ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
Matthew Higman and Tina Radforth
Before Justice B. C. Oldham
Heard on July 23, 24, 28, 2025, October 1, 2025 and January 9 and 13, 2026
Reasons for Judgment released on March 4, 2026
E. Metz counsel for the Crown
D. Lakie counsel ……………………………………..for the defendant Matthew Higman
P. Piotrowski counsel for the defendant Tina Radforth
OLDHAM J.:
1Tina Radford and Matthew Higman are co-accused but separately charged with the following offences arising out of an incident on October 31, 2024 in the Township of McKellar:
(a) Matthew Higman stands charged with one count of breach of recognizance contrary to s. 811 of the Criminal Code (the “Code”); one count of assault police officer contrary to s. 270(1)(b) of the Code; one count of mischief contrary to s. 430(1)(4) of the Code; and one count of resist arrest contrary to s. 129 of the Code.
(b) Tina Radforth stands charged with one count of possession of a weapon contrary to s. 88 of the Code; one count of assault police officer with a weapon contrary to s. 270.01(1)(a) of the Code; two counts of attempt to take possession of the weapon of a police officer contrary to s. 270.1(1) of the Code; and resist arrest contrary to s. 129 of the Code.
2Date, jurisdiction and identification of both accused as it relates to them being the parties charged, was acknowledged. Mr. Higman acknowledged that he was on a section 810 peace bond at the time of the incident.
3At the close of the Crown’s case, counsel for Ms. Radforth brought a motion for directed verdict with respect to the allegation of assault police officer with a weapon. The Crown conceded that it had not met its onus on this count, and Ms. Radforth was acquitted on Count 5, assault police officer with weapon.
4Counsel for the defendants submit that this case rises or falls on whether the officers, namely Provincial Constable (“PC”) Matthew Barnes and PC Jordan DaSilva were acting in the execution of their duties when the alleged offences occurred. That question turns on whether there were exigent circumstances justifying PC Barnes’ forced entry into Mr. Higman’s and Ms. Radforth’s home at 2 Mary Street in McKellar on October 31, 2024.
The Evidence
5The Court heard evidence from seven witnesses. The Crown called Samantha Osborne, the neighbour who made the 911 call; PC Barnes, the first officer on scene; PC DaSilva, the second officer on scene; Sergeant (“Sgt”) Matthew Roberts, the Sgt on duty that night; and Detective, then PC Emma Rettie, who assisted with the children and the communication with the Children’s Aid Society with respect to their placement that night.
6Mr. Higman testified. The defence also called Pavel Belanski to provide evidence in respect of the lay-out of the home and the various sight lines.
7The incident occurred on Halloween in 2024. Ms. Osborne testified that she and her husband and children were trick or treating with Mr. Higman, Ms. Radforth and their two children. She testified that they finished trick or treating at approximately 8:30 pm and that she called 911 within the hour, after hearing sustained and escalating voices and a loud noise that sounded like breaking glass coming from 2 Mary Street. While Ms. Osborne was cross-examined on what she could hear from across the street and the timing of when she went out, Mr. Higman confirmed that he and Ms. Radforth were engaged in a loud, escalating argument. Ms. Osborne confirmed that she could not hear any words, only loud voices. Mr. Higman testified that Ms. Radforth was frustrated and angry with him about the lack of progress on the renovations he was doing to the home. At one point she tossed a tray of utensils on the floor which would have made a loud crashing sound.
8Ms. Osborne called 911 after hearing persistent raised and angry voices coming from her neighbour’s house. Ms. Osborne reported that the parties had been drinking an unknown amount of alcohol. Mr. Higman acknowledged that he had a beer when he got home, and that Ms. Radforth had her pink sippy cup while out trick or treating. He claims that he did not know what was in her pink sippy cup, but he knew when he got home that she had been drinking. He denies that he was drinking while they were out and denies that either he or Ms. Radforth were drunk at the time they were with Ms. Osborne. Mr. Higman acknowledges that Ms. Radforth was intoxicated later that evening and at the time of their argument. He claims that he poured out both his and her last drink to try to de-escalate. The video of Ms. Radforth in the police cruiser and the evidence of the officers involved, confirms that Ms. Radforth was significantly impaired. She is seen in the in-car video to be repeating herself, cursing, slurring her words and having difficulty formulating full coherent sentences. Her posture and physical presentation support the claim that she was intoxicated at the time of the arrest, which occurred moments before the in-car camera video.
9At trial, Ms. Osborne confirmed that she did tell 911 that there had been drinking. She acknowledged that she did not see either Mr. Higman, or Ms. Radforth drinking that night. Her report was based on her husband’s report to her that Mr. Higman offered him a beer and that she saw Ms. Radforth stumble. She did not observe, nor report any physical contact between the parties. She only reported that she heard loud voices and that she became concerned when it did not appear to be winding down and when she heard something that sounded like breaking glass.
10PC Barnes and PC DaSilva were both dispatched to 2 Mary Street. The officers were in separate cruisers and PC Barnes was the first to arrive. PC Barnes testified that they were short staffed that night with only 3 officers and one Sgt on shift and that he was dispatched at 9:30 pm. From the 911 dispatch PC Barnes understood the following:
(1) the call related to a domestic in progress;
(2) the call was classified as ‘priority 0’ which is the highest level of urgency;
(3) the call was initiated from an anonymous source;
(4) the report was that there was a domestic conflict between Matthew Higman and Tina Radforth;
(5) the caller reported hearing the smashing of glass and something that sounded like a push;
(6) there were children in the home; and
(7) the couple had been drinking a couple hours earlier, but with the amount of alcohol consumed being unknown.
11While on route, PC Barnes received additional information which included learning that Mr. Higman was on a peace bond from June 2024 stemming from an assault-spousal and that the house and both parties had been flagged for domestic violence and alcohol.
12PC Barnes testified that he arrived at 9:42 pm. He confirmed that it was the policy of the Ontario Provincial Police (“OPP”) for there to be two officers responding to a domestic, so it was his intention to wait for PC DaSilva to arrive, if it was safe. He testified that he approached the front door and looked in through the window at the top half of the door. He described the room as opening up to the left and that he could see two people standing at what he thought was the door to the bedroom approximately two to three feet apart. Ms. Radforth was on the outside and Mr. Higman on the inside of the doorway. PC Barnes explained that while the voices were raised, they were not yelling at each other. He described it as a verbal discussion which did not require immediate action. He only decided to engage when he observed what he described as a sharp escalation with Mr. Higman slamming the door to the bedroom. He described how the door appeared to vibrate within the door frame and appeared to swing through almost hitting Ms. Radforth before recoiling back against the wall on the inside of the bedroom. Given this sharp escalation and the information from dispatch, PC Barnes testified that he was concerned for Ms. Radforth’s safety and did not believe that he could wait for PC DaSilva to arrive. He testified that he believed he had just witnessed a mischief, being damage to the bedroom door, and that provided him with the grounds to arrest Mr. Higman. Accordingly, he knocked on the door in hopes to prevent an escalation.
13In cross examination, PC Barnes was challenged about the statement he made in the use of force report indicating that the door was destroyed. He acknowledged that there was no damage to the door (only the hole in the wall presumably from the door knob), but maintained that based upon what he observed, being the door being closed with such forced that it went beyond the strike point, he believed at the time that it was destroyed.
14Mr. Higman denied that PC Barnes could have observed the door slam because it never happened. Mr. Higman claims that he and Ms. Radforth were never in the bedroom or standing that the doorway. He claims that their discussion after the utensil tray fell to the ground, moved to the living room which was to the right of the bedroom and could not be observed from the front door.
15Mr. Higman further claims and with the aid of Mr. Belanski who provided photos of the line of sight from the front door, that PC Barnes would only have a very limited view of the bedroom door and only if he were positioned to the left side of the door, not the right of the door. Mr. Higman denies that the bedroom door was slammed at this point and claims that the damage to the wall only occurred after PC Barnes entered the house and chased him to the bedroom.
16PC Barnes testified that Mr. Higman responded to the door knock by acknowledging him. He smiled, waived and walked to the door to open it. When PC Barnes asked him to step outside Mr. Higman refused and slammed the door. PC Barnes testified that he tried unsuccessfully to prevent the door from closing and that once closed, Mr. Higman locked the door and ran back into the house in the direction of the bedroom where Ms. Radforth was last seen. PC Barnes testified that he was concerned for the safety of Ms. Radforth and the children who were in the home and that he believed that these were exigent circumstances. He did not feel that he had time to wait to get a warrant, or for PC DaSilva to arrive and so he entered the home.
17Mr. Higman acknowledges that he declined the invitation to step outside. He testified that he heard a knock on the door and thought it was a late trick or treater. He attended at the door and turned on the light which is when he realized it was a police officer. He confirmed that the officer asked him if he wanted to talk and that he said no and closed and locked the door. Mr. Higman claims that he started to walk back to the living room to tell Ms. Radforth that the police were there, but that his door was kicked in. He proceeded toward his bedroom so that he could retrieve his phone to video what was occurring. On his way to the bedroom, he was tacked to the floor. He landed face down in the middle of the floor in his bedroom.
18Mr. Higman also testified that the damage to the wall by the door knob occurred when he ran to his room to get his phone and he slammed the door.
19PC Barnes testified that he saw Mr. Higman running toward the bedroom where he believed that Ms. Radforth was. At that point he kicked the door in and went to the bedroom where Mr. Higman was standing against the far wall facing him. Ms. Radforth was by the foot of the bed. PC Barnes testified that he told Mr. Higman that he was under arrest for breach of recognizance and for mischief and that he asked him to come with him. PC Barnes describes a verbal exchange where he tried multiple times to get Mr. Higman to come with him. According to his evidence, Mr. Higman repeatedly told him that he had broken into his house and to get out. PC Barnes testified that he wanted to get Mr. Higman out and away from Ms. Radforth as he still feared for her safety. When efforts to coax Mr. Higman out of the room failed, he tried to take physical control of him. It was at this point that Mr. Higman, according to PC Barnes grabbed his arm and pushed him. PC Barnes then grabbed Mr. Higman by the collar and Mr. Higman struck him with an open palm to his right jaw. PC Barnes testified that he then struck Mr. Higman two times in the face to effect the arrest and to prevent further assaults. The blows did not change Mr. Higman’s behaviour and he continued to resist arrest.
20PC Barnes describes how they continued with a standing wrestle and recalls trying to explain that this was unnecessary for what they were dealing with and that he just needed Mr. Higman to step outside. The exchange continued for a period of time until he felt a tug at his hip. He looked under his arm and saw a hand on the textured portion of his side arm. When he looked back, he saw Ms. Radforth unsuccessfully pulling on his side arm. She had not undone any of the retention mechanisms and therefore could not remove the weapon. PC Barnes pulled off of Mr. Higman and pushed Ms. Radforth away and out of the room. He told her to go into the other room and returned to secure Mr. Higman. Ms. Radforth complied. It was around this time, that PC DaSilva arrived.
21Mr. Higman denies that he ever struck PC Barnes. He did not kick, push or engage him physically. Mr. Higman testified that PC Barnes did not say anything to him. He was not told that he was under arrest. After PC Barnes tackled him to the floor in his bedroom, he was able to squirm away and get his back up against the dresser. At this point, PC Barnes was standing over him and began to punch him. He threw 7 – 8 punches with three landing on his face, jaw and nose. The others were blocked. Mr. Higman testified that he was seeing stars. He could hear Ms. Radforth yelling stop, leave him alone, get out of my house. Mr. Higman testified that PC DaSilva arrived within minutes of PC Barnes punching him in the face. He was unable to testify as to whether Ms. Radforth engaged with either of the officers.
22PC Barnes confirmed that he was unable to hand cuff Mr. Higman and that when he and PC DaSilva tried to escort him out of the house, Mr. Higman continued to wrestle with them and all three ended up on the floor. Mr. Higman was on his back with his legs in the air in what PC Barnes described as a guard position. PC Barnes testified that Mr. Higman continued to yell at him to get out of his house. PC Barnes recalls that there was a moment of silence and that he tried to tell Mr. Higman that this was completely unnecessary and that they had no option at this point, they could not just leave. Again, the verbal efforts were unsuccessful, and Mr. Higman continue to yell ‘you broke into my house’ and ‘get out, get out’.
23PC DaSilva tried to cuff Mr. Higman and was able to get one cuff on before he broke free. PC Barnes described his concern as Mr. Higman was swinging his arms with the metal cuff attached. To gain control he punched Mr. Higman again in the face, but Mr. Higman continued to fight them.
24PC Barnes testified that he could not recall the sequence of events at this point. He was not sure if he unsuccessfully tasered Mr. Higman at this point or after he dealt with Ms. Radforth. Around this time, he saw Ms. Radforth trying to pull at PC DaSilva’s side arm. Again, without success because she had not untethered the restraints. PC Barnes yelled at her, and she moved her hand to PC DaSilva’s collapsable baton which was right behind the side arm. She was able to remove the top clip, and so PC Barnes picked her up by the waist and carried her to the other room before returning.
25Again, this is where PC Barnes testified that he could not recall if he did the dry stun before or after he carried Ms. Radforth out. Either way, he testified that it was unsuccessful, and that Mr. Higman continued to wrestle with him. He told PC DaSilva to stand back and directed the taser to Mr. Higman’s torso in accordance with his training. He hit the target area and completed the standard five seconds. Mr. Higman then became completely compliant, and he did not have to repeat the sequence.
26Once Mr. Higman was secured, PC Barnes went to assist in arresting Ms. Radforth. She was physically resistive and also got into a guard position on the kitchen floor. The children were screaming at her to stop at this point. Ms. Radforth was flailing her arms and the officers were unable roll her over to cuff her from the back. They ultimately cuffed her to the front and escorted her out of the house.
27According to Mr. Higman, PC Barnes tasered him right after landing the three punches which occurred as soon as he squirmed away following the initial tackle on route to the bedroom. With respect to PC DaSilva’s involvement, Mr. Higman did not have much recollection and testified that he was pretty traumatized by this point.
Position of the Parties
Mr. Higman’s position
28Counsel for Mr. Higman submits that the Crown’s case falls on the fact that it cannot prove beyond a reasonable doubt that there were exigent circumstances justifying PC Barnes’s entry into Mr. Higman and Ms. Radforth’s home on October 31, 2024. In order to prove that Mr. Higman is guilty of assaulting a police officer or of resisting a police officer, the Crown must establish beyond a reasonable doubt that PC Barnes was making a lawful arrest and that he was executing his lawful duties.
29Counsel further submits that the Court must assess the credibility of PC Barnes’ evidence and in particular his claim that he observed Mr. Higman cause damage to the bedroom door by slamming it shut. Counsel submits that, even if it happened, which Mr. Higman denies, PC Barnes could not have seen the bedroom from his vantage point. The photos and video provided by PC DaSilva and the measurements, diagrams and photo produced by Mr. Belanski confirm that the line of sight to the bedroom from the most advantageous location at the front door reveal that at best, 12 inches or approximately one third of the opening to the bedroom would have been visible.
30If the Court is satisfied that the Crown has proven that PC Barnes observed conduct that supported a charge of mischief, it must also prove that a reasonable person, standing in PC Barnes’ shoes would believe that the circumstances required immediate action to ensure the safety of Ms. Radforth and/or to prevent injury. Counsel submits that while PC Barnes may have held a subjective belief that he could not hold off, there were other options available to him and by breaching the door to enter the residence without a warrant, he was not in the lawful execution of his duties.
31Counsel submits that the Crown has failed to prove the mischief charge and notes that it is a fact that neither the door nor the frame was damaged. The only damage was to the wall behind the door that had been previously repaired. The damage to the wall, Counsel submits occurred when Mr. Higman ran into the room and that he had no intention of damaging the wall.
32With respect to the allegation of the breach of peace bond, Counsel submit that a verbal argument, even a loud and sustained argument does not support the claim that Mr. Higman was in breach of the term requiring him to keep the peace and be of good behaviour. Without a finding of guilt in respect of the mischief, assault police, or resist arrest, there is no basis to find that Mr. Higman breached the peace bond.
Ms. Radforth’s Position
33Counsel for Ms. Radforth relied on the submissions made on behalf of Mr. Higman in respect of the charges of resist arrest and attempting to disarm a police officer. With respect to the allegation of possession of a weapon, Counsel submits that the Crown has failed to prove beyond a reasonable doubt that Ms. Radforth was in possession of the red knife found on the floor in the hallway. The Crown’s evidence with respect to this claim comes form PC Barnes who acknowledges that he did not observe Ms. Radforth to be in physical possession of the knife, but that it must have fallen from her hand as it appeared on the floor following an exchange with her. He acknowledged that the knife was folded and that the blade was never exposed or brandished.
Crown’s position
34The Crown agrees that the Court must apply a two-part analysis with respect to all but the mischief, breach of peace bond and possession of a weapon charges. The first part of the analysis requires proof beyond a reasonable doubt that there were exigent circumstances justifying the entry into the dwelling. If the entry was lawful then the Crown must also prove the elements of the offences of resist arrest, disarming a police officer and assault with an intent to resist arrest.
35Given that Mr. Higman testified, the Court must conduct a W.D. analysis of the evidence. The Crown submits that Mr. Higman’s evidence should not be accepted and that the evidence of PC Barnes and PC DaSilva is credible and reliable and makes out the elements of the offences.
36Counsel for Mr. Higman challenges the credibility and the reliability of PC Barnes’ evidence based primarily on the inability to observe what he claims to have observed, but also on the basis of collusion. Counsel submits that the Crown witnesses colluded in the preparation of their evidence both at the scene that night and then later in preparing for trial. He notes that PC Barnes acknowledged discussing the situation with Sgt Roberts at the scene and within the earshot of PC DaSilva. He notes that PC DaSilva and PC Barnes met with the Crown on the same day and that PC Barnes reviewed PC DaSilva’s video evidence with Detective Fox. Counsel submits that the use of force report which was prepared by PC Barnes includes exaggerated statements and inaccurate facts claiming that the door and the frame was destroyed when it was clear that there was no damage to either the door or the frame.
Law and Analysis
37This case involves the delicate balance between the scope of police powers to protect and prevent injury and an individual’s rights to privacy in their home.
38In 1963, the Criminal Court of Appeal in R. v. Waterfield [1963] 3 All ER 659, set out a two-part test to be applied in cases where the court must determine whether police conduct has exceeded their duties. Specifically, the Court must first determine whether the police were acting in the general scope of their duties and secondly, whether the interference was justified and proportionate.
39With respect to the entry into a dwelling house without a warrant, the Waterfield test has been codified in section 529.3 of the Code. This provision describes exigent circumstances which might allow an officer to enter a dwelling house without a warrant as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
40This case engages s. 529.3(2)(a), imminent bodily harm to a person. As acknowledged by the Crown, even if this Court were to be satisfied beyond a reasonable doubt that Mr. Higman assaulted PC Barnes, or resisted his arrest, or that Ms. Radforth tried to disarm PC Barnes or PC DaSilva or resist arrest, that conduct could not result in a conviction, unless the officers were acting in the lawful execution of their duties. When police officers engage in unlawful arrests, those subjected to them are empowered to resist.
41Although a civil liberties case, Justice Côté writing on behalf of a unanimous Supreme Court of Canada, in Kosoian v. Société de transport de Montréal, 2019 SCC 59, confirmed this principle at para. 139, by stating the following:
“I must insist on one point: an unlawful arrest – even for a short time – cannot be considered one of the ‘ordinary annoyances, anxieties and fears that people living in society routinely […] accept[.]’” Furthermore, “In a free and democratic society, no one should accept – or expect to be subjected to – unjustified state intrusions. Interference with freedom of movement, just like invasion of privacy, must not be trivialized”
42Mr. Higman testified and provided evidence around the circumstances in which the officers entered his home at 2 Mary Street in McKellar on October 31, 2024 and accordingly, the evidence before the Court is subject to the analysis set out by the Supreme Court of Canada in R. v. W.(D), [1991] 1 S.C.R. 742 (“WD”) which is as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
W.(D)., supra, para 28.
Has the Crown proven exigent circumstances?
43With respect to the exigent circumstances, PC Barnes testified that he had no other option, but to enter the home at the time that he did in order to ensure the safety of Ms. Radforth and potentially the children in the home. PC Barnes testified that he had reasonable probable grounds to believe that Ms. Radforth was in imminent harm based on all of the information available to him which included the following:
(1) He was aware from the 911 call that there was a report of a domestic incident in progress. It was rated as a zero priority which is the highest priority.
(2) He knew from the dispatch that the caller had reported hearing a loud noise that sounded like the breaking of glass and possibly a shove.
(3) He knew from dispatch that the caller had reported that the parties had been drinking an unknown amount of alcohol.
(4) He knew from dispatch that the home was flagged for domestic violence and alcohol abuse.
(5) He knew that Mr. Higman was on a peace bond related to an allegation of assault - spousal from June 2024, which he deemed to be fairly recent.
(6) He observed what he described as a sharp escalation in the discussions which included Mr. Higman slamming the door with such force that it went through the frame and almost struck Ms. Radforth.
(7) He observed what he believed to be damage to the door and frame providing grounds for an arrest on the basis of a mischief charge.
(8) He had attempted to engage Mr. Higman by knocking on the front door and asking him to step out. Mr. Higman declined the invitation and closed and locked the front door.
(9) After locking the door, he observed Mr. Higman to run back toward the bedroom where Ms. Radforth was last seen and he lost sight of them.
44It is the observations at the entry to the bedroom that Counsel for Mr. Higman submits are critical. Mr. Higman testified that he and Ms. Radforth were in the living room and it would have been impossible for PC Barnes to have observed them. He testified that he did not slam the door at Ms. Radforth because he was not even at the bedroom door. He testified that any damage to the door occurred after PC Barnes entered the home and when Mr. Higman as running to the bedroom to obtain his phone. The suggestion that he had grounds to arrest Mr. Higman for mischief, Counsel submits simply did not exist because it did not occur and it could not have been observed by PC Barnes.
45If the Court accepts Mr. Higman’s evidence in this regard, PC Barnes did not have a lawful reason to enter the home and the Crown’s case cannot be met in respect of the counts that require the officer be in the lawful execution of his duties. Counsel submits that Mr. Higman was forthright and truthful. His evidence was consistent and corroborated. He testified as a person who was telling the truth and knew it.
46Mr. Belanski and the photos and videos taken by PC DaSilva, Counsel submits support Mr. Higman’s evidence that PC Barnes could not have observed an altercation at the doorway of the bedroom. If the Court were to accept Mr. Higman’s evidence, this analysis is irrelevant because the parties were not in the doorway.
47Counsel also claims that Mr. Higman’s evidence that he did not slam the door is corroborated by the fact that the door was not damaged. PC Barnes reported in his use of force report that the door and the frame were destroyed. All of the witnesses confirmed that the only damage in that area was to the wall behind the door where the doorknob may had struck an area that had been previously repaired. Mr. Higman suggested that the damage to that area would have occurred when he was rushing into the bedroom to get his phone. PC Barnes did not deny that possibility and confirmed that he had not inspected the door before or after to ascertain what caused the actual damage.
48The real issue is whether Mr. Higman’s was a credible and reliable witness such that the Court can accept his claim that he and Ms. Radforth were never at the bedroom door and that he did not slam the door in her direction. Mr. Higman was a good witness in that he had a good recollection of the events leading up to the argument. He was not argumentative or evasive and he was candid about certain aspects. He was candid about the fact that he and Ms. Radforth were arguing. He was candid about the fact that she was intoxicated and that both of them were yelling at each other and that emotions were high. However, there were aspects of his evidence which were vague, inconsistent with other testimony and aspects that were not believable. Examples which raise concerns about the credibility of the critical evidence include the following:
(1) Mr. Higman’s testimony about what he had consumed that night was problematic. He testified that he had one beer after work. When asked what type of beer it was he responded that it was a Bush Light, small can. He acknowledged that when they came home from trick or treating, he had one further beer which was also a small can. Initially, in chief Mr. Higman testified that his final can of beer was also a small can and that he threw out half of it with the contents of Ms. Radforth’s pink sippy cup. After being shown the photo of a can of beer in the sink with Ms. Radforth’s sippy cup, Mr. Higman acknowledged that the last can of beer must have been a tall can but was adamant that the other two beers were small cans. It was not the amount of alcohol that he drank or whether he was intoxicated, that was problematic, it was his insistence, in chief, that his first two beers were small cans after seeing the photo of the tall can in the sink and acknowledging that only the last beer was a tall can. This evidence does not ring true. He confirmed that all three beers were Bush Light. One would expect that if all three beers came from his home and were the same brand that they would been the same size can. This expectation is supported by the photographic evidence. Not only was the Bush Light can in the sink a tall can, but the cans in the recycling bin were also tall Bush Light cans. The claim that he clearly recalls that the first two cans were small, when he acknowledges that his recollection of the size of the last beer was wrong, lacks credibility. This evidence leaves the Court with the impression that Mr. Higman is prepared to tailor his evidence to what is provable.
(2) Mr. Higman’s evidence around Ms. Radforth’s consumption of alcohol was also odd. He acknowledged that he knew that she had been drinking when he got home. He explained that having lived with her for 10 years, he could tell that she had been drinking, when others would not. He testified that he knows her drink of choice which is vodka soda. Notwithstanding, in chief he initially denied that she was drinking while they were trick or treating but confirmed that she had her pink sippy cup with her. In cross examination he acknowledged that it was not until later that he realized she might have been drinking while they were trick or treating because she had the same pink sippy cup. Given the presence of that pink sippy cup throughout the night, the suggestion that he thought nothing of it earlier in the evening contrasted with his testimony that he knows her well, can detect when she has been drinking when others cannot, and knew that she had been drinking when he came home, again just does not ring true. The testimony around this issue, and his own drinking pattern that night, is not central to the elements of the offences, but had a significant impact on Mr. Higman’s credibility with respect to his evidence on the central issues.
49Other inconsistencies arose in the evidence of what happened after PC Barnes’ entry into the home. In this respect, Mr. Higman’s evidence is vague and lacks details. He claims that he was seeing stars from the blows to his head and acknowledges that his memory about he details was not great at that point. However, the timing of the blows and what led to them are problematic.
50Mr. Higman testified that PC Barnes did not say anything to him at all upon entering the home. He testified that he tackled him, punched him and then tasered him. The only words were ‘clear’ before the taser struck. When asked if any words were exchanged after he was tackled, Mr. Higman said that he was yelling get out, but that PC Barnes said nothing. PC Barnes testified that he arrived at the home at 9:42 pm. PC DaSilva testified that he arrived at 9:44 pm and testified that Mr. Higman was taken out in hand cuffs at 9:51 pm. PC Barnes could not confirm what time he breached the door, but it was before PC DaSilva arrived. The maximum engagement with Mr. Higman prior to PC DaSilva’s arrival was two minutes and then another seven minutes after PC DaSilva arrived. While not a long time, that is a very long time for an officer not to say anything and not to provide any reason for the entry or arrest. Mr. Higman was asked in examination in chief if PC Barnes said anything prior to him being tackled and he said no.
51PC Barnes’ evidence is that he told Mr. Higman that he was under arrest for mischief when he first entered the bedroom and that he tried multiple times to convince Mr. Higman to come with him by explaining the reasons for the arrest. This is corroborated by PC DaSilva’s evidence. PC DaSilva testified that when he came into the room he overheard PC Barnes’ telling Mr. Higman that he was under arrest. In a completely different line of questioning PC DaSilva reiterated this evidence. In cross examination when he was being asked about the exigent circumstances, PC DaSilva confirmed that he was not present when PC Barnes made the decision to kick in the door, but that he was satisfied that PC Barnes was making a lawful arrest because when he was in the room with PC Barnes and Mr. Higman when he first arrived, PC Barnes was advising Mr. Higman that he was under arrest for mischief. What is significant here is that in response to different question, the communication with Mr. Higman in respect to advising him of the reason for arrest is repeated, in the same manner and with the same details. Mr. Higman denies it happened at all and maintained that there was no communication at all and in the circumstances, that is not credible.
52In terms of the movement of the officers and Mr. Higman within the bedroom, again, Mr. Higman’s evidence is not consistent with that of PC Barnes and PC DaSilva and lacks detail. Mr. Higman claims he was tackled as he ran into the room, he was able to get his back up against the dresser where he was struck by PC Barnes three times and then he was tasered. PC Barnes recalls and describes efforts to communicate with Mr. Higman before any physical arrest. He describes in detail the moments where there were lulls and he tried to explain to Mr. Higman that it does not need to get to this point. He describes the stance between the parties and the back and forth before he took Mr. Higman to the ground. PC DaSilva corroborated PC Barnes’ evidence. He recalls hearing a commotion as he enters the home. He comes into the bedroom and describes Mr. Higman as being in a loop, repeating get out of my house. PC DaSilva described that he did not seem to understand that he was under arrest. PC Barnes kept repeating that he was under arrest for mischief and that no one wants to fight him, but there was nothing that would calm him down. Both he and PC DaSilva have a specific recollection of trying to secure the hand cuff when Mr. Higman was resisting and Ms. Radforth was at PC DaSilva’s belt. Based on Mr. Higman’s evidence none of that occurred. He was not sure whether Ms. Radforth was in the room but does recall hearing her yell at the officers. Again, seven minutes is a long time and the exchanges and details provided by PC Barnes and PC DaSilva are supported by the passage of time. Based on Mr. Higman’s testimony the officers’ actions lacked any provocation and happened in sequence without any evidence of delay or other engagement to take up the time that transpired.
53Counsel for Mr. Higman also raises the issue of collusion. He submits that the officers acknowledged that they colluded both at the scene and in the preparation of the trial. The Court does not agree that the officers acknowledged collusion. PC Barnes testified that he talked to Sgt Roberts at the scene to advise him of what had transpired, the fact that a knife was found on Ms. Radforth as well as Mr Higman. The information shared was to assist in determining next steps, not for the purposes of colluding. There is no evidence that PC Barnes and PC DaSilva met or talked to Sgt Roberts with the specific intention of ensuring that their stories matched. Any information provided to Sgt Roberts was in the context of informing him of what had occurred. The fact that PC DaSilva may have been in earshot at the time, does not support the claim of collusion.
54Similarly, the evidence around trial preparation was that while the officers may have attended at the Crown’s officer to prepare on the same day, their appointments were separate and one after another. It was not a combined meeting to ensure that their stories matched. The Court does not accept that the officers colluded.
55Given the concerns about the credibility of Mr. Higman’s evidence and the determination that the officers did not collude in respect of their evidence around what occurred that evening, the Court does not accept Mr. Higman’s evidence that he and Ms. Radforth were never at the bedroom door, or that the escalation culminating in him thrusting the door in Ms. Radforth’s direction did not occur.
56Even if the Court does not accept Mr. Higman’s evidence, it must also consider whether his evidence raises a reasonable doubt. This is particularly important in the analysis of what PC Barnes could see from the doorway. Again, based on the Court’s findings, it is problematic that Mr. Higman claims that he and Ms. Radforth were never at the bedroom door. PC Barnes was very clear that this is where he first observed them. He testified that at first the discussions, while heated did not raise concerns for him. He was prepared, at that point, to continue observation and await PC DaSilva’s arrival. That would be an unusual detail in PC Barnes’ evidence if Mr. Higman’s evidence that he could not have seen them at all was accepted. It was the slamming of the door that was the escalation that triggered PC Barnes to believe that he had to take further action.
57Again, Mr. Higman’s evidence is that PC Barnes could not have observed the door slamming because it did not happen. Alternatively, the sight lines would not have allowed for that observation. The evidence of Mr. Belanski and the photos and videos of PC DaSilva confirm a very limited sight line. A fair description suggests that only 12” or approximately 1/3 of the doorway could be seen. While limited, that is not nothing. It is noteworthy that none of the evidence presented showed what it would look like if there was someone in the doorway.
58Counsel submits that the Court should also be concerned about PC Barnes’ evidence in the light of the fact that based on the evidence of Mr. Belanski, if positioned to the right of the door, one cannot even see the doorway of the bedroom.
59In terms of PC Barnes’ specific location at the front door, he confirmed that he did not make a specific note. He independently recalls being positioned to the right, with his right shoulder to the door, but notes that it would be easier to demonstrate his position than to describe it. The sight lines vary depending upon the proximity to the door. Mr. Belanski demonstrated that by moving around the line of sight can vary.
60In cross-examination on the issue of PC Barnes’s position and what he observed from the front door, he was asked if this part of his evidence was shaky, PC Barnes replied that he recalls being positioned to the right and that he was confident about what he saw, but that he may have had to change position.
61The Court accepts that PC Barnes was able to make the observations he made. The fact that he was unable to accurately describe how he was positioned is explained in his responses in cross-examination. He recalls his right shoulder was at the door and notes that it would be easier to demonstrate how he was positioned than to describe it. PC Barnes never testified that he had a clear full view of the bedroom. He observed Mr. Higman and Ms. Radforth at the door of the bedroom. He testified that his inability to observe all that was going on was one factor that led to his conclusion that he could not delay his entry into the home. The evidence of the limited sight lines does not raise a reasonable doubt as to PC Barnes’ evidence of his observations, or his decision in respect of the exigent circumstances.
62While Counsel for Mr. Higman submits that the lack of damage to the door corroborates Mr. Higman’s evidence that PC Barnes’ did not witness the door slamming, the Court disagrees. The description of the door provided by PC Barnes’ without the knowledge of how the door actually operates, corroborates that he did see what he said he saw, through his limited, restricted sight line. The door, the Court heard through Mr. Higman, PC DaSilva and Mr. Belanski’s evidence, is not properly constructed in that it is too small for the frame. It swings within the frame and does not stop like a normal door. That fact supports what PC Barnes described. He described a door that went through the strike point and almost hit Ms. Radforth. With the limited ability to observe, PC Barnes’ evidence that this raised concerns for him and appeared to be a sharp escalation, is credible.
63PC Barnes’ evidence was that what caused him concern was what he could see, but also what he could not see. When Mr. Higman ran back into the house toward the bedroom, PC Barnes’ testified that he could no longer see Ms. Radforth and Mr. Higman and that was concerning and the final factor that led him to the conclusion that he could not wait for PC DaSilva or take other action.
64In the final analysis, the Court must assess whether based on all of the evidence it does accept, PC Barnes had reasonable probable grounds to believe that imminent harm could come to Ms. Radforth and that his actions were proportionate.
65Counsel for Mr. Higman reminds the Court that there was no weapon and no flag to suggest that Mr. Higman was someone who carries a weapon or firearm. The folding knife found by Ms. Radforth was not open and was not something that PC Barnes knew of before entering. Similarly, the folding knife found on Mr. Higman was not something that PC Barnes knew of before entering the room. It was never opened and brandished. Those risks, Counsel submits, cannot form part of PC Barnes’ consideration at the time he entered.
66Counsel submits that PC Barnes’ entry was almost instantaneous. PC Barnes confirmed that he did not have a specific note of the time, but that submission is borne out in the evidence. PC Barnes arrived at 9:42 pm and PC DaSilva arrived at 9:44 pm. PC Barnes testified that he approached the door, observed the discussions by the bedroom door and became concerned once he observed the escalation. He called Mr. Higman to the door. He answered and shut and locked the door. PC Barnes entered once he observed Mr. Higman was running in the direction of Ms. Radforth. All of this occurred before PC DiSilva arrived. PC Barnes assessed the time lapse to be approximately one minute which is consistent with PC DiSilva’s evidence and Counsel’s submission that not a lot of time passed before PC Barnes made the decision to breach the door.
67Counsel is critical of PC Barnes’ failure to consider alternative options which would have been a more proportionate response.
68In cross-examination, it was put to PC Barnes that he could have knocked on the window again or could have called out to warn that he would force the door open if Mr. Higman did not return. He could have told Ms. Radforth that she needed to make herself visible so that he could ensure that she was safe. PC Barnes maintained that none of these actions would have been sufficient in the circumstances. Mr. Higman had just refused to come out. He had locked the door. He was headed in the direction of Ms. Radforth and PC Barnes could not see what was happening. In these circumstances he felt he had no choice but to force the door open.
69PC Barnes acknowledged that one would expect that a person would be more compliant or cautious in their actions knowing that an officer is present, but he noted that there are times that people just do not care. He noted that when emotions are involved, individuals often continue to fight right in front of the officer attending. Given all of the information and the situation that had unfolded to that point, PC Barnes confirmed that he was concerned about Mr. Higman’s actions and felt that the only way to ensure Ms. Radforth’s safety was to enter the home.
70Ironically, PC Barnes and PC DaSilva’s description of Mr. Higman and Ms Radforths’ resistance once in the house supports PC Barnes’ concerns about voluntary co-operation. Even if Mr. Higman did not think that PC Barnes had lawful authority to be in his home, one would not expect him to react in the manner described by PC Barnes and PC DaSilva, particularly given that he was on a peace bond and required to keep the peace and be of good behaviour.
71When asked about getting a warrant PC Barnes confirmed that he did not feel that he had time. Interestingly, he also suggested that he believed that the porch was the residence and denied that he was trying to lure Mr. Higman out of the house so that he could make the arrest without a warrant. He was clear that his focus was on separating the two given the concerns noted in the 911 call, the fact that there was a peace bond from a recent domestic and given that the home was flagged for domestic and alcohol abuse. This response is consistent with PC Barnes’ recollection of the interaction. He testified that during the physical interaction with Mr. Higman he continued to remind Mr. Higman that it did not need to go this far and that he simply wanted him to exit the home.
72To establish reasonable probable grounds, the Court must apply an objective test of a reasonable person standing in PC Barnes’ shoes. Taking all of the evidence and factors into consideration, the Court is satisfied that a reasonable person would believe that the argument had escalated and that imminent harm may come to Ms. Radforth if PC Barnes did not enter the home and separate the parties.
73For all of those reasons, the Court accepts that PC Barnes had reasonable grounds to believe that exigent circumstances existed and that his entry into the home was lawful.
Has the Crown proven all of the elements of the offences
74The second part of the analysis is to look at each of the offences to determine whether the Crown has met it onus on all of the elements of the offences.
Mr. Higman’s charges
Mischief – s. 430(4)
75The elements of this offence are set out in the Code. Specifically, s. 430(1) provides:
Mischief
430 (1) Every one commits mischief who wilfully
(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
76For the reasons set out above, the Court does not accept Mr. Higman’s evidence that he did not slam the door prior to PC Barnes entering the home. However, Mr. Higman’s evidence about the damage to the door does raise a reasonable doubt about whether it was wilfully damaged by him.
77It is clear on the evidence that neither the door, nor the frame were damaged, or ‘destroyed’ as PC Barnes believed based on his observation of the door being slammed. The only damage to the door area is the wall which had been previously damaged and repaired. PC Barnes was candid in confirming that he did not inspect the door prior to or after and so he could not speak to when the damage to the wall occurred. He further acknowledged that it is possible that the damage occurred when Mr. Higman was running into the bedroom.
78Without clear evidence of when the damage occurred and by what action, the Crown cannot meet its onus on this count and Mr. Higman is acquitted on the count 3 of mischief.
Assault Police Officer – s. 270(1)(b)
79Mr. Higman is charged under s. 270(1)(b) which provides as follows:
Assaulting a peace officer
270 (1) Every one commits an offence who
(a) …
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person;
80PC Barnes testified that when Mr. Higman was unresponsive to his verbal attempt to arrest him, he tried to take physical control of Mr. Higman. It is at this point that he claims that Mr. Higman grabbed him by the arm and pushed him. PC Barnes grabbed Mr. Higman by the collar and that is when Mr. Higman struck him with an open hand. Mr. Higman denies that he struck PC Barnes and claims that the blows by PC Barnes that followed were unprovoked. PC Barnes was unshaken in cross-examination on this point. PC Barnes acknowledges striking Mr. Higman, but was adamant that it was in response to Mr. Higman’s assault. The Court accepts PC Barnes’ evidence and is satisfied beyond a reasonable doubt that Mr. Higman assaulted PC Barnes while he was in the lawful execution of his duties in trying to arrest Mr. Higman.
81Mr. Higman is therefore found to be guilty on count 2, assault police officer.
Resist Arrest – s. 129(a)
82It is an offence under s. 129(a) to resist or willfully obstruct a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer.
83As Counsel for Mr. Higman conceded the main issue in respect of this charge was whether PC Barnes was in the lawful execution of his duty. This issue turned on the Court’s finding that PC Barnes had reasonable grounds to enter the dwelling to arrest Mr. Higman. There is overwhelming evidence that Mr. Higman was resisting arrest. The Court accepts that PC Barnes advised Mr. Higman of the reasons for the arrest and that Mr. Higman refused to comply with PC Barnes’ demand that he come with PC Barnes and that he physically resisted all efforts to arrest him until he was tasered at which point he became compliant.
84The Crown has proven all elements of this offence beyond a reasonable doubt and Mr. Higman is guilty of count 9, resist arrest.
Breach of Peace Bond – s. 811
85In terms of the allegation of breach of peace bond, PC Barnes confirmed that both the mischief and the argument with Ms. Radforth played into his assessment. He agreed, however, that if the argument was the only action, it would not likely be enough to support a breach of the peace bond.
86While PC Barnes’ testified that the grounds for the breach of peace bond was initially the mischief to the door, Counsel acknowledges that if the Court finds that Mr. Higman is guilty of any of the offences for which he is charged, he was in breach of the term of his peace bond that he is required to keep the peace and be of good behaviour.
87There is overwhelming evidence that Mr. Higman was not complying with the terms of his peace bond in his actions to resist the officers in their efforts to arrest him and in his assault on PC Barnes. Mr. Higman is guilty of count 1, breach of peace bond.
Ms. Radforth’s Charges
Disarming a peace officer – s. 270.1(1)(a)
88Pursuant to section 270.1(1), “every one commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in the possession of the peace officer when the peace officer is engaged in the execution of his or her duty.”
89While PC Barnes and PC DaSilva were attempting to arrest Mr. Higman, Ms. Radforth intervened. She has been charged with two separate counts of attempting to disarm a police officer; the first count in respect of PC Barnes and the second in respect of PC DaSilva. There is no question that Ms. Radforth’s efforts were without the consent of either peace officer and for the reasons set out above the Crown has proven beyond a reasonable doubt that both officers were in the lawful execution of their duties.
90The analysis with respect to PC Barnes required exigent circumstances. PC DaSilva arrived after PC Barnes was already in the home and was attempting to arrest Mr. Higman. Upon entry PC DaSilva observed PC Barnes trying to arrest Mr. Higman and Mr. Higman resisting. PC DaSilva stepped in to try to assist in that arrest. He was in the process of trying to put hand cuffs on Mr. Higman when Ms. Radforth intervened.
91PC Barnes described how Ms. Radforth made two attempts to disarm a police officer. The first was when he was wrestling with Mr. Higman before PC DaSilva arrived. He felt a tug on his side arm but noted that none of the restraints had been removed to allow for the side arm to be removed. He told Ms. Radforth to get out of the room at this point and she complied.
92In Cross-examination, PC Barnes was asked whether Ms. Radforth may have just been tugging on him to get him off of Mr. Higman. PC Barnes did not recall any efforts to pull him off, only the motions on his firearm.
93While Ms Radforth did not testify, the Court is not satisfied that Crown has met its onus on this count. PC Barnes testified that Ms. Radforth did not untether the straps on his firearm. It is possible that she was trying to distract PC Barnes as opposed to disarm him. She was yelling at him to leave Mr. Higman alone and complied with PC Barnes’ verbal demand to leave the room. These actions as described by PC Barnes do not meet the high standard of proof beyond a reasonable doubt that Ms. Radforth was trying to disarm PC Barnes in that moment.
94The second incident involving PC DaSilva, involved both his firearm and his baton. PC DaSilva described how he felt a tug on his firearm and when Ms. Radforth was unable to remove the firearm she started to remove the restraints on PC DaSilva’s baton. PC Barnes told her to stop.
95On the second incident the Court is satisfied that the elements of the offence have been proven beyond a reasonable doubt. Ms. Radforth had just been directed by PC Barnes to stop similar conduct. She was told to leave the room and initially did but returned. The second effort by Ms. Radforth in these circumstances can only be described as more intentional. She knew she was not to engage the officer while he was trying to arrest Mr. Higman. She went directly for his side arm and when she could not remove it, she moved to his baton. This was not just a tug, but an intentional undoing of the tethers which held the weapon.
96The Court is satisfied beyond a reasonable doubt that Mr. Radforth was trying to disarm PC DaSilva in that moment. Accordingly, she is acquitted on count 6, but convicted on count 7.
Resist Arrest – s. 129(a)
97Both PC Barnes and PC DaSilva testified that Ms. Radforth refused to come with them. She got on the ground in a guard position and actively resisted their arrest. They were unable to get her turned over and ultimately had to cuff her to the front as opposed to the rear.
98There is no evidence to contradict the officers’ testimony and no reason to disbelieve them. The Court is satisfied that the Crown has met its onus on this count and Ms. Radforth is found guilty on count 8, resist officer.
Possession of a Weapon Dangerous – s. 88
99Section 88 of the Code provides that “every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purposes of committing an offence.”
100A weapon is defined broadly in s. 2 of the Code to mean “any thing used, designed to be used or intended for use
(a) in causing death or injury to any person; or
(b) for the purposes of threatening or intimidating any person
101Ms. Radforth was charged under s. 88 in respect of the possession of the red handled knife found on the floor in the hallway. While the knife falls within the definition of a weapon, the Crown has not proven beyond a reasonable doubt that Ms. Radforth was in possession of it, or even if she was that it was for a dangerous purpose.
102There is no evidence that she brandished, threatened or used a weapon in her exchange with PC Barnes or PC DaSilva. A red handled knife was found in the area where Ms. Radforth was resisting arrest and trying to disarm PC DaSilva. The knife was not opened and there is no observation of Ms. Radforth holding the knife. PC Barnes testified that he believed it must have come from her hand in that it appeared on the floor after he grabbed her by the waist and carried her away from PC DaSilva. He did not observe the knife to fall off a ledge or from some other location. Based on this information he believed that Ms. Radforth must have been in possession of the knife.
103This is a serious charge and the evidence is insufficient to meet the standard of proof required. Ms. Radforth is therefore acquitted on count 4, possession of a weapon dangerous.
Released: March 4, 2026
Signed: Justice B.C. Oldham