Beaulieu et al v Winnipeg (City of) et al, 2022 MBCA 81

Citation: Beaulieu et al v Winnipeg (City of) et al, 2022 MBCA 81 Date: 20221011 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre Docket: AI19-30-09379 ) BETWEEN : ) H. I. Schachter and ) K. Lewis OLA CHARLENE BEAULIEU, ANDREW ) for the Appellant ALBERT BEAULIEU, KYRA ANDI ) The City of Winnipeg BEAULIEU and KYUSS BEAULIEU ) ) (Plaintiffs) Respondents ) ) J. B. Harvie and - and - ) D. C. Mazur ) for the Appellant THE CITY OF WINNIPEG ) J. Macumber ) (Defendant) Appellant ) ) - and - ) R. I. Histed ) for the Respondents J.

MACUMBER ) ) (Defendant) ) ) - and - ) Appeals heard: ) February 2, 2022 Docket: AI19-30-09383 ) BETWEEN : ) ) Judgment delivered: OLA CHARLENE BEAULIEU, ANDREW ) October 11, 2022 ALBERT BEAULIEU, KYRA ANDI ) BEAULIEU and KYUSS BEAULIEU ) ) (Plaintiffs) Respondents ) ) - and - ) ) j. macumber ) ) (Defendant) Appellant ) ) - and - ) ) THE CITY OF WINNIPEG ) ) (Defendant) ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , these appeals were heard remotely by videoconference.

On appeal from OCB et al v The City of Winnipeg , 2019 MBQB 84 ; and 2019 MBQB 133 LEMAISTRE JA [ 1 ] The City of Winnipeg (the City) and J. Macumber (Macumber) (collectively, the defendants) appeal the trial judge’s decisions finding them jointly and severally liable to Ola Charlene Beaulieu (Ola), Andrew Albert Beaulieu (Andrew), Kyra Andi Beaulieu (the daughter) and Kyuss Beaulieu (the son) (collectively, the plaintiffs) for torts committed by members of the Winnipeg Police Service (WPS) in responding to a disturbance call at the Clarion Hotel (the hotel) on December 26, 2014.

Macumber seeks to file further evidence on the appeal. [ 2 ] The plaintiffs cross appeal the trial judge’s finding that the son was not falsely imprisoned, as well as the award of damages. [ 3 ] In my view, material evidence regarding the officers’ subjective intention when entering the hotel room was not before the trial judge. This led him to misconstrue the evidence and make negative credibility findings against them, and resulted in his conclusion that the officers’ entry into the hotel room was unlawful.

The trial judge’s finding that the entry was unlawful materially affected the result at trial. [ 4 ] For the following reasons, I would order a new trial. Therefore, I need not address the remaining grounds of appeal and the cross appeal. I would also invite the parties to provide written submissions on costs. Background [ 5 ] On December 26, 2014, the plaintiffs and Cheyenne Mills (the friend) were staying in room 220 at the hotel. A woman staying in the room next door called 911 to report that a male, who turned out to be Andrew, had been knocking on doors trying to get into other rooms.

She said that the male was banging on her door and yelling and that she was “very scared”. [ 6 ] Two police units responded to the call. While they were on their way to the hotel, the 911 caller reported that the male was no longer in the hallway but was possibly in a room nearby because she could hear him yelling through the walls.

Meanwhile, the WPS received another 911 call from hotel staff and were told that the male had returned to his room and had been let in by his children. [ 7 ] Constable Powell and Macumber, also a WPS constable, were the first police officers to arrive at the hotel in response to the 911 calls, which they described as a disturbance call. At the trial, they testified that they spoke to two hotel employees who told them that the male in room 220 was causing the disturbance and they wanted him removed from the hotel.

The hotel staff had tried to calm the disruption, but the male ignored them and continued banging on doors and intimidating other hotel guests. The employees advised them that, in addition to the male, there was a female and three teens staying in the room and they were all smoking marihuana and appeared intoxicated. [ 8 ] Patrol Sergeant Cote and Cst. De Groot were the second WPS unit to respond to the call. They testified that they met Cst. Powell and Macumber on the second floor of the hotel and were briefed by them about the information they had received from the hotel staff.

As the four officers approached room 220, they said that they heard loud noises and yelling. At the door of the hotel room, they smelled marihuana smoke. Constable Powell knocked on the door of the hotel room and announced the presence of the WPS several times. Shortly thereafter, the hotel room went quiet and, after approximately 30 seconds, the door opened. [ 9 ] The officers testified that, when the door opened, Andrew was standing in the doorway. They observed that he was intoxicated and wearing only wet swim trunks. They said that he was immediately aggressive and hostile.

Constable Powell attempted to explain the reason for their attendance to Andrew. He said the hotel staff were concerned about “the disruptive behaviour, other guests being disturbed, [and] that they weren’t cooperating with the hotel staff asking them to stop”. Constable Powell also said that the police were concerned “for the well-being of what was believed to be children inside of the suite and smoking marihuana.” [ 10 ] The officers testified that, while Cst. Powell tried to explain the reason for the police presence, Andrew clenched his fists, yelled, and pointed at him.

He said, “do you want to see what I can do to you.” The third time that Cst. Powell explained why they were there, Andrew moved towards him, refused to back up when he was instructed to do so and said, “This is [a] fucking dangerous mistake. You made a fucking mistake. I’ll show you. You want to see who the fuck I am.” In response to Andrew’s aggression and threats, Cst. Powell said that he pushed him backwards. [ 11 ] Patrol Sgt. Cote testified that, by this point, he had observed that there were individuals who appeared to be minors in the back of the hotel room.

He also saw empty alcohol containers and smelled marihuana smoke coming from within the hotel room. Based on the information known to him, which included the information from the hotel staff and Andrew’s aggressive behaviour towards Cst. Powell, and because the officers were unable to communicate with Andrew and ascertain the well-being of any minors in the hotel room from the hallway, Patrol Sgt. Cote decided that the officers needed to enter the hotel room to make sure its occupants were safe. Therefore, he said that he instructed the other officers to enter the hotel room, which they did. While initially Csts.

Powell and De Groot and Patrol Sgt. Cote stayed near the doorway, Macumber went into the hotel room to see past a wall and ensure there was no one behind it. While doing so, he asked, “Everybody here smoking marihuana?” [ 12 ] After the officers entered the hotel room, various physical altercations occurred between the plaintiffs and the police officers. These altercations resulted in injuries to some of the parties. The plaintiffs sued the City and Macumber for various torts they

alleged were committed as a result of and after the officers’ entry to the hotel room. The WPS charged Andrew and Ola with offences under the Criminal Code (the Code ), and the daughter and the friend with offences under the Code and the Controlled Drugs and Substances Act , SC 1996, c 19 . The Crown entered stays of proceedings on all of the charges except one: Andrew pleaded guilty to a charge of causing a disturbance. The Trial [ 13 ] At the trial, there was significant dispute between the parties about what happened when the police arrived at the door to room 220.

The police officers testified that they heard loud noises and smelled burnt marihuana coming from the hotel room as they approached it. They said that initially they were there to investigate the disturbance call but, after speaking with the hotel staff, they were also concerned about the well-being of minors they believed were in the hotel room. The police described Andrew as intoxicated, belligerent and aggressive. They said that they tried unsuccessfully to reason with him and entered the hotel room after being directed to do so by Patrol Sgt.

Cote. [ 14 ] Macumber testified that, when the daughter came at him with a cell phone and touched him with it, he grabbed it from her and yelled at her to back off. She came at him a second time, struck him and knocked his radio off his duty belt and onto the floor. In response, he pushed her backwards. After he pushed the daughter, Ola struck him. He responded by striking Ola to fend off her attack. When Andrew saw this, he attempted to strike Macumber, but was restrained by Csts. Powell and De Groot.

Macumber said that he used reasonable force in accordance with his training to defend himself against the daughter and Ola. [ 15 ] The plaintiffs gave an entirely different version of the events. They said that they had been told by hotel staff the police were on their way and that they waited quietly in the hotel room for the police to attend. They denied that anyone had been smoking marihuana in the hotel room although Andrew testified that he smelled marihuana smoke on somebody in the hotel room.

Ola testified that she opened the door in response to the knock and the police officers walked right into the hotel room. The daughter and the friend agreed with her on this point. [ 16 ] The daughter testified that, as the officers started coming into the hotel room, she began to record the events on her phone. The brief, 10-second recording (the phone video) was entered as an exhibit and viewed repeatedly during the witnesses’ testimony. The daughter said that Macumber approached her and grabbed the phone from her.

At this point, the friend began recording the events with her iPad (the iPad video) (collectively, the videos). The daughter denied striking Macumber, as did Ola, who said that all she did was run up to him and ask him what he was doing to her daughter before he knocked her unconscious. [ 17 ] Andrew acknowledged having a heated exchange with hotel staff members, but claimed that it was because he had been accused of being an unregistered guest. He also admitted accidentally banging on the neighbour’s door.

He claimed that the neighbour “responded” and that they had a conversation in which he asked her to call the manager for him and thanked her for agreeing to do so. He denied that he was inebriated or irate or that anyone was yelling in the hotel room before the police arrived. He testified that he opened the door for the police and, in response to Cst. Powell’s inquiry, he denied causing a disturbance in the hallway; he said it was people playing soccer in the hall. [ 18 ] Andrew claimed that, all of a sudden, Cst. Powell shoved him backwards and the police entered the hotel room.

After one of the officers “slammed” the daughter into the desk, he “asked politely to have the handcuffs put on” him. He said that Macumber sent Ola “flying across the room” and that Macumber and Csts. Powell and De Groot punched him at least 160 times. He also claimed that Cst.

Powell drank a shot from a bottle of alcohol in the hotel room and that Macumber tried “to get a blow job from [Ola] while [she was] half knocked out.” The Trial Judge’s Decisions [ 19 ] While acknowledging that the phone video provided “a small window into what was happening in the room”, the trial judge found that it was “entirely inconsistent” with the officers’ testimony ( OCB et al v The City of Winnipeg , 2019 MBQB 84 at para 41 ( Beaulieu #1 )).

In his view, the phone video showed that, when the officers entered the hotel room, the plaintiffs were calm; they were not yelling or “putting cell phones into their faces” ( ibid ). He also found that there was “no evidence at all that there was any inquiry regarding the well-being of minors” and that this “seriously undermine[d] the credibility of the WPS officers regarding their reasons for entering the hotel room” (at para 42).

The trial judge concluded that the phone video “clearly” showed that Macumber “calmly and deliberately walked up to [the daughter] and took the phone from her hand” (at para 40). [ 20 ] The trial judge rejected the officers’ evidence regarding their reasons for entering the hotel room and found that this significantly impacted their overall credibility. He stated (at paras 38, 44): . . . The video contradicts in a material and substantive way the evidence given by the defendants as to what met them as they entered the room. The chaos that they described to the court simply did not exist.

I do not accept the evidence of the WPS officers as to their reasons for entering the hotel room. Whatever the reasons were for the WPS entering the hotel room on December 26, 2014, they had nothing to do with concerns regarding minors. The WPS officers provided a version of events to the court which they hoped would justify their unlawful entry into the hotel room and provide a cover for their actions after that entry.

Having demonstrated a willingness to mislead the court on this issue, I approach the balance of their evidence with caution, especially where it differs from that of the plaintiffs and [the friend]. [ 21 ] The trial judge also stated that Macumber’s testimony “appear[ed] to be contrived in order to support the narrative that

the plaintiffs and [the friend] were the instigators and cause of the melee that evening in order to justify the actions of the WPS and inparticular, those of Constable Macumber” (at para 65). [22] Although he accepted the testimony of Ola, the daughter, the son and the friend, the trial judge approached Andrew’stestimony with caution. He concluded that it was “significantly embellished and exaggerated” (at para 60) and that Andrew’s memorywas “questionable” (ibid) due to the amount of alcohol he consumed.

He specifically rejected Andrew’s testimony that he was punched160 times after being handcuffed. [23] Based on the evidence he did accept, the trial judge found Macumber liable to the plaintiffs for breaches of theCanadian Charter of Rights and Freedoms (the Charter), battery, malicious prosecution, false imprisonment, and breaches of ThePrivacy Act, CCSM c P125 (the Privacy Act). He found the City jointly and severally liable to the plaintiffs (see section 40(1) of ThePolice Services Act, CCSM c P94.5 (the PSA)). The trial judge awarded general damages to the plaintiffs.

Based on his finding thatMacumber engaged in the improper use of his office by charging Ola with assaulting a police officer and participated in creating a falsenarrative to justify the officers’ conduct, he awarded punitive damages to Ola. He also awarded solicitor/client costs based on his findingthat the officers’ created a false narrative which they maintained during their trial testimony (see OCB et al v The City of Winnipeg, 2019MBQB 133 at para 18 (Beaulieu #2)). [24] Key to the trial judge’s decisions was his conclusion that the police officers lacked lawful grounds to enter the hotelroom.

In reaching this conclusion, the trial judge examined the law regarding police authority to enter a home for investigatorypurposes, as explained by this Court in R v Alexson (TL), 2015 MBCA 5, and applied the ancillary powers doctrine (see R v Waterfield,[1963] 3 All ER 659 (Ct Crim App); and Dedman v The Queen, (SCC), [1985] 2 SCR 2).

In doing so, he consideredwhether the police entry to the hotel room fell within the general scope of any duty imposed on them by statute or common law andwhether their actions were reasonably necessary in the circumstances. [25] Based on his finding that the police officers did not enter the hotel room to check on the well-being of minors, the trialjudge concluded that their actions were not authorized by section 21(2) of The Child and Family Services Act, CCSM c C80 (the CFSAct) and that they “were not carrying out the lawful execution of their duties and were in fact, intruders” (Beaulieu #1 at para 47).

Having found that the police officers were not authorized by law to enter the hotel room, the trial judge did not consider whether theforce used by them was reasonably necessary and proportionate (see the Code at

section 25; and R v Nasogaluak, 2010 SCC 6 at para32). The First Court of Appeal Decision [26] After the City filed its notice of appeal in which it intended to name both itself and Macumber as appellants, Macumberfiled his own notice of appeal. In addition to grounds alleging errors affecting the reliability of the verdict, Macumber’s notice of appealalleged a miscarriage of justice due to the ineffective assistance of counsel, which the City neither included in its notice of appeal norwished to pursue. Arguing that

section 40 of the PSA granted the City an assignment of Macumber’s right to defend or vested that rightin the City, the City moved to strike Macumber’s notice of appeal. [27] In Beaulieu et al v Macumber et al, 2020 MBCA 115 (Beaulieu CA #1), this Court held that, because the City refused toadvance the ground of appeal of ineffective assistance of counsel, it was in a conflict of interest and Macumber was entitled to proceedwith his appeal.

The Second Court of Appeal Decision [28] Prior to the hearing of the appeal, Macumber advised that he was no longer arguing a miscarriage of justice due to theineffective assistance of counsel.

Rather, he took the position that the City’s in-house legal counsel, who had conduct of the trial (in-house legal counsel), were in an “operative” conflict of interest and failed to represent his personal interests resulting in a miscarriage ofjustice (see Beaulieu et al v Winnipeg (City of) et al, 2021 MBCA 93 at para 8 (Beaulieu CA #2)). [29] Macumber, with the support of the City, moved to adduce further evidence on the appeal in support of his conflict ofinterest argument.

In Beaulieu CA #2, Steel JA concluded that the further evidence did not support a conclusion that in-house legalcounsel were in a conflict of interest. She also concluded that the trial record failed to demonstrate a conflict of interest.

Accordingly,the motion to admit the further evidence with respect to the conflict of interest and miscarriage of justice argument was dismissed, as wasthat ground of appeal (see para 50). [30] The motion for further evidence relating to the reliability of the trial judge’s decisions was reserved in accordance withthe procedure outlined in R v Stolar, (SCC), [1988] 1 SCR 480 (see Beaulieu CA #2 at para 65).

Further Evidence Motion [31] The decision on the admissibility of those parts of Macumber’s affidavit relating to the reliability of the verdict, as wellas the following further evidence was reserved to be addressed on the hearing of the appeal (see Beaulieu CA #2 at paras 51, 65): 1) affidavit of Ivan Cisneros; 2) affidavit of Josilena King (King); 3) the recording of King’s 911 call; 4) Constable Powell’s notes of the incident; 5) Constable Powell’s Use of Force

Summary Report regarding the incident;

6) WPS Use of Force Policy; 7) affidavit of Chris Butler; and 8) the McNeil Policy (see Public Prosecution Service of Canada, Deskbook, Catalogue No J79-2/2014E-PDF (Ottawa: PPSC,2014-2020) at

Part II, ch 2.12; and R v McNeil, 2009 SCC 3). [32] As explained in Beaulieu CA #2, the test for the admission of further evidence on appeal in a civil case, under section26(3) of The Court of Appeal Act, CCSM c C240 (the CA Act), where the issues raised do not relate to trial validity, is that set out inPalmer v The Queen, (SCC), [1980] 1 SCR 759 at 775 (at paras 55-56): In Palmer, the test for the admissibility of further evidence on a criminal appeal was stated by McIntyre J, for the Supreme Court ofCanada, as follows (at p 775): . . .

(1) The evidence should generally not be admit​ted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [McMartin v The Queen, (SCC), [1964] SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi​dence adduced at trial, be expected to have affectedthe result. . . . The overarching test is whether it is in the interests of justice to admit the further evidence. This is a discretionary decision on the part ofthe court and is determined on a case-by-case basis, with consideration of the unique content and facts of any individual case.

See also para 54. [33] In G (JD) v G (SL), 2017 MBCA 117, Mainella JA explained that, unless there has been a miscarriage of justice,evidence that was available at the time of trial should not be admitted on a motion for further evidence on appeal. He stated (at para 39): . . .

Absent a miscarriage of justice, which I have not been convinced occurred here, the principles of certainty and finality in litigation donot allow for a party to attempt to resurrect his or her case from an unfavourable ruling by proffering evidence that could have beenreadily available at trial through a motion for fresh evidence on an appeal.

Such a tactic is impermissible (see Public School Boards’Assn of Alberta v Alberta (Attorney General), 2000 SCC 2 at para 13). [34] Interestingly, in Bent v Platnick, 2020 SCC 23, although the Supreme Court of Canada found that the proposed furtherevidence could not have been adduced prior to a motion under

section 137.1 of the Courts of Justice Act, RSO 1990, c C43 to dismiss adefamation suit, Côté J, writing for the majority, suggested that the due diligence criterion should not be applied rigidly (at para 60): . . . It must not be forgotten that the due diligence factor specifically is “not a rigid one” (Kuczera (Re), 2018 ONCA 322, 58 C.B.R.(6th) 227, at para. 16) and has been held to be a “practical concept” (Calaheson v.

Gift Lake Metis Settlement, 2016 ABCA 185, 38 Alta.L.R. (6th) 30, at para. 14) that is “context sensitive” (R. v. 1275729 Ontario Inc. (2005), (ON CA), 205 O.A.C. 359,at para. 29; see also Elliott v. Sagl, 2019 ONSC 2490, at paras. 36-38 ; D. J. M. Brown, with the assistance of D. Fairlie, CivilAppeals (loose-leaf), at pp. 10-19 to 10-21). . . . [35] In that case, the context was an important factor regarding Côté J’s comments concerning the application of the duediligence criterion.

The context included “significant ambiguity surrounding s. 137.1 motions due to a lack of judicial guidance on thestandard that must be met, as well as the nature or comprehensiveness of the record that must be filed” (ibid) and the fact that the moving

party had to file his motion record within 25 days. In addition, Côté J concluded that the fresh evidence was “highly probative” (at paras 70-71) as it related directly to, and even contradicted, the motion judge’s findings, and bolstered the evidentiary record to provide the basis to legally tenable arguments. [ 36 ] Recently, in SWBM v CSM , 2021 SKCA 64 , leave to appeal to SCC refused, 39715 (21 October 2021), Tholl JA stated unequivocally that the due diligence criterion remains an important aspect of the test for the admission of fresh evidence.

He stated (at para 30): An application to admit fresh evidence is not an opportunity to rehash evidence that was already tendered at trial, fill gaps with evidence that could have been or should have been tendered at trial, or present arguments or inadmissible hearsay opinions under the guise of evidence.

The purpose of such an application is to provide the Court with highly probative evidence that was not available at the time of trial. [ 37 ] Turning to the further evidence sought to be admitted by Macumber, I find that it does not meet the due diligence criterion; all of the evidence was available and could have been adduced at trial.

Although some of the proposed evidence could corroborate the testimony of the officers regarding what occurred prior to their entry to the hotel room and refute the trial judge’s finding that they created a false narrative to support their decision to enter , as I will explain, I would order a new trial without the need to consider all of the further evidence. In my view, it is not in the interests of justice to admit the further evidence on the appeal except for paras 1, 20 and 22 of Macumber’s affidavit and Cst. Powell’s notes and Use of Force

Summary Report. [ 38 ] During cross-examination, counsel for the plaintiffs suggested to Cst. Powell that he did not make a note of his concerns for the well-being of minors in the hotel room in either his notebook or Use of Force

Summary Report and that it was a recent fabrication. During counsel’s cross-examination of Cst. Powell, the following exchange occurred: . . . Q And that -- that concern for the children, that’s not anywhere in your notes, is it? A It was in my head. I’m always concerned for the children. Q Okay. But it’s not in your notes, right? A No. Q And it’s not in your use of force report, right? A We used no force on any kids. Q And, well you, in your use of force report you do describe the situation and what happened, right? A M-hm. Yes, Sir.

Q Nothing about being concerned for the welfare of children in there, is there, in your use of force report? A No. Q Nothing in your narrative report about being there concerned for the well-being of children, right? Nothing. A We were certainly concerned for the well-being [of] children as it continued escalating.

Q The question was whether there was anything in your report about you being concerned for the well-being of children? A There is nothing that I can see in my report. Q Because that’s something that you recently fabricated, Constable. That’s something that never got mentioned in four years of this case about you being concerned for the well-being of children? A Well, first of all, we don’t write a report four years after the incident. We wrote the report while the incident was occurring. . . . [ 39 ] Counsel for the plaintiffs questioned Cst. Powell about the contents of his notebook and Use of Force

Summary Report without giving him the opportunity to look at those documents during his cross-examination, despite knowing what the documents contained. In fact, both Cst. Powell’s notes and Use of Force

Summary Report documented information about his concern for the well- being of minors. Unfortunately, Cst. Powell’s apparent inability to recall the contents of his notes and Use of Force

Summary Report four years after the events and counsel’s misrepresentation were not corrected by in-house legal counsel, leaving the trial judge with an erroneous impression. [ 40 ] Furthermore, when the trial judge asked whether the Use of Force

Summary Report was going to be entered as an exhibit, counsel for the plaintiffs objected on the basis that Cst. Powell had already testified and his examination had been concluded. The Use of Force

Summary Report was not tendered: THE COURT: So on that Use of Force, that report’s not -- is that -- that’s not being tendered as -- as an exhibit in the proceedings? I’ve heard about it a couple of times now. [IN-HOUSE LEGAL COUNSEL]: Yeah, I’m happy to tender it, My Lord. THE COURT: Yeah, I’d like to see it. [IN-HOUSE LEGAL COUNSEL]: Would you like to see it now? I’m happy to tender both at this point. A I think there’s actually two of them. [IN-HOUSE LEGAL COUNSEL]: Yes, correct. A Macumber and Constable Powell both have Use of Force reports. THE COURT: Yeah, I -- we can tender it a little bit later.

I do want to see it. MR. HISTED: The difficulty I have with Powell’s report being tendered, My Lord, is he’s already testified and we finished examining him. [IN-HOUSE LEGAL COUNSEL]: Yes.

THE COURT: Okay. So Macumber’s then? [IN-HOUSE LEGAL COUNSEL]: Yes, absolutely, My Lord. . . . [ 41 ] Despite his testimony to the contrary, Cst. Powell made a note in his notebook at the time of the incident regarding the information he received prior to attending the hotel room, which included that the male who was causing the disturbance by banging on doors and yelling was “[with] children” and that “kids” were “smoking marihuana” on the second floor. In his Use of Force

Summary Report written shortly after the incident he stated the following: . . . . . . Male had registered for a one night stay with an adult female and what appeared to be 2 adolescent females and male youth. Staff was additionally concerned as it appeared that the underage children were inebriated and smoking marihuana. . . . BEAULIEU was informed that we were checking on the well being of both himself and his family due to hotel complaints. . . . . . . [emphasis added] [ 42 ] Therefore, in my view, counsel’s questioning of Cst. Powell was unfair and the notes and the Use of Force

Summary Report would have been admissible to rebut the allegation of recent fabrication and as narrative as circumstantial evidence by providing important context for assessing the officers’ credibility (see R v Stirling , 2008 SCC 10 at para 5 ; R v Dinardo , 2008 SCC 24 at para 39 ; and R v Khan , 2017 ONCA 114 at paras 27-36 , leave to appeal to SCC refused, 37534 (3 August 2017)). [ 43 ] The trial judge made strong credibility findings against the police officers and relied on the fact that none of them had made a notation in their notebooks “that [spoke] to concerns about minors” ( Beaulieu #1 at para 43).

Despite the availability of the evidence at trial and the failure of counsel to lead it, in my view, it is in the interests of justice to admit Cst. Powell’s notes and Use of Force

Summary Report, as well as paras 1, 20 and 22 of Macumber’s affidavit. This evidence is credible, relevant and might reasonably have affected the trial judge’s view of the officers’ credibility at trial.

Issues [ 44 ] On appeal, the City argues that the trial judge erred in concluding (1) that the police officers entered the hotel room unlawfully; (2) that they did not have reasonable grounds to arrest Andrew; (3) that they committed actionable wrongs inside the hotel room; (4) that it was liable for damages, or alternatively, in his quantification of damages; and (5) that solicitor/client costs were warranted. [ 45 ] Macumber raises the following issues on appeal: (1) whether the trial judge erred in law by failing to apply the rule in Browne v Dunn (1893), [1894] 6 R 67 (HL (Eng)), permitting counsel for the plaintiffs to violate

section 20 of The Manitoba Evidence Act , CCSM c E150 , or mischaracterizing the evidence; (2) whether the trial judge erred in finding that the police fabricated evidence to justify their entry into the hotel room; (3) whether the trial judge erred in finding that Macumber entered the hotel room without lawful authority; (4) whether the trial judge erred in finding that Macumber committed actionable wrongs after entering the hotel room; and (5) quantification of damages. [ 46 ] The defendants argue that the trial judge erred in his conclusion that the police entry to the hotel room was unlawful.

They assert that the police were entitled to enter the hotel room pursuant to section 21(2) of the CFS Act and the ancillary powers doctrine. The defendants say that the trial judge inappropriately assessed the reasonableness of the officers’ beliefs that they had grounds to enter from the vantage of hindsight by focussing on what occurred after they entered the hotel room as depicted in the videos and by failing to consider all of the information known to police at the time of entry.

Finally, the defendants contend that the trial judge erred when he concluded that asking whether everyone in the room was smoking marihuana was not an inquiry related to a concern regarding the well-being of minors. [ 47 ] Macumber also argues that the trial judge erred in his credibility findings regarding the officers’ testimony and in finding that they fabricated the reasons for their entry. He asserts that most of the information known to Patrol Sgt.

Cote before he gave the direction to the officers to enter was provided by 911 callers and recorded contemporaneously in the WPS call (the call history), which was an exhibit at trial, and that this information was consistent with the information gathered or observed by the officers at the hotel. [ 48 ] In my view, the appeal turns on the trial judge’s conclusion that the police entry of the hotel room was unlawful, as well as his findings of credibility. Standard of Review

[ 49 ] The standard of review applicable in civil cases was set out by the Supreme Court in Housen v Nikolaisen , 2002 SCC 33 . The applicable standard of review for errors of law is correctness. For errors of mixed fact and law, or of fact alone, the standard of review is palpable and overriding error, unless an error of mixed fact and law involves an error relating to an extricable question of law, in which case the standard of correctness applies to that extricable legal question.

An appellate court may not interfere with a judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result (see HL v Canada (Attorney General) , 2005 SCC 25 at para 55 ). [ 50 ] Similarly, a judge’s determination of credibility is entitled to deference. An appellate court may only intervene in a trial judge’s credibility findings where there has been palpable and overriding error.

In Kionke , Steel JA stated, “If a trial judge’s credibility assessment of a witness can be reasonably supported by the record, it cannot be interfered with on appeal” (at para 20). [ 51 ] A misapprehension of evidence that goes to the core of the judge’s reasoning process may warrant appellate intervention ( see R v Sinclair , 2011 SCC 40 at paras 53-54 ). Demonstrating a misapprehension requires a plainly identifiable error and an actual mistake.

As explained by Steel JA in R v Kionke , 2020 MBCA 32 (at para 19 ): A misapprehension of the evidence may refer to a mistake as to the substance of the evidence, a failure to consider evidence relevant to a material issue or a failure to give proper effect to evidence. The error must be readily obvious ( see Sinclair at para 53 ). A misapprehension of the evidence is not to be confused with a different

interpretation of the evidence than the one adopted by the trial judge. Even if this Court would have assigned more or less weight to the evidence than the judge did, that is not a basis for this Court to interfere with his fact finding ( see R v Pelletier , 2019 MBCA 126 at para 7 ). The Law [ 52 ] The defendants argue that the police entry into the hotel room was lawful pursuant to both the CFS Act and the ancillary powers doctrine. Section 21(2) of the CFS Act [ 53 ] Section 21(2) of the CFS Act permits the police to enter a home on a reasonable belief that a child is in immediate danger or is unable to care for himself or herself and there is no responsible person present. The

section reads as follows: Entry without warrant in certain cases 21(2) Any of the persons listed in subsection (1) who on reasonable and probable grounds believes (

a) that a child is in immediate danger; or (

b) that a child who is unable to look after and care for himself or herself has been left without any responsible person to care for him or her; may, without warrant and by force if necessary, enter any premises to investigate the matter and if the child appears to be in need of protection shall (

c) apprehend the child and take the child to a place of safety; or (

d) take such other steps as are necessary to protect the child. [ 54 ] In Winnipeg Child and Family Services v KLW , 2000 SCC 48 , L’Heureux-Dubé J, for the majority, stated that the CFS Act provides for investigation when there is a report that a child may be in need of protection and that the appropriate threshold for apprehension without a warrant is serious harm or a risk of serious harm. The existence of an emergency need not be established (see para 104). See also Everett et al v McCaskill et al , 2015 MBCA 107 , in which the Court found that section 21(2) of the CFS Act encompasses situations involving potential harm in addition to actual harm (see para 97). Ancillary Powers Doctrine

[55] In the absence of statutory authority to enter the hotel room, the ancillary powers doctrine is applied to determinewhether the entry was lawful. [56] As explained in R v Wong, (SCC), [1990] 3 SCR 36, occupants of a hotel room have a reasonableexpectation of privacy similar to that of being in their own home (see p 50; see also R v Sandhu (1993), (BC CA), 82CCC (3d) 236 at 263 (BCCA)). [57] In Fleming v Ontario, 2019 SCC 45, the Supreme Court recognized that the police, in fulfilling their important duties,will sometimes have to interfere with the liberty of individuals.

It explained that, in order to determine whether the common lawauthorizes a particular police action which interferes with individual liberty, the court must apply the ancillary powers doctrine (see para43).

The ancillary powers doctrine provides that police actions which interfere with individual liberty are permitted at common law ifthey are ancillary and reasonably necessary to the fulfillment of recognized police duties (see para 45). [58] The Supreme Court in Fleming explained the two-stage framework from Waterfield to be applied when determiningwhether a particular police action that interferes with individual liberty is authorized by the common law (see Fleming at paras 46-48).

Once the police power that is being asserted and the liberty interests that are at stake have been clearly defined, the analysis proceeds intwo stages: (1) the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law policeduty; and (2) the court must determine whether the conduct involves a justifiable exercise of police powers associated with that duty. [59] At the second stage of the analysis, the court must ask whether the police action is reasonably necessary for thefulfillment of the duty.

Three factors are weighed to answer that question: (1) the importance of the performance of the duty to thepublic good; (2) the necessity of the interference with individual liberty for the performance of the duty; and (3) the extent of theinterference with individual liberty. [60] The jurisprudence indicates that courts have accepted the lawfulness of police entries into homes pursuant to theancillary powers doctrine in the case of 911 crisis calls that involve credible concerns about the health and safety of an occupantprimarily due to the actions of an alleged aggressor who is also within the dwelling.

Where a 911 crisis call is made, police will bejustified in entering the premises if they reasonably believe that the health and safety of an occupant are at risk due to an aggressor whois alleged to be within the premises. See for example, R v Godoy, (SCC), [1999] 1 SCR 311; R v Timmons, 2011NSCA 39; Alexson; R v Lowes, 2016 ONCA 519; R v Warren, 2017 MBCA 106; and R v Serban, 2018 BCCA 382, leave to appeal toSCC refused, 38402 (7 March 2019).

However, in Godoy, the Supreme Court held that reasonable alternatives to entering a home withforce ought to be engaged if the investigation into the 911 call can be done without entering a home with force. [61] Courts have also accepted that the police are justified in entering a dwelling in cases where there was no 911 crisis call,provided they subjectively believe that their life or safety or that of others within the dwelling are at risk, the entry is reasonablynecessary to eliminate an imminent threat to safety, and the necessity of the police action is reasonable and objectively verifiable.

See,for example, R v Nicholls (1999), (ON CA), 139 CCC (3d) 253 (Ont CA); R v Pillay, 2004 CarswellOnt 2384 (SupCt J), aff’d 2007 ONCA 702; R v MacDonald, 2014 SCC 3; Poirier c R, 2019 QCCA 131; and R v Garland, 2019 ABCA 479. [62] In Alexson, Chartier CJM explained that courts must be careful, when reviewing police conduct on the basis ofhindsight, not to second-guess decisions made based on experience.

He stated (at para 20): The justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and therealization 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); and MacDonald at para. 32). Thepoint is: officers have a duty to protect and a right to their own safety.

Assessing whether belligerent and intoxicated persons might harmother members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is anexercise in discretion and judgment, often guided by experience. Second-guessing is not helpful. As Cromwell J. explained in Cornell[R v Cornell, 2010 SCC 31], judges who review the decisions of officers should be slow to intervene on the basis of hindsight (at para.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. See also paras 21-22. [63] The nature of child protection situations necessarily provides context for the evidentiary analysis when determiningwhether the state’s actions are authorized by law. Cameron JA explained this in R v RMJT, 2014 MBCA 36 in the following way (atpara 96):

In terms of the operational context of child protection proceedings, in K.L.W , the Supreme Court of Canada indicated that there are specific evidentiary difficulties and time pressures associated with child protection situations and has recognized that there is a need for preventative as well as protective state intervention with respect to children (see para. 99). In particular, the court noted that the evidentiary difficulties in the child protection context arise from the fact that child protection situations almost always occur within the intimacy of private homes (see para. 100).

Furthermore, the court noted that child protection workers are inevitably called upon to make highly time-sensitive decisions in situations where it is often difficult to determine whether a child is at risk of imminent harm or at risk of non-imminent, but serious harm (see para. 100). Finally, the Supreme Court of Canada indicated that it is also important to recognize that the state must be able to take preventative action to protect children, meaning that the state should not always be required to wait until a child has been seriously harmed before being allowed to intervene (see para. 102).

Discussion [ 64 ] The trial judge’s finding that the police entered the hotel room unlawfully is a finding of mixed fact and law reviewable for palpable and overriding error. [ 65 ] In this case, the trial judge correctly recognized the applicability of the ancillary powers doctrine in determining the lawfulness of the police entry into the hotel room. However, he rejected the testimony of the officers that they entered due to concerns for the well-being of minors within the hotel room. Having done so, he did not consider the information known to the officers and, in particular, Patrol Sgt.

Cote, who gave the order to enter the hotel room, or whether the police entry was authorized by section 21(2) of the CFS Act . Moreover, the trial judge was erroneously led to believe that the officers’ testimony about their concerns for the well-being of minors was a recent fabrication, and Cst. Powell’s notes and Use of Force

Summary Report were not available to provide the necessary context for assessing the officers’ credibility. [ 66 ] The trial judge rejected the officers’ testimony regarding their reasons for entering the hotel room because, on his view of the evidence, the officers made no inquiry about the well-being of minors and made no note about their concerns for minors in their notes or reports. He also rejected the officers’ testimony because he found it to be inconsistent with the videos.

After finding that the officers had “demonstrated a willingness to mislead the court on this issue” ( Beaulieu #1 at para 44), he approached the balance of their evidence with caution. [ 67 ] In my view, the trial record, when considered along with the further evidence, demonstrates that crucial evidence regarding the officers’ subjective intent supporting the reasonableness of the entry was not before the trial judge.

This evidence supports the position that he misconstrued material evidence when he concluded that the entry was unlawful. [ 68 ] The trial judge’s reasons demonstrate that his finding that the officers’ entry “had nothing to do with concerns regarding minors” ( ibid ) permeated his entire analysis of the other evidence in the trial, including his conclusions regarding the credibility of the officers and the videos. [ 69 ] First, the misrepresentation that Cst. Powell failed to note any concerns for the well-being of minors in either his notebook or Use of Force

Summary Report caused the trial judge to disbelieve the officers’ evidence that they did have such a concern. As earlier stated, this misrepresentation was crucial to the trial judge’s finding that the officers entered the hotel room unlawfully. [ 70 ] Moreover, when making this finding, the trial judge disregarded, without any analysis, the independent evidence which corroborated the information known to the officers, as well as their stated concerns.

That evidence included the call history and testimony regarding Andrew’s conduct. [ 71 ] The call history confirms the officers had received information about an intoxicated male causing a disturbance who had been let into a room by his children, after which the yelling continued.

The daughter testified that Andrew was “drunk”, the friend said he was “rowdy”, “upset” and “frustrated”, and Andrew acknowledged having a “heated” exchange with staff members. [ 72 ] In addition, the trial judge’s assessment of the officers’ credibility was negatively affected by his conclusion that they did not make any inquiry about the well-being of minors in the hotel room.

He stated (at para 42): Moreover, given their alleged concerns regarding the well-being of minors in the hotel room, one would have expected that the first inquiry of the WPS officers would have been directed towards the status of the minors, whether anyone was injured or being held against his or her will. Instead, Constable Macumber asked if everyone in the room was smoking marijuana. There was no evidence at all that there was any inquiry regarding the well-being of minors.

That these inquiries did not happen seriously undermines the credibility of the WPS officers regarding their reasons for entering the hotel room. [emphasis added] [ 73 ] The trial judge’s conclusion disregards the officers’ evidence about what Cst.

Powell said while speaking to Andrew from the hallway prior to entering the hotel room and his response. [ 74 ] Constable Powell testified that, before entering the hotel room, he explained to Andrew, more than once, the officers’ concerns for “the well-being of what was believed to be children inside of the suite and smoking marihuana.” However, Andrew appeared not to understand what he was saying and was immediately hostile and aggressive.

[75] Patrol Sgt. Cote testified that, when the officers tried to explain to Andrew why they were there, they spoke about theirconcerns for minors and their need to “make sure everybody was okay.” In addition, Cst. De Groot testified that Cst. Powell “informed”Andrew that they were there to check on the well-being of the occupants of the hotel room. She also said that the officers knew therewere minors in the hotel room and that they could see “youthful-looking individuals.” [76] In my view, the record demonstrates that there was evidence that Cst.

Powell articulated the officers’ concerns for thewell-being of minors within the hotel room, but had no opportunity to make inquiries in light of Andrew’s response.

However, the trialjudge’s approach to the officers’ testimony caused him to overlook this important evidence. [77] Furthermore, as I will explain, the trial judge’s rejection of the officers’ testimony influenced his view of the videos andled him to the erroneous conclusion that the videos were inconsistent with the officers’ evidence. [78] To begin, a video recording of an event as it happens which has not been altered is admissible evidence (see Fawley etal v Moslenko, 2017 MBCA 47 at para 82). However, care must be taken when relying on a video recording.

Factors which determinethe weight to be given to a video recording include the degree of clarity and quality of the video, as well as the duration of the recording(see R v Nikolovski, (SCC), [1996] 3 SCR 1197 at paras 28-32). A trier of fact should consider whether a videoconstitutes a fair and accurate representation of the events it purports to depict. [79] In this case, the trial judge relied on two very brief videos as evidence which he found contradicted the testimony of thepolice regarding their reasons for entering the hotel room and what occurred after their entry. [80] According to the call history, Cst.

Powell and Macumber changed their location to room 220 at 11:22 p.m. The sontestified that he called 911 after he witnessed the officers “beating up [his] parents”. The 911 call from the son was logged into the callhistory at 11:32 p.m. The phone video was under 10 seconds long and, although the trial judge stated that the iPad video was less than10 seconds long, it was 20 seconds in length. [81] Therefore, the events in the hotel room lasted at least 10 minutes, but the videos depict a mere 30 seconds of theevents.

Although he acknowledged that the phone video “lasted under 10 seconds” (at para 36) and was “a small window into what washappening” (at para 41), the trial judge did not adequately account for this in his analysis. [82] One crucial error that resulted from his failure to take appropriate care when relying on the videos occurred when thetrial judge concluded that the phone video began as the officers entered the hotel room. He stated (at para 36): . . .

As the evidence from all witnesses was that the WPS officers entered the room at the same time, and based on the fact that PatrolSargent Cote and Constable De Groot were still in the doorway when the video starts, I conclude that this video started as the WPSofficers entered the room. . . . [emphasis added] [83] This statement was wrong. The witnesses did not all testify that the officers entered the hotel room at the same time. [84] Constable Powell testified that Macumber came into the hotel room behind him. Importantly, at the beginning of thephone video, Cst.

Powell can be seen standing in the corner of the hotel room talking to Andrew, and Macumber can be seen well intothe hotel room past where Cst. Powell can be seen standing. While the phone video does show Cst. De Groot entering the hotel room, itstarts only after Cst. Powell has entered and engaged in a conversation with Andrew, and Macumber has entered and moved pastCst. Powell. [85] The phone video does not capture Cst.

Powell and Macumber entering the hotel room and is of little value as to whathappened before they entered during the time the officers said that they were at the door trying to explain to Andrew why they werethere. The trial judge erred when he concluded otherwise. [86] The trial judge also concluded that the phone video clearly showed Macumber taking the phone from the daughter’shand. However, the phone video goes black at the end and does not show Macumber taking the phone.

This is supported by counsel’sdirect examination of the daughter when he asks, “And the video cuts off towards the end, what was happening at that point?” Inresponse, the daughter testified, “Macumber walked right up to me and grabbed my phone out of my hand.” While it may have been areasonable inference on the evidence that Macumber took the phone from the daughter’s hand, this is not “clearly shown” (at para 40) inthe phone video. [87] Finally, in my view, the videos contradict the trial judge’s conclusion that the plaintiffs were not yelling at the policeand that they were calm.

The videos clearly depict both Andrew and the daughter yelling at the police. They also show Andrew’saggression, the friend approaching Macumber and becoming increasingly insistent with him, and Ola yelling at Macumber and grabbinghis arm. Furthermore, Ola testified that she yelled at Macumber and that she heard the daughter yelling, and the daughter testified thatshe heard the friend “yell out”. The evidence demonstrates that Andrew, Ola, the daughter and the friend were anything but calm. [88] The videos are both very brief and begin only after the police have entered the hotel room.

Moreover, at times, they aredark or blurry and the cameras are not focussed on the activities in dispute. In my view, the trial judge failed to consider whether thevideos fairly and accurately represented the events and his conclusion as to what the videos depict is not supported by the evidence. Thephone video does not show the moment of entry and the videos are brief, poor-quality snippets of the events that do not depict the

entirety of the events. [89] In my view, the evidentiary record does not support the trial judge’s reasons for rejecting the officers’ testimony thatthey entered the hotel room due to concerns about minors. His finding that the entry was unlawful grounded each of his conclusions,including not only the Charter breach, but also his conclusion that the defendants were liable for battery, malicious prosecution, falseimprisonment and breaches of the Privacy Act.

Therefore, his findings regarding the officers’ credibility and the lawfulness of the entrymaterially affected the result of the trial and resulted in a substantial wrong.

Remedy [90] Having found that the trial judge’s decisions resulted in a substantial wrong, the issue arises as to whether the caseshould be remitted back to trial, or whether this Court should make its own assessment of the evidence and finally determine the issues. [91] The CA Act provides this Court with the power to make a final determination of the matters at issue (at sections 26(1)-26(2)): Court may pronounce proper judgment 26(1) The court, upon an appeal, may give any judgment which ought to have been pronounced, and may make such further or otherorder as is deemed just.

Power to draw inference of fact and to give judgment 26(2) The court may draw inferences of fact not inconsistent with any finding of fact that is not set aside; and, if satisfied that thereis before it all the material necessary for finally determining the matters in controversy, or any of them, or for awarding any reliefsought, may give judgment accordingly; but, if of opinion that there is not sufficient material before it to enable it to give judgment, maydirect the appeal to stand over for further consideration, and may direct that such issues or questions of fact be tried and determined, andsuch accounts be taken, and such inquiries be made, as are deemed necessary to enable it, on such further consideration, to disposefinally of the matters in controversy. [92] Where a trial judge errs by improperly rejecting evidence, this Court may only grant a new trial if there has been asubstantial wrong or miscarriage of justice (at section 27(1)): New trial not to be granted in certain cases 27(1) A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or of theomission to take the verdict of the jury upon a question which the judge at the trial was not asked to leave to the jury, or of any omissionor irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned. [93] If the error does not materially affect all of the issues decided, this Court may direct a new trial on only those issuesaffected (at sections 27(2)-28): Judgment as to one part and new trial as to others 27(2) Where it appears that a substantial wrong or miscarriage was so occasioned, but that it affected part only of the matter incontroversy or some or one only of the parties, the court may give final judgment as to any part or any party not so affected and direct anew trial as to the other part only, or only as to the other party or parties.

New trial on any question 28 A new trial may be ordered upon any question without interfering with the finding or decision upon any other question. [94] As explained by La Forest J in Hollis v Dow Corning Corp, (SCC), [1995] 4 SCR 634, an appellatecourt may make its own determinations of a case, based on the record, where it is feasible on a practical level and in the interests ofjustice to do so (see para 33; see also Simcoff v Simcoff, 2009 MBCA 80 at para 52; and Sharbern Holding Inc v Vancouver AirportCentre Ltd, 2011 SCC 23 at paras 172, 174). [95] Some of the factors considered in the jurisprudence include the time and cost involved, the amount at issue, thecompleteness of the record, the type of evidence, the nature of the issue/error made, the lack of appeal from the appellate court’s

reassessment (except to the Supreme Court) and the positions of the parties.

See, for example, Hollis at para 33 ; Madwen Estate v Saylor , 2007 SCC 18 at paras 23-24 ; Sharbern at paras 172-74; Masterpiece Inc v Alavida Lifestyles Inc , 2011 SCC 27 at para 103 ; Mikkelsen v Truman Development Corporation , 2017 ABCA 99 at para 36 , leave to appeal to SCC refused, 37572 (16 November 2017); and West Moberly First Nations v British Columbia , 2020 BCCA 138 at paras 135-36 , leave to appeal to SCC refused, 39292 (21 January 2021). [ 96 ] The factors that weigh in favour of this Court making a decision in this case rather than sending it back for a new trial are (1) the events in question occurred in 2014, (2) the trial took place in 2018-2019, and (3) the total damages awarded were just under $100,000. [ 97 ] Despite these factors, in my view, this Court cannot give a verdict on the record in this case on any of the issues. [ 98 ] First, the evidence was primarily testimonial, and the key facts as to what happened within the hotel room were highly contested and conflicting.

Although there was some “objective” video evidence, the videos only reflected a brief portion of the time the parties were in the hotel room together, and the parties had conflicting

interpretations about what they depicted. [ 99 ] Second, the City has requested an order for a new trial in the event that the appeal is granted. [ 100 ] Third, the trial judge did not undertake an analysis of

section 25 of the Code , which protects police officers who use reasonably necessary and proportionate force while executing their lawfully authorized duties.

During his assessment of damages, he only briefly contemplated what the result might have been if he was wrong about the unlawful entry issue and he did not make specific findings as to whether the force used by the officers in the hotel room was reasonably necessary. [ 101 ] Fourth, the facts found by the trial judge, which could inform a determination of the legal issues by this Court, were clearly influenced by his rejection of the officers’ testimony about their reasons for entering the hotel room and his decision to treat the rest of their evidence with caution. [ 102 ] In my view, the factors favouring an order for a new trial outweigh those supporting a decision made by this Court.

More importantly, the issues do not simply require the application of the law to undisputed facts devoid of credibility findings (see Matchim v BGI Atlantic Inc , 2010 NLCA 9 at paras 100-103 , leave to appeal to SCC refused, 33660 (22 July 2010); and John Doe (GEB #25) v The Roman Catholic Episcopal Corporation of St. John’s , 2020 NLCA 27 at para 122 , leave to appeal to SCC refused, 39343 (14 January 2021)). [ 103 ] In the circumstances, the errors are not harmless, the result is not inevitable and the record does not contain the necessary findings to enable this Court to determine the issues in dispute.

Therefore, I would order a new trial. Conclusion [ 104 ] While I would admit paras 1, 20 and 22 of Macumber’s affidavit and Cst. Powell’s notes and Use of Force

Summary Report, in my view, it is not in the interests of justice to admit the rest of the further evidence. [ 105 ] In the result, I would order a new trial. The issue as to whether the entry was lawful, as well as all of the other issues involved in this matter are best decided by the trial judge who will have the benefit of all of the evidence called in that proceeding. Costs [ 106 ] In Beaulieu CA #2 , this Court reserved the issue of costs on the motion for fresh evidence until after the appeal hearing.

At the appeal hearing, the City stated that there was an offer to settle that, in its view, would be relevant to the determination of costs on the appeal, and sought to file written argument on costs after the determination of the appeal. [ 107 ] I would invite the parties to provide written submissions on costs on the motion for fresh evidence and the appeal in accordance with directions to be provided by the Registrar. JA I agree: JA I agree: JA