If an officer was not lawfully on the premises of the accused’s and is subsequently assaulted, the officer cannot be said to be “in the execution of his duty”

R. v. Zargar 2014 ONSC 1415 – this case was interesting in that it touched upon alot of the common law and statutory authorities that we use for entry into private premises, and while this case is out of Ontario, the principles discussed in this case have applications throughout Canada.

One of the officers involved had been a Toronto police officer for “about five years” at the time of trial. He and his partner attended at the Appellant’s condominium unit in downtown Toronto in response to a noise complaint. The officers were in uniform and they arrived at the building at about 4:00 a.m. The complainant was the building security guard and he advised the officers that he had attended at one of the units in the building and had asked the male resident to turn down the music. There had been ongoing difficulties with this resident, according to what the security guard told the officers, but they were not advised of any security concerns. The officers proceeded to the eighth floor. They could hear music coming from the unit in question as they got off the elevator. They knocked on the door and the Appellant answered. The Appellant advised the officers that he was the owner of the unit and a “discussion” or series of questions and answers ensued. The officer thought that the Appellant was “confrontational” because he replied “what for” when he asked for his identification. The Appellant had simply identified himself as the owner of the unit, but he would not give his name. The other officer explained that the officers had received a complaint to the effect that the security guard had already told the Appellant once to turn down the music as he was disrupting other residents and again the officer asked the Appellant for his identification and the Appellant “again took exception” to this request. The officer testified that the above “discussion” with the Appellant took place “in the front doorway area of the foyer”. He acknowledged that he and his partner had “passed the threshold of the door” and were “inside the unit”, standing “side by side” in the “doorway foyer of [the] apartment”. The officer was standing about a foot away from the Appellant. He estimated that he was about “one step” inside the Appellant’s condominium unit. The oficer acknowledged in his testimony that the Appellant “took exception to us being inside and he wanted to close the door”, and he said something to the effect “get out of my house”.

In his testimony, the officer agreed that the Appellant was neither under arrest, nor was he detained. He testified that, “I’m investigating at that point”. The officer felt that he had sufficient grounds to arrest for mischief and that the Appellant “had completed the offence of mischief”. However, the investigation was proceeding so that the officer could determine “whether or not I will go by way of by-law, whether I will go by way of the Form 9 release, I have different things that I can proceed with … Just because I formed the grounds doesn’t necessarily mean I have to arrest”. The officer took the view that he “was investigating a Criminal Code offence of mischief to property, I was not going to leave his residence until my investigation was complete”. He needed to know “who I was speaking to” because this person “had committed a criminal offence”. The officer did not have an opportunity to explain his view of police powers because, upon asking a second time for the Appellant’s identification, the Appellant motioned and turned, “almost like he was going to get his ID”. The officer then took a second step forward into the unit and, at this point, the Appellant turned back and pushed the officer in the chest. The officer agreed that he had, “moved my way into the unit, yes.” The officer explained his second step forward, further into the unit, as being due to his desire to keep the door open. In the course of his “discussion” with the Appellant “in the foyer of the condo”, he could see that there were about eight to ten people inside the unit. There were about five males, one of whom had come outside of the unit and was standing in the hallway behind the officers. The others were females. The officer felt that there was a “safety concern” because “if that door was closed I didn’t know what was going to come at me afterwards”. The officers told the Appellant that they would not close the door. The Appellant wanted to close the door, which is when he pushed the officer. It was as if the Appellant was indicating to the officer, “like get out of my house and that’s when he pushed me”. The officer felt that the Appellant was not free to close the door or to refuse to answer his question about providing identification. The force used by the Appellant in the push “was minimal”, according to the officer. The effect of the push was that “my shoulder went back”. The officers proceeded to arrest the Appellant for assault police. There was a struggle to arrest him.

The Appellant was charged in a two count Information with assault police “in the execution of his duty” and with mischief by “playing loud music” which wilfully interrupted the lawful enjoyment of property at his condominium building.

The Honourable Michael Code said the facts of this case were unambiguous: the officer entered into a private residence and refused to leave when the owner asked him to leave; the officer’s admitted purpose was to investigate a completed offence of mischief, and not to make an arrest; finally, the officer took the position that he was not going to leave the residence until he had completed the investigation, in spite of a clear lack of consent from the owner of the premises. The only issue on appeal was whether this conduct by the officer was in accordance with the law.

The Judge said the answer to this question turned on the longstanding common law precept concerning the “sanctity of the home” (Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 129 (S.C.C.)). Given the clarity and strength of the common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called “exceptions” to the general rule include the following:

* Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”. See: R. v. Macooh (1993), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 226 C.C.C. (3d) 289 (Ont. C.A.);

* Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 12 C.C.C. (3d) 372 (Sask. C.A.);

* Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.);

* Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry. See: R. v. Silveira (1995), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

* Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

Justice Code said given the relatively small number of exceptions to the rule against forced entry of residential premises by the police, and given their narrow definitions, the courts have repeatedly held that there is no power to enter a dwelling simply for purposes of furthering an investigation. This is precisely what the officer thought he had the power to do in the case at bar. In R. v. Ryan (1956), 116 C.C.C. 239 (B.C.C.A.), it was held that “the mere desire to make an investigation gives no such right of entry”. The Judge said the authorities are clear that police officers become trespassers when they enter premises, without the consent of the owner and without bringing themselves within one of the recognized exceptions to the “sanctity of the home” principle. The officer could not bring himself within any of the exceptions to the “sanctity of the home” principle: there was no “hot pursuit”; there was no purpose relating to prevention of serious injury or protecting life and safety; there was no warrant to arrest and no warrant to search; and there were no “exigent circumstances” such as imminent bodily harm or death or loss of evidence. The Judge said the officer was simply pursuing a mischief investigation as a result of a noise complaint. In these circumstances, the authorities are clear that the officer was a trespasser and the Crown could not prove that he was acting “in the execution of his duty”.

The Honourable Michael Code said the trial judge erred in law in that she made repeated findings to the effect that the officer was on the premises pursuant to the Appellant’s “invitation to enter”. The Crown on appeal conceded that there was no evidence of any such “invitation to enter”. However, the Crown submitted that the “implied license” doctrine did allow the officers to enter into the foyer of the condominium unit, in order to communicate more effectively with the Appellant. Justice Code disagreed. The leading authorities concerning the “implied license” doctrine make it clear that it is no more than a license to approach the door of a dwelling and knock. Indeed, the doctrine is often described as an “implied license to knock”. It has never been held to permit entry (R. v. Evans (1996), 104 C.C.C. (3d) 23 at paras. 13 and 40 (S.C.C.)). Similarly, in the leading Ontario Court of Appeal decision, R. v. Tricker (1995), 96 C.C.C. (3d) 198 at 203 (Ont. C.A.), Galligan J.A. stated that “the implied license ends at the door”.  

The Honourable Michael Code said the trial judge erred again when she held that the officer was also justified in stepping further into the unit, and not stepping back outside the door when he was asked to leave, because of concerns about “officer safety”. Weak and speculative concerns about “officer safety” have never been held to justify forcible entry into private premises according to Justice Code. The Supreme Court of Canada’s recent decision in R. v. MacDonald[2014] S.C.J. No. 3 at paras. 41 and 43, allows such entry (pushing the door open a few inches in that case) but only on the basis of a demanding standard of “reasonable grounds to believe that there is an imminent threat to their safety” and not on “the basis of a vague concern for safety”. In that case, the officers had grounds to believe that MacDonald had a weapon in his hand. In the case at bar, the officer’s articulation of his “officer safety” concerns could not possibly meet the standard set out in R. v. MacDonald, supra. He explained that there were eight to ten men and women inside the unit, and one man outside in the hallway, and he testified that “I didn’t know what was going to come at me afterwards”, if he was to step back and allow the front door to close. This kind of speculative fear of the unknown, when there is a gathering of people in a dwelling, could apply to any dinner party or house party and it would effectively allow the police to remain, uninvited, at any such gathering. This would amount to an extraordinary expansion of police powers said Justice Code.

For all these reasons, the defence’s appeal was allowed, the conviction was set aside, and an acquittal was entered.

 

 

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