ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 116/12
DATE: 20130410
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Daniel Berthelot and Suzanne Berthelot
Appellants
Alexander Kurke, for the Crown
Terry P. Waltenbury, for the Appellants
HEARD: March 6th & 26th , 2013
DECISION ON APPEAL
Cornell J.:
Overview
[1] The Appellants were convicted by G.N. Glaude J. of the Ontario Court of Justice of resisting arrest and assaulting peace officers. They appeal all of the convictions.
[2] The main issues on the appeal were whether the two police officers who responded to a 9-1-1 call had the lawful authority to enter the appellants’ apartment and once inside, whether they used excessive force to subdue the appellants.
Factual Background
Police Version
[3] In response to a 9-1-1 call from a concerned neighbour which suggested domestic violence, Constables Sivazlian and Giommi attended at the home of Suzanne and Daniel Berthelot. They were greeted at the door by Suzanne Berthelot, who held the door ajar behind her in order to be able to make a hasty retreat. She told the police officers that she and her husband had argued about thirty minutes earlier, that the argument had ended and that the police attendance was not required. The officers smelled an odour of alcohol coming from Mrs. Berthelot as well as the odour of burnt marijuana coming from the apartment.
[4] When she was advised by Constable Sivazlian that they were responding to a 9-1-1 call and that “the purpose of their presence was to ensure that everybody in the apartment was OK and that no assistance was required”, she became quite belligerent, tried to retreat into the apartment and attempted to close the door.
[5] Constable Sivazlian was able to prevent the door from being closed by inserting his foot in the door. According to the police evidence, when they proceeded to open the door, they were faced with Mrs. Berthelot’s husband, Daniel Berthelot, charging at them. Constable Sivazlian considered this to be an assault. Efforts to deter Mr. Berthelot by pushing him back twice failed, with the result that Constable Sivazlian found it necessary to subdue Mr. Berthelot on the couch and to place him in handcuffs.
Appellants’ Version
[6] The evidence of Mr. and Mrs. Berthelot tells a very different story. They say that the police essentially forced their way into the apartment, knocking Mrs. Berthelot down in the process. Constable Sivazlian then proceeded to attack Mr. Berthelot and eventually subdued him after punching him in the head twice, which resulted in a cut to the ear which bled profusely.
[7] When the police officers then turned their attention to Mrs. Berthelot, she admitted that she “yelled and yelled and yelled” and proceeded to struggle to the best of her ability. By her own admission, she indicated that she continued to struggle while she was taken down the hall and while being taken out of the apartment building to be placed in the police cruiser.
[8] The evidence offered by Mr. and Mrs. Berthelot paints the officers in question as rogue police officers who struck and injured both of them in unprovoked attacks.
The Law
[9] The trial judge had the benefit of not just hearing, but also observing the witnesses. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada confirmed the deferential approach which is to be taken when reviewing the adequacy of a trial judge’s reasons by commenting at para. 54 as follows:
An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, and stated in Gagnon (para. 20), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”.
[10] The approach to a trial judge’s analysis of evidence was recently considered by the Ontario Court of Appeal in R. v. J.J.R.D., 2006 40088 (ON CA), 215 C.C.C. (3d) 252, where Justice Doherty stated at para. 53:
The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
Analysis
[11] In the first paragraph of his decision, the trial judge identifies the competing interests at stake in this case: the Charter-protected right against unreasonable search to preserve the sanctity of the appellants’ dwelling and society’s desire to see that there is an effective and responsive 9-1-1 system in place to assist people who need help. The trial judge correctly formulated the question by asking whether exigent circumstances existed so as to permit the police officers to enter the dwelling unit without having first obtained a search warrant.
[12] He quotes at length from R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, the leading decision from the Supreme Court of Canada on the subject of police responses to 9-1-1 calls. This decision makes it clear that when weighing these competing interests, the interests of the person seeking assistance outweigh the privacy interest of the person who seeks to deny entry.
[13] The court also makes it clear that the police should not simply take the word of someone who answers the door and indicates that there is no problem which would warrant entry or investigation. That is exactly the set of circumstances that these police officers were faced with given the potentially self-serving statement by Mrs. Berthelot that police assistance was not required and her attempts to close the door so that the police could not enter the dwelling unit.
[14] As he is required to do, the trial judge considered all of the circumstances before making a determination that the police could enter the appellants’ apartment without a warrant. The trial judge took into account the reliable nature of the concerns raised by the neighbour who made the 9-1-1 call about a serious domestic disturbance involving yelling and objects being thrown about. He noted the use of alcohol and marijuana as well as Mrs. Berthelot’s belligerence and lack of co-operation. Faced with this type of situation, the police had every reason to be concerned about domestic violence and the possibility that an injured party might require assistance.
[15] It has been held that in appropriate circumstances, it is open to the police when responding to a 9-1-1 call to forcibly enter a dwelling unit in order to complete their investigation. The fact that the 9-1-1 call did not originate from the dwelling unit is of no consequence. See R. v. Nicholls, 1999 2750 (ON CA), 139 C.C.C. (3d) 253 (Ont. C.A.).
[16] The trial judge correctly determined that “the evidence is contradictory... ”. After finding that events unfolded very quickly, the trial judge went on to determine that “once faced with the melee, Officer Sivazlian’s training kicked in and he took reasonable steps to subdue Mr. Berthelot and Mrs. Berthelot.” It is clear from the trial judge’s decision that he accepted the police evidence with respect to the essential elements which are required for the various offences which the appellants were convicted of. It was open to the trial judge to make these findings based on the evidence that was available to him.
Conclusions
[17] Based upon the evidence that was presented, it was open to the trial judge to find that exigent circumstances existed so as to permit the police to enter the Berthelot dwelling unit without having first obtained a search warrant. It was also open to the trial judge to find that the police did not use excessive force in the execution of their duties based on his finding that reasonable steps to subdue the appellants were taken by the police officers.
[18] There is no palpable and overriding error with the findings of the trial judge that would warrant interference by this court.
[19] The path taken by the trial judge is clearly evident and in my opinion provides a sufficient basis for appellate review.
[20] Accordingly, the appeal as against the various convictions is dismissed.
Mr. Justice R.D. Cornell
Released: April 10, 2013
COURT FILE NO.: 116/12
DATE: 20130410
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Daniel Berthelot and Suzanne Berthelot
Appellants
DECISION ON APPEAL
Cornell J.
Released: April 10, 2013