Her Majesty the Queen v. Sanderson [Indexed as: R. v. Sanderson]
64 O.R. (3d) 257
[2003] O.J. No. 1481
Docket No. C37434
Court of Appeal for Ontario
O'Connor A.C.J.O., Carthy and MacPherson JJ.A.
April 29, 2003
Criminal law -- Police powers -- Power to enter dwelling house -- Accused assaulting his girlfriend and threatening to burn her property and kill her dog -- Distraught girlfriend fleeing house in pyjamas -- Police returning with girlfriend to house to protect her as she collected her property -- Girlfriend letting herself and police into house with key -- Police having authority to enter house in order to discharge their common law and statutory duties to preserve peace and protect property -- Accused blocking way to bedroom where girlfriend's property was located and refusing to move -- Police justified in asking accused to move and in arresting him for obstruction when he refused -- Accused resisting arrest and charged with assault while resisting arrest -- Police conduct lawful and laudable assistance given to victim of domestic violence.
The accused assaulted his girlfriend M and threatened to kill her dog and burn her property. M fled the house shoeless and in her pyjamas, in the middle of the night, and went to a friend's apartment. A 911 call to the police was made. Four officers accompanied M when she returned to the house to retrieve her property. M let herself and the officers into the house with a key. She wanted to get some of her belongings from the bedroom. The accused stood in the bedroom doorway and refused to move when asked to do so by the police. He was arrested for obstructing a peace officer. He resisted arrest and was charged with assault resist arrest. At trial, the accused was convicted of a number of offences relating to the altercation with M earlier in the evening, but acquitted of obstructing a peace officer and assault resist arrest on the basis that the conduct of the police in the residence was unauthorized. The trial judge held that once the officers decided not to arrest the accused upon their arrival at the house, they ought to have left the house and pursued alternate remedies to protect M's property. The summary conviction appeal judge dismissed the Crown's appeal, concluding that the police ought to have exercised better judgment in the absence of exigent circumstances and should have advised M to wait and do nothing until the morning. The Crown appealed.
Held, the appeal should be allowed.
The police officers accompanied M to the accused's residence to prevent her belongings from being burned and to assist her in removing them from the residence. These were entirely legitimate purposes. The police had the authority to enter the accused's home in order to discharge their common law and statutory duties to preserve the peace and protect property, and their entry did not involve an unjustifiable use of powers associated with those duties. The same conclusion applied to their conduct inside the residence. There have been significant and commendable changes in recent years in the response of Canadian police to situations of domestic violence. There is now a much greater recognition by the police of both the extent and the seriousness of the problem, and the consequences for victims in the community, when the police fail to respond. It is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with their belongings. That is precisely what the [page258] police did in this case. The actions of the police in the accused's residence were geared to a justifiable use of their powers. The summary conviction appeal judge's suggestion that the police might have advised M to do nothing until the morning ignored the facts that she had been assaulted to an extent that the police noticed a scratch mark under her eyes, that it was the middle of the night and she had only pyjamas, and that an angry boyfriend had just attacked her dog and threatened to burn all of her belongings. A suggestion by the police that neither they nor M do anything until the morning would have been unhelpful and inappropriate.
APPEAL from a judgment dismissing an appeal from an acquittal on charges of obstructing a peace officer and resisting arrest.
Dedman v. R., [1985] 2 S.C.R. 2, 51 O.R. (2d) 703n, 11 O.A.C. 241, 20 D.L.R. (4th) 321, 60 N.R. 34, 20 C.C.C. (3d) 97, 46 C.R. (3d) 193, 34 M.V.R. 1; R. v. Simpson (1993), 12 O.R. (3d) 182, 14 C.R.R. (2d) 338, 79 C.C.C. (3d) 482, 20 C.R. (4th) 1, 43 M.V.R. (2d) 1 (C.A.); R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164, [1963] 3 W.L.R. 946, 128 J.P. 48, 107 Sol. Jo. 833, 48 Cr. App. Rep. 42 (C.C.A.), apld Other cases referred to R. v. Feeney, [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, 212 N.R. 83, [1997] 6 W.W.R. 634, 44 C.R.R. (2d) 1, 115 C.C.C. (3d) 129, 7 C.R. (5th) 101; R. v. Godoy, [1999] 1 S.C.R. 311, 41 O.R. (3d) 95n, 168 D.L.R. (4th) 257, 235 N.R. 134, 131 C.C.C. (3d) 129, 21 C.R. (5th) 205; R. v. Stenning, [1970] S.C.R. 631, 10 D.L.R. (3d) 224, [1970] 3 C.C.C. 145, 11 C.R.N.S. 68 Statutes referred to Canadian Charter of Rights and Freedoms Police Services Act, R.S.O. 1990, c. P.15, s. 42(1), (3)
Lisa Joyal, for appellant. Daniel A. Stein, for respondent.
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Overview
1In the middle of the night, the police received a 911 call from a distraught woman. When they met her, the young woman said that her boyfriend had assaulted her and made threats concerning her dog and her personal property. She informed the police that she had been living at her boyfriend's house and that she had moved in some furniture and other personal belongings. She was very emotional and adamant about returning to the boyfriend's house to retrieve her belongings.
2The police officers believed that it was their duty to accompany the young woman to the boyfriend's house in order to keep the peace, investigate her allegations and assist her in retrieving her property. [page259]
3At the boyfriend's house, the young woman used a key to let herself and the police inside. Once inside, the police met the boyfriend, who was standing in the doorway of the bedroom. The police told him that they were there to keep the peace while the young woman gathered her belongings and then they were going to leave. They also informed the boyfriend that they were there to investigate allegations of assault, threatening and unlawful entry arising out of a confrontation between the couple earlier in the evening. The police gave the boyfriend the option of coming with them to the police station for questioning; otherwise, they would obtain a warrant for his arrest. The boyfriend told the police to get a warrant and he ordered them to leave the house.
4The young woman wanted to get some of her belongings from the bedroom. The boyfriend remained standing in the doorway of the bedroom. The police asked him a number of times to move aside. He refused. The police officers arrested him for obstructing a peace officer. The boyfriend resisted arrest. A scuffle ensued. The police used pepper spray to subdue the boyfriend. He was then also charged with assault resist arrest.
5At trial, the boyfriend was convicted of a number of offences relating to the altercation with his girlfriend earlier in the evening. However, the trial judge acquitted him of the offences of obstructing a peace officer and assault resist arrest on the basis that, once the police officers decided not to arrest the boyfriend upon their arrival at his house, they "ought to have left the residence . . . and pursued alternate remedies to protect the property of the alleged victim".
6The Crown appealed. The summary conviction appeal judge dismissed the appeal, concluding that the police "should have exercised better judgment in this matter, there being no ongoing or continuing exigent circumstances following their lawful entry".
7The Crown appeals again. The appeal raises important issues relating to the authority of police officers to enter, and take actions inside, a dwelling house pursuant to their common law and statutory duties to preserve the peace and protect property.
B. Facts
(1) The parties and the events
8On the evening of March 29, 2000, the complainant, Karen MacLaurin, watched the hockey game on television with her boyfriend, David Sanderson, and Sanderson's friends, April Farrell and Scott Menzies. Throughout the evening and after the friends' departure, MacLaurin and Sanderson argued about MacLaurin's dog. After MacLaurin had gone to bed, she heard Sanderson [page260] threaten to kill the dog. He got a hammer and chased the dog. MacLaurin tried to restrain Sanderson. He pushed her to the floor. She ran, shoeless and in her pyjamas, to Farrell's and Menzies' nearby apartment.
9Farrell accompanied MacLaurin back to Sanderson's house to get the dog and MacLaurin's personal belongings. The altercation between MacLaurin and Sanderson re-ignited. Sanderson assaulted MacLaurin.
10MacLaurin and Farrell returned to Farrell's apartment. Sanderson followed them. MacLaurin may have threatened to damage Sanderson's car if he hurt her dog. Sanderson threatened to burn MacLaurin's property.
11Sanderson returned to his house. Menzies called 911. MacLaurin spoke to the police. Four officers (two regular and two trainees) arrived and decided to accompany MacLaurin to Sanderson's house to allow her to get her belongings safely (she had clothes, cosmetics and furniture in the house).
12At Sanderson's house, MacLaurin used a key to gain entry. Once inside, the police gave Sanderson the option of voluntarily accompanying them to the station for questioning, or waiting until they obtained a warrant to arrest him for assaulting MacLaurin. Sanderson told the officers to get a warrant, and he was not arrested at that juncture. Sanderson swore at the police and repeatedly told them to leave his house. Constable Richard Paul replied that they would leave as soon as MacLaurin had collected her belongings.
13MacLaurin wanted to enter the bedroom to collect her clothes. Sanderson blocked her entry. Constable Paul asked him to move. Sanderson refused. Constable Paul told him that he would be arrested for obstructing a police officer if he persisted. Sanderson still did not move. Constable Paul arrested him and reached to take him by the shoulder. Sanderson resisted and a struggle ensued. The police used pepper spray to subdue him.
(2) The criminal charges, trial and first appeal
14Sanderson was charged with six offences -- uttering a threat to kill an animal, assault, unlawful entry to a dwelling house (the Farrell and Menzies apartment), uttering a threat to damage property, obstructing a peace officer and assault resist arrest. The Crown elected to proceed summarily.
15The trial judge, Justice Donald J. Halikowski, convicted Sanderson of uttering a threat to kill an animal, assault and uttering a threat to damage property. He acquitted Sanderson of [page261] unlawful entry to a dwelling house. No appeal was taken with respect to these verdicts.
16The trial judge also acquitted Sanderson of obstructing a peace officer and assault resist arrest. He reasoned:
The officers only reason for being at the residence was to investigate the domestic assault complained of by Ms. MacLaurin and to protect her property from destruction.
Having decided to give the accused the option of accompanying them to the station in relation to a domestic assault investigation or be subject to an arrest warrant, their next logical state [sic] would have been to protect her property by allowing Ms. MacLaurin access to the bedroom to retrieve it. The accused will be found to have been ordered to step aside by the officers for that purpose.
However, that finding does not enure to the benefit of the Crown on the obstruct and the assault police charges. The authority of the officers to order the accused to move from the doorway is rather tenuous. They did not arrest the accused prior to issuing that order. They may well have had reasonable and probable grounds to believe that he had committed an assault on her or threatened her, but they chose not to arrest him on those charges.
In fact, their offering him an option to wait to be arrested on a warrant betrays their belief that a further assault, destruction of property, or breach of the peace was imminent. The officers ought to have left the residence at that time and pursued alternate remedies to protect the property of the alleged victim. The accused had every right to demand that they remove themselves from his home unless they were prepared to arrest him for an offence, and the officers were not so inclined. On that basis, the obstruct police and assault resist arrest charges will be dismissed.
17The Crown appealed these acquittals. The summary conviction appeal judge, Justice Robert F. Scott, dismissed the appeal in brief oral reasons:
Appeal dismissed. The police in this case, having determined that neither the property nor the Respondent's girlfriend were in any danger, escalated the situation by attempting to move the Respondent having first determined that they had no authority to arrest the Respondent upon first entry into the home of the Respondent. The police should have exercised better judgment in this matter, there being no ongoing or continuing exigent circumstances following their lawful entry.
18The Crown appeals from the judgment of the summary conviction appeal judge.
C. Issues
19The appeal raises two issues:
(1) Was the police entry into the respondent's house lawful?
(2) If the answer to (1) is "Yes", was the police conduct inside the house lawful? [page262]
D. Analysis
(1) Lawful entry into residence?
20The summary conviction appeal judge explicitly held that the police entry into Sanderson's residence was lawful; however, he gave no reasons in support of this conclusion.
21The trial judge also appears to have held, albeit not explicitly, that the initial police entry was lawful. It appears from his reasons that he regarded the entry as lawful on two grounds -- "to investigate the domestic assault complained of by Ms. MacLaurin and to protect her property from destruction".
22The Crown agrees with these conclusions. However, the respondent does not. He contends that the police had no authority to enter his residence. Hence, it is necessary to address this preliminary issue.
23The Crown submits that the police officers had authority to enter the respondent's residence on two bases: (1) the complainant, as an occupier, had invited the officers into the residence in order to assist her; and (2) the officers had the authority to enter the home in order to discharge their common law and statutory duties to preserve the peace and protect property.
24The respondent disputes the Crown's assertion that the complainant was an occupant, and submits that she was only a guest. He points to the complainant's testimony in cross- examination that she was "staying" with the respondent, but not "living" with the respondent, and that she had not yet officially moved into the respondent's residence. The trial judge made no explicit finding on this issue. However, implicit in his reasons is a finding that the complainant did not have the authority to consent to the police officers' entry into the respondent's home. I would not interfere with that finding.
25In my view, the police officers had the authority to enter the home in order to discharge their common law and statutory duties to preserve the peace and protect property.
26The powers and duties of a peace officer emanate from common law and statute. The general duty of a peace officer is to preserve the peace as it relates to the protection of life and property: see R. v. Stenning, [1970] S.C.R. 631, 10 D.L.R. (3d) 224 and Dedman v. R., [1985] 2 S.C.R. 2, 20 D.L.R. (4th) 321. In Ontario, these common law duties have been codified in s. 42(1) and (3) of the Police Services Act, R.S.O. 1990, c. P.15.
27In R. v. Feeney, [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, the Supreme Court of Canada enunciated the general rule that [page263] warrantless arrests in private dwellings are prohibited by the Canadian Charter of Rights and Freedoms.
28In R. v. Godoy, [1999] 1 S.C.R. 311, 168 D.L.R. (4th) 257, the Supreme Court of Canada held that the common law and statutory duties of police officers may, in some circumstances, empower them to enter a dwelling without a warrant. Lamer C.J.C. stated explicitly that Feeney applied only to arrest situations (p. 326 S.C.R.):
I emphasize that Feeney was concerned solely with when the police can enter a dwelling without a warrant to make an arrest. Thus, in my view, the reasoning in Feeney does not apply to the case at bar, which is unconcerned with powers of arrest.
29Lamer C.J.C. was of the view that the question of police entry into a dwelling house for investigatory purposes needed to be determined "on the circumstances of each case" (at p. 318 S.C.R.) and in accordance with the general principles for evaluating the common law powers and duties of police officers as set out in the leading English case, R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164 (C.C.A.). Lamer C.J.C. said, at pp. 318-19 All E.R.:
The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed by this Court in R. v. Stenning . . ., Knowlton v. The Queen, [1974] S.C.R. 443, and Dedman v. The Queen . . .). If police conduct constitutes a prima facie interference with a person's liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.
30In Dedman, supra, and in R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A.), the Supreme Court of Canada and this court provided guidance in applying the Waterfield analysis to the Canadian context.
31In Dedman, LeDain J. said that, in order for a police power to be justifiable in a given context"[t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference" (at p. 35 S.C.R.).
32In Simpson, Doherty J.A. stated, at pp. 199-200 O.R., p. 499 C.C.C.:
[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. [page264]
33In my view, the police officers' entry into the respondent's residence complied with the general Waterfield test and with the overlay of factors for applying it in the Canadian context as articulated in Dedman and Simpson. The officers were faced with a distraught woman in the middle of the night. She, and an independent witness, reported that she had been assaulted by the respondent. She had left the residence in only her pyjamas and without footwear -- on March 29. The altercation continued, and another assault took place, when the complainant returned to the house with Farrell to retrieve her dog and personal belongings. After she left a second time, the respondent followed her to Menzies' and Farrell's apartment where, in a heated exchange, he threatened to burn her personal belongings.
34Hearing all of this when they arrived, the police were fully justified, in my view, in deciding to go to the respondent's house and, accompanied by the complainant who told them that she lived there and had a key, to enter it. They were investigating several potential criminal offences and they had reason to believe that the respondent would destroy the complainant's personal property. Moreover, they wanted to assist the complainant with retrieving her clothing and personal belongings, and getting away from the respondent, so that she could proceed to her parents' home in Belleville.
35In his cross-examination, Constable Paul testified about his reasons for accompanying the complainant to the respondent's residence:
Q. Well, what -- my question is if you had concerns that property was going -- did you have concerns that property was going to be burned and that's why you went there, or did you go there because -- just to get her personal belongings?
A. I went there for both reasons, ma'am, because if he's going -- if he says"I'm going to burn your stuff, I'm going to burn everything", I'm responsible to protect her life, I'm responsible to protect her property, and as far as I'm concerned it was the logical thing to do, to follow through with this in that manner.
36I agree with Constable Paul; his decision to accompany the complainant back to the residence was logical. It was also laudable -- precisely what a distraught citizen would want and need from a police officer.
37In summary, the summary conviction appeal judge, explicitly but without reasons, and the trial judge, implicitly through his reasons, held that the police entry into the respondent's dwelling house was lawful. I agree. [page265]
(2) Lawful conduct inside the residence?
38Both the summary conviction appeal judge and the trial judge held that the continuing presence of the police officers inside the respondent's residence, and their order to him to move out of the doorway, were not lawful. In reaching this conclusion, both judges appeared to focus on the fact that when the police arrived there was no sign that the respondent was burning, or otherwise causing damage to, the complainant's belongings. Thus, the summary conviction appeal judge stated that there were "no ongoing or continuing exigent circumstances" and, therefore "[t]he police should have exercised better judgment in this matter." Similarly, the trial judge, after observing that destruction of the complainant's property did not appear to be imminent, concluded that the police "ought to have left the residence at that time and pursued alternate remedies to protect the property of the alleged victim".
39With respect, I do not agree with this reasoning. In my view, the conduct of the police inside the respondent's residence also complied with the two-stage Waterfield test, and was, therefore, lawful.
40The police testified that they accompanied the complainant to the respondent's residence to prevent her belongings from being burned and to assist her in removing them from the dwelling. These were entirely legitimate purposes and, as explained in the previous section, rendered lawful the police entry in[to] the dwelling.
41The steps the police took inside the dwelling were directed to precisely the same purposes. If the respondent had moved out of the bedroom doorway, the complainant, under the watchful eye of the police, could have safely removed her belongings (one purpose fulfilled), which in turn would have given the respondent no opportunity to burn them (the second purpose fulfilled). The police were fulfilling their common law and statutory duties of protecting property and assisting a victim of crime. The first stage of the Waterfield analysis has been met.
42Under the second stage of the Waterfield analysis, it is necessary to examine the nature and extent of the liberty interfered with and the importance of the public purpose served by the interference: Dedman, at p. 35 S.C.R.; Simpson, at pp. 199-200 O.R., p. 499 C.C.C.
43The strong privacy interest that persons have in the sanctity of their own home has often been recognized by the courts. There are, however, circumstances where public policy considerations must take precedence. In Godoy, Lamer C.J.C. stated, at pp. 321-22 S.C.R.: [page266]
There is unquestionably a recognized privacy interest that residents have within the sanctity of the home. In R. v. Plant, [1993] 3 S.C.R. 281, this Court recognized that the values underlying the privacy interest protected by s. 8 of the Canadian Charter of Rights and Freedoms are (per Sopinka J. at p. 292) "dignity, integrity and autonomy". In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 50, Cory J. elaborated that one aspect of this privacy interest is "[t]he right to be free from intrusion or interference". However, dignity, integrity and autonomy are the very values engaged in a most immediate and pressing nature by a disconnected 911 call. In such a case, the concern that a person's life or safety might be in danger is enhanced. Therefore, the interest of the person who seeks assistance by dialing 911 is closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help.
(Emphasis added)
44In my view, those observations by Lamer C.J.C. are applicable to this case. The police had been called to assist a distraught young woman in the middle of the night who, after being assaulted twice, had been forced to flee her boyfriend's residence, without any shoes, and wearing only her pyjamas.
45There have been significant and commendable changes in recent years in the response of Canadian police to domestic violence situations. There is now a much greater recognition by the police of both the extent and the seriousness of the problem, and the consequences for victims in the community, when the police fail to respond. Police officers are often the first persons called to respond in situations of domestic violence. In my view, it is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with their belongings. That is precisely what the police did in the present case.
46The actions of the police in the respondent's residence were geared to a justifiable use of their powers. Constable Paul explained to the respondent that they would leave as soon as the complainant had retrieved her belongings. The complainant wished to enter the bedroom, which she used when she stayed at the respondent's residence, in order to get her clothes. When the respondent refused to allow the complainant to enter the bedroom, the police were justified in ordering the respondent to move, and in arresting him for obstruction when he refused to comply.
47The respondent contends that the police conduct in this case was more akin to the functions of a bailiff than those of peace officers. It is clear from the proceedings that the summary conviction appeal judge was also thinking along these lines. During the Crown's submissions, he observed:
Then he's there maybe in a bailiff situation trying to recover personal items on behalf of the girlfriend of the Respondent. And that's where I [page267] have concern I think in my mind. I mean where you have to convince me is that I think any escalation in that house was at the hands -- or as a result of the actions by the police and not by the Respondent.
48I do not think the bailiff analogy is apt. There is no dispute about the complainant's ownership of the personal belongings she left behind in the respondent's dwelling when she made her abrupt departure. Nor is there even the slightest hint that the events that unfolded that night were civil in nature, not criminal.
49The respondent also contends that the police should have followed a different course of conduct that evening. He relies on the observations of the summary conviction appeal judge during the Crown's submissions:
THE COURT: They [the police] could have cautioned her and said"The best thing for you to do is remain right here [at the Farrell/Menzies apartment] and you know, in the daylight hours there's things to do".
MR. HEWITT: And if . . .
THE COURT: "If not, we'll go over there [to the respondent's house] with you and if it looks like he's burning the property then we'll do something about it. If he's not, then we're going to leave. All right." That's what a normal, reasonable police officer would have done.
(Emphasis added)
50I disagree with these suggestions about proper police behaviour in the context of a volatile domestic dispute. The suggestion that the police might have advised the complainant to do nothing until the morning ignores the facts that she had been assaulted to an extent that the police noticed a scratch mark under her eyes, that it was the middle of the night and she had only pyjamas, and that an angry boyfriend had just attacked her dog and threatened to burn all of her belongings. A suggestion by the police that neither they nor the complainant do anything until the morning would have been unhelpful and inappropriate.
51I described the police entry into the respondent's residence as logical, laudable and lawful. The same words apply to their conduct inside the dwelling.
E. Disposition
52I would allow the appeal, quash the acquittals relating to the offences of obstructing a peace officer and assault resist arrest, substitute verdicts of guilty, and remit the matter to the trial judge to enter convictions and impose sentences.
Appeal allowed. [page268]
