Russell Allegra

The plaintiff brought a motion under Rules 21 and 25 of the Rules of Civil Procedure to strike portions of the defendant’s statement of defence and counterclaim in a civil assault action.

The defendant had previously pleaded guilty in criminal proceedings to assault with a weapon arising from the same incident.

The court held that the guilty plea conclusively established that the defendant engaged in intentional conduct and that attempts in the pleading to characterize the incident as accidental constituted an abuse of process by attempting to relitigate matters already determined.

However, the defendant remained entitled to contest damages, describe surrounding events, and pursue a counterclaim for assault arising from the altercation.

Paragraphs attempting to deny intentional conduct were struck, but the balance of the defence and counterclaim were allowed to stand.

The accused brought a Charter motion alleging that police violated s. 8 of the Canadian Charter of Rights and Freedoms by forcibly entering and searching his residence after responding to a disconnected 9‑1‑1 call.

Officers heard yelling and swearing in the background of the call and received conflicting explanations from occupants who refused to open the door for approximately fifteen minutes.

Police ultimately forced entry to verify whether anyone inside required assistance and conducted a limited search of the residence, discovering cannabis plants.

The court held that under the common law duty to protect life and safety, police were justified in entering the dwelling to investigate a potential emergency.

The entry and subsequent protective search were reasonable and did not breach the accused’s Charter rights.