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Unlawful police entry denies domestic assault victim her day in court

February 20, 2023  By Mike Novakowski

The Nova Scotia Court of Appeal has upheld the imposition of a judicial stay of proceedings on 32 domestic violence related charges because the police entered the accused’s home unlawfully to arrest him.

In R. v. Mitchell, 2022 NSCA 77, the police attended the accused’s residence at 1 a.m., a few hours after receiving a complaint from his former girlfriend. The police intended to arrest Mitchell on 32 charges related to allegations of numerous instances of intimate partner violence arising from the relationship that had ended months earlier. These allegations included assaultive behaviour with choking, use of a knife, and breaking an ankle. The police expected to find Mitchell at home because he had a court-imposed daily curfew associated with other unrelated charges he was facing. In advance of the arrest attempt, a supervisor instructed two officers to attend Mitchell’s home under the pretense of performing a curfew compliance check. The officers were to have Mitchell exit the house and arrest him once outside. Although police were aware of the requirement to have a Feeney warrant to enter a private residence to effect an arrest in the absence of fresh pursuit, exigent circumstances, or consent, there was no discussion about or effort to get one.

When the two officers knocked on the door, Mitchell opened it. He was told the police wished to arrest him but did not have a warrant to do so. Mitchell then closed his door and locked it. The supervisor, who was also in attendance, sprinted across the yard and kicked open the door. All three officers entered the home and struggled with Mitchell. He was pulled down the stairwell, forcibly removed from his home shirtless and barefoot, put on the ground and arrested. A previous surgical reconstruction of his right hip joint – which was not known to police – was aggravated during the arrest.

Before trial in Nova Scotia Provincial Court, Mitchell argued his Charter rights had been breached by the conduct of the police and he wanted all the domestic related charges against him stayed. A stay of proceedings is the most drastic remedy a criminal court can order as it permanently halts the prosecution of an accused. The application judge agreed a stay was warranted, stating:

“I am finding there was a section 8 breach. I am also finding a section 7 breach. Officers ignored the law. The corporal deliberately attempted to employ an unlawful strategy and when that did not work, (as he testified to) out of frustration and anger stormed into a private dwelling attempting to justify through his own perspective that there was hot pursuit. He was followed by two officers. Both knew or ought to have known that their entry was unlawful … They should have been hauling their corporal out of the home, not Mr. Mitchell.”

The application judge went on to hold that the circumstances of the police entry into Mitchell’s home was over-the-top. They used significant force – their fists, knees and feet – and deliberately chose not to respect Mitchell’s right to be free from police entering his dwelling unlawfully and administering force. And there were no urgent circumstances that required the police to execute the arrest at 1 a.m. and in the manner they did, all while “heavily armed”.

A stay of the 32 charges was an appropriate response to properly sanction the conduct of the police. No lesser remedy would redress the prejudice occasioned on the integrity of the justice system by the police conduct. Staying only some of the charges would convey the message the police misconduct was trifling, and a civil judgment or a reduction in sentence would have little impact because the matter was not at the trial stage.

“At times, state conduct will be so troublesome that having a trial—even a fair one—will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.” – Justice Beaton

The Crown appealed the application judge’s ruling that the unlawful entry into Mitchell’s home without a warrant was not egregious as to be one of those “clearest of cases” requiring the drastic remedy of a stay of proceedings.

Stay of proceedings

A three-member panel of the Nova Scotia Court of Appeal reviewed case law concerning the imposition of a judicial stay of proceedings and found the application judge did not make a mistake in ordering it. “There are limits on the type of conduct society will tolerate in the prosecution of offences,” said Justice Beaton for the Court of Appeal. “At times, state conduct will be so troublesome that having a trial—even a fair one—will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system.” Beaton agreed that that the police conduct was shocking.

Further, the application judge’s decision was entitled to deference. He was deeply concerned about the conduct of the police and identified a systemic problem that required future prevention. He noted the conduct in this case was not an isolated incident and the case law was replete with examples of police entering dwellings unlawfully and administering force against suspects. He appropriately exercised his discretion in weighing the merits of other possible remedies to sanction the police conduct.

Finally, in deciding to impose the stay, the application judge properly balanced the egregious actions of the police against the community’s and the alleged victim’s respective interests in the prosecution of the serious domestic violence allegations. As a result, the Court of Appeal refused to disturb the application judge’s ruling. The Crown’s appeal was dismissed and the imposition of the stay of proceedings was upheld.

Mike Novakowski is Blue Line’s case law columnist.

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