R. v. Alexson 2015 MBCA 5 – police responded to a 911 hang-up call by attending Alexson’s home. They heard him yelling at his wife and child and saw the wife and child clinging to each other in fear from outside the home. The wife allowed the officers into the home where they instructed the wife to take the child out of the room. Alexson was clearly intoxicated and belligerent with the officers, who believed they had to remove Alexson from the home for the safety of his wife and child. He fought the officers and had to be handcuffed. As he was being placed in the police car, Alexson kicked an officer in the jaw with his booted foot. At trial, the judge considered the officers’ removal of Alexson from the home unnecessary and unlawful, such that they were acting outside the execution of their duty when Alexson kicked one of them. The appeal judge found that Alexson’s forcible removal from his home constituted police assault, and that Alexson was therefore justified in using reasonable force to defend himself. The Crown appealed to the Manitoba Court of Appeal from the dismissal of its summary conviction appeal from Alexson’s acquittal on a charge of assaulting a police officer engaged in the execution of his duty.
This case forced the MBCA to reexamine implications of cases decided years ago. Unfortunately, domestic violence incidents like this one are often before the courts. What are officers to do when they believe a belligerent and intoxicated person poses a danger to others in the home? Do they arrest that person and risk being assaulted with impunity and sued in civil court for unlawful arrest; or, do they leave and risk being blamed if another member of the household is hurt because they did not remove that person? This appeal provided the MBCA with an opportunity to clarify the scope of police authority to enter the home and deal with such situations.
The sources of legal authority for police to enter a home will typically arise through statute, common law, or by the consent of a person with the authority to grant access. In this case, the officers were investigating a 911 hang-up call. When they attended to the home, they knocked on the door and a woman let them in. The circumstances of this case did not allow the officers to ascertain whether she had the authority to do so. They were now in the home and had to rely on their experience and judgment to deal with a potentially volatile situation.
Let’s examine some prior cases that were discussed for this appeal: when police action constitutes a prima facie interference with a person’s liberty or property, the two-pronged Waterfield/Dedman test provides useful guidance as to whether the officers had the authority to enter the home for investigatory purposes and were thereby lawfully acting in the exercise of their duty (R. v. Waterfield,  3 All E.R. 659 (Ct. Crim. App.); and Dedman v. The Queen et al.,  2 S.C.R. 2). At the first stage, it must be determined whether the entry in the home to deal with the 911 call fell within the general scope of any duty imposed on the police by statute or at common law. In this particular case, the Police Services Act, C.C.S.M., c. P94.5 (the PSA), provides at s. 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 include preserving the public peace and preventing crimes and offences (as a side note, similar provisions exist in s. 13 and s. 15(2) of the Police Act R.S.P.E.I. 1988, c. P-11.1; s. 42(1)(2) of the Police Act S.N.S. 2004, c. 31; s. 2(2) and 12(1) of the Police Act S.N.B. 1977, c. P-9.2, etc.). As well, under the ancillary common law powers and duties, an officer must 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,  1 S.C.R. 37).
This case was very similar to the fact situation found in R. v. Godoy,  1 S.C.R. 311. As a reminder, in that case, the Supreme Court of Canada held that the police officers had the authority to forcibly enter the home without a warrant 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 the home 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 the home.
The MBCA said, in light of Godoy, there can be no question that the officers in this case had the authority to enter the home to investigate the reason for the 911 call, irrespective of whether the person that let them in had the authority to do so. In fact, they could have 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 child was about to occur. As a result, they decided to forcibly remove the respondent from the home.
For the second part of the two-pronged Waterfield/Dedman test, it must be determined whether this forcible removal was justifiable in the circumstances. In Godoy, the Supreme Court of Canada set out a number of factors to be weighed to balance the police duty 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 individual liberty for the performance of the duty; and (c) the extent of the interference with individual liberty. These factors are to be weighed together to ascertain if the police action was “reasonably necessary” (MacDonald at para. 32). The Honourable Mr. Chief Justice Richard J.F. Chartier, speaking for a unanimous court, at para. 20 said the justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions (see R. v. Golub (D.J.) (1997), 102 O.A.C. 176 at paras. 44-45, leave to appeal to S.C.C. dismissed,  S.C.C.A. No. 571 (QL); and MacDonald at para. 32).
“The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience.”
The officer testified that he was taking the respondent to a detoxification centre to prevent him from assaulting them and to sober up. He was not going to charge him with an offence. Justice Chartier said that a cumulative assessment of the relevant factors satisfied him that the arrest and detention were reasonably necessary for the carrying out of the duty to preserve the peace and prevent crime. It was a preventative and restrained measure taken to protect other members of the household. The nature and extent of the interference with the respondent’s liberty was limited to the time it took for him to sober up. It was also a reasonable interference that served an important public purpose.
The MBCA also examined another issue: did the SCA judge err in law in holding that the officers lacked reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene? At para. 24, Justice Chartier said:
“The police power to arrest people without a warrant is not without limits. It is governed by a requirement which serves to protect a person’s liberty against unwarranted interference from the state: there must be “reasonable grounds” upon which to base the arrest. Section 495(1)(a) of the Criminal Code (the Code) gives officers this power when they believe, on reasonable grounds, that a person “is about to commit an indictable offence.” This requirement carries both a subjective and objective component: was the officer’s subjective belief that the respondent was about to assault one of the occupants of the home objectively reasonable in the circumstances? See R. v. Storrey,  1 S.C.R. 241.”
In this case, the trial judge held that the officer did not have reasonable grounds to believe that the respondent was about to commit an assault. The SCA judge concluded in her reasons that, because the respondent’s conduct did not present an “imminent and substantial threat of some act of violence” (at para. 28), the trial judge was correct to find that the officer lacked reasonable grounds to believe an offence was about to be committed. Justice Chartier said 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. The threshold is much lower. In R. v. Shepherd, 2009 SCC 35  2 S.C.R. 527), 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, 291 Man.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 see Storrey). Moreover, the evidence that can form the basis for the officer’s reasonable grounds can be hearsay evidence (see Eccles v. Bourque et al.,  2 S.C.R. 739; and R. v. Collins,  1 S.C.R. 265 at 279).
In Justice Chartier’s view, the SCA judge erred in law in holding that the police lacked reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene. There was ample evidence to meet the requisite threshold and to objectively support the officer’s subjective belief that the respondent was about to commit an assault on either the wife or child. Someone had called 911 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 sent them to the other room; and he clenched his fists and took a fighting stance against the officers. In the circumstances, Justice Chartier concluded that the officer had reasonable grounds to arrest the respondent for an assault about to be committed. In light of this conclusion, it was unnecessary to decide, alternatively, whether by statute or common law, the respondent could have been arrested for a breach of the peace under s. 31 of the Code (while s. 31 requires the breach to 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), 18 C.C.C. (3d) 254 (B.C.C.A.)).
Justice Chartier overturned the acquittal, substituted a conviction, and remitted the matter to the trial judge with the direction that he impose a sentence that is warranted in law.