Preventative arrest okay in domestic case

Mike Novakowski
February 11, 2015
By Mike Novakowski
Manitoba's top court has ruled that police do not have to wait until a person overtly threatens or becomes very violent before arresting them as a person "about to commit" an offence. When officers responded to a 911 hang-up call at about 4:00 a.m in R. v. Alexson, 2015 MBCA 5, they saw and heard the accused through the living room window. He was wearing only underwear and screaming at his wife and a child that he was "pissed off." The wife and child appeared to be terrified as they were clinging to each other. When officers banged on the window and door, the wife ran to let them in and implored the officers to "take him away." Police entered the home and noted Alexson smelled strongly of alcohol and was likely intoxicated. He became verbally abusive to both the officers and his wife. When they asked the wife to take the child to another room, Alexson got up as if to go after them. He was told to calm down but continued yelling profanities at the officers while he dressed, despite their repeated attempts to calm him down. He also clenched his fists and took up a fighting stance.

Manitoba's top court has ruled that police do not have to wait until a person overtly threatens or becomes very violent before arresting them as a person "about to commit" an offence.

When officers responded to a 911 hang-up call at about 4:00 a.m in R. v. Alexson, 2015 MBCA 5, they saw and heard the accused through the living room window. He was wearing only underwear and screaming at his wife and a child that he was "pissed off." The wife and child appeared to be terrified as they were clinging to each other. When officers banged on the window and door, the wife ran to let them in and implored the officers to "take him away."

Police entered the home and noted Alexson smelled strongly of alcohol and was likely intoxicated. He became verbally abusive to both the officers and his wife. When they asked the wife to take the child to another room, Alexson got up as if to go after them. He was told to calm down but continued yelling profanities at the officers while he dressed, despite their repeated attempts to calm him down. He also clenched his fists and took up a fighting stance.

Police concluded they would need to intervene out of concern for their safety and that of the wife and child. They told Alexson he would be taken into custody because he was intoxicated. He was pushed to the ground and handcuffed. The officers wanted to remove Alexson from the house and bring him to detoxification centre where he could sober up and then be released. When they tried to place him in the police cruiser, he braced himself against the back door, kicked one of the officers in the jaw with his steel-toed boot and said "I gotcha." He was arrested for assaulting a peace officer.

Although the Manitoba Provincial Court judge recognized this to be a difficult situation that escalated very quickly, he believed the officers should have done more to resolve the matter without taking Alexson into custody, which "clearly just inflamed the situation."

In the judge's view, there was insufficient evidence to believe Alexson was about to commit an assault in the home or was likely to breach the peace. Thus, the officers were not acting in the execution of their duty when they forcibly removed him. Alexson was acquitted of assaulting an officer "engaged in the execution of his duty."

A Manitoba Court of Queen's Bench appeal judge agreed with the trial judge that the officers were not lawfully acting in the execution of their duty when they forcibly removed Alexson. Nor did the trial judge err in holding that police lacked reasonable grounds to believe an offence or breach of the peace was likely to occur. The forcible removal amounted to a police assault and Alexson was justified in using reasonable force to defend himself.

The Crown appealed Alexson's acquittal to the Manitoba Court of Appeal, arguing that the officers lawfully acted in the exercise of their duty when they attempted to remove Alexson, and had the necessary reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene.

Chief Justice Chartier first observed the difficulty police face in investigating domestic violence.

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? [para. 13]

Police authority to enter

Although an individual's home deserves special protection from police intrusion, the common law can in some cases provide authority for police to enter. In this case, police had the general duty to preserve the peace, prevent crime and protect life and property. The officers were investigating a 911 hang-up call.

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, said Chartier.

In fact, they could have used reasonable force to enter to ascertain the health and safety of the 911 caller, had it been required. 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.

Was forcible removal justified?

Considering the totality of the circumstances, the court concluded that the officers acted in the lawful execution of their duties when they removed Alexson from the home without a warrant:

[I]n this case, the duty being performed was preserving the peace and preventing crime by addressing the safety concerns of the wife and child. The officer testified that he was taking the [accused] to a detoxification centre to prevent him from assaulting them and to sober up. He was not going to charge him with an offence.

A cumulative assessment of the relevant factors satisfies me 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 [accused'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 [para. 22].

About to commit?

Under s. 495(1)(a) of the Criminal Code police officer may arrest when they believe, on reasonable grounds, that a person "is about to commit an indictable offence." Reasonable grounds for belief carries both a subjective and objective component: was the officer's subjective belief objectively reasonable in the circumstances?

"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," said Chartier. "The threshold is much lower."

There is no need to demonstrate a prima facie case, nor does it require an imminent and substantial risk. Instead, all that is required is "the officer's belief that an assault was about to occur be more likely than not."

Furthermore, "the evidence that can form the basis for the officer's reasonable grounds can be hearsay evidence."

The officer's subjective belief was not in dispute. He believed that it was necessary to remove Alexson from the residence to protect the safety of the wife and child from assault. Moreover, his subjective belief was objectively supported by the facts. The court concluded that the officer had reasonable grounds to arrest Alexson for an assault that was about to be committed.

Someone had called 911 and it can reasonably be inferred that it was the wife; the [accused] 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 [para. 28].

Since the arrest was lawful under s. 495(1)(a), it was unnecessary to decide whether Alexson could have been arrested for a breach of the peace under s. 31 of the Criminal Code or at common law for an anticipated breach of the peace.

As for the charge of assaulting a police officer in the execution of his duty, Alexson had deliberately kicked the officer when he was attempting to place him in the police car. In light of these facts, Alexson's acquittal was overturned and a conviction entered.

The matter was remitted to the trial judge for sentencing.

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