when she foundotherwise. Issue 2: Did the SCA judge err in law in holding that the officers lacked reasonable grounds to believe an offence or breach of the peacewas likely if they did not intervene? [24] The police power to arrest people without a warrant is not without limits.

It is governed by a requirement which servesto protect a person’s liberty against unwarranted interference from the state: there must be “reasonable grounds” upon which to base thearrest. Section 495(1)(

a) of the Criminal Code (the Code) gives officers this power when they believe, on reasonable grounds, that aperson “is about to commit an indictable offence.” This requirement carries both a subjective and objective component: was theofficer’s subjective belief that the respondent was about to assault one of the occupants of the home objectively reasonable in thecircumstances? See R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. [25] In this case, the trial judge held that the officer did not have reasonable grounds to believe that the respondent wasabout to commit an assault.

On appeal, the SCA judge relied on the imminent and substantial risk test found in Brown et al. v. DurhamRegional Police Force (1998), (ON CA), 116 O.A.C. 126 at para. 74, to decide whether the trial judge erred in thisregard.

She concluded in her reasons that, because the respondent’s conduct did not present an “imminent and substantial threat of someact of violence” (at para. 28), the trial judge was correct to find that the officer lacked reasonable grounds to believe an offence wasabout to be committed. [26] In my view, and, as I will explain, the test found in Brown has no application when considering whether an officer hasreasonable grounds to believe that a person is “about to commit” an assault. Its use here amounted to legal misdirection. Under s.495(1)(

a) of the Code, officers do not have to wait until a person overtly threatens or becomes very violent before intervening. Thethreshold is much lower. In Shepherd, the Supreme Court of Canada reiterated that the reasonable grounds threshold is relatively low. An officer “need not demonstrate a prima facie case” (at para. 23). See also R. v. Jacob (J.A.), 2013 MBCA 29 at paras. 24-34, 291Man.R. (2d) 135. What is required is that the officer’s belief that an assault was about to occur be more likely than not (again seeStorrey).

Moreover, the evidence that can form the basis for the officer’s reasonable grounds can be hearsay evidence (see Eccles v.Bourque et al., (SCC), [1975] 2 S.C.R. 739; and R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at 279). [27] In this case, the subjective element is not in dispute.

The officer’s uncontradicted evidence was that he believed that itwas necessary to remove the respondent from the residence to protect the safety of the wife and child and that had he not taken thataction, “Either [one of them] would’ve been assaulted.” For the reasonable grounds threshold to be met, it is necessary that thesubjective belief be “objectively supported on the facts” (Shepherd at para. 23). [28] In my view, the SCA judge erred in law in holding that the police lacked reasonable grounds to believe an offence orbreach of the peace was likely if they did not intervene.

There was ample evidence to meet the requisite threshold and to objectivelysupport the officer’s subjective belief that the respondent was about to commit an assault on either the wife or child.

Someone had called911 and it can reasonably be inferred that it was the wife; the respondent was seen screaming at them; he was yelling at them that he was“pissed off”; he was intoxicated and undeterred by the police presence; he attempted to go after the wife and child when the officers sentthem to the other room; and he clenched his fists and took a fighting stance against the officers. [29] In the circumstances, I would conclude that the officer had reasonable grounds to arrest the respondent for an assaultabout to be committed.

In light of this conclusion, it is unnecessary to decide, alternatively, whether by statute or common law, therespondent could have been arrested for a breach of the peace under s. 31 of the Code. I simply note that, while s. 31 requires the breachto have already occurred, at common law an arrest for an anticipated breach of the peace can be made (see Hayes v.

Thompson et al.(1985), (BC CA), 18 C.C.C. (3d) 254 (B.C.C.A.)). [30] As there is no dispute as to the facts, and in light of the trial judge’s finding that the respondent had deliberately kickedthe officer when he was attempting to place him in the cruiser car, I would conclude that the offence of assaulting a peace officerengaged in the execution of his duty is made out.

I would order that a conviction be entered against the respondent. [31] In the result, I would overturn the acquittal, substitute a conviction and remit the matter to the trial judge with thedirection that he impose a sentence that is warranted in law. C.J.M. I agree: J.A. I agree: J.A.