SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-13-0000065-00AP

DATE: 20140305

RE: R. v. Mehdi Zargar

BEFORE: M.A. Code J.

COUNSEL:
Erika Chozik, for the Appellant
Stefania Fericean, for the Crown Respondent

HEARD: February 12, 2014

ENDORSEMENT

A OVERVIEW

[1] The Appellant Zargar was charged in a two count Information with assault police “in the execution of his duty” and with mischief by “playing loud music” which wilfully interrupted the lawful enjoyment of property at his condominium building. This latter offence, contrary to s. 430(1)(c) of the Criminal Code, was the underlying substantive criminal conduct that the police were investigating at the time of the alleged assault.

[2] At the commencement of a short one day trial on May 22, 2012, before B. Brown J., the Crown decided not to proceed with the mischief charge. As a result, there was no proof that any criminal offence was actually being committed at the time of the police investigation.

[3] The Crown proceeded summarily and called only one of the two police officers who had attended at the Appellant’s condominium unit on the night in question. The Appellant then testified. Brown J. reserved judgment for two weeks. On June 5, 2012 she convicted the Appellant of assault police. Sentencing was put over to September 6, 2012 when Brown J. imposed a suspended sentence and twelve months probation.

[4] The Appellant launched an appeal to this Court against conviction only. A number of grounds of appeal were argued. Some of the grounds of appeal are inter-related and, in my view, the first ground of appeal is determinative. It relates to whether the arresting officer, P.C. Mota, was lawfully on the premises of the Appellant Zargar’s condominium unit, in the course of the mischief investigation. If he was not lawfully on the premises, and was a trespasser, Ms. Chozik submits that he was not “in the execution of his duty”. This is an essential element of the offence of assault police, contrary to s. 270 (1)(a) of the Criminal Code.

[5] The trial judge took the view, at the beginning of her reasons, that the case “largely depends on the consideration of the credibility of two witnesses”. Accordingly, she devoted a lot of her analysis to an application of the principles set out in R. v. D. (W.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). In my view, this approach was both unnecessary and insufficient. It is true that the two accounts of P.C. Mota and the Appellant differed on some points. However, on the central issue of whether P.C. Mota had lawful authority to enter the condominium unit, it was P.C. Mota’s evidence that was critical and, in any event, it did not differ significantly from the Appellant’s evidence on this issue. Even assuming P.C. Mota was credible, the issue remained as to whether he was acting lawfully.

[6] The trial judge found that the Appellant Zargar was not “a credible or a reliable witness” and she found that P.C. Mota “was credible and reliable”. Accordingly, I will approach the appeal on the footing that it is only P.C. Mota’s evidence that matters.

B. FACTS

[7] P.C. Mota’s evidence was brief. He was examined in chief for fourteen pages and he was cross-examined by the defence for nine pages. As I read it, his evidence was largely favourable to the defence on the issue of lawful authority to be on the premises, which probably explains the very brief cross-examination.

[8] P.C. Mota had been a Toronto police officer for “about five years” at the time of trial. He would have been an officer for about four years at the time of the relevant events, on December 30, 2011, which perhaps explains his apparent lack of understanding of police powers.

[9] He and his partner, Cst. Muir, attended at the Appellant’s condominium unit in downtown Toronto in response to a noise complaint. The officers were in uniform and they arrived at the building at about 4:00 a.m. The complainant was the building security guard and he advised the officers that he had attended at one of the units in the building and had asked the male resident to turn down the music. There had been ongoing difficulties with this resident, according to what the security guard told the officers, but they were not advised of any security concerns.

[10] The officers proceeded to the eighth floor. They could hear music coming from the unit in question as they got off the elevator. They knocked on the door and the Appellant answered. The Appellant advised the officers that he was the owner of the unit and a “discussion” or series of questions and answers ensued.

[11] P.C. Mota thought that the Appellant was “confrontational” because he replied “what for” when P.C. Mota asked for his identification. The Appellant had simply identified himself as the owner of the unit but he would not give his name. P.C. Muir explained that the officers had received a complaint to the effect that the security guard had already told the Appellant once to turn down the music as he was disrupting other residents. P.C. Mota again asked the Appellant for his identification and the Appellant “again took exception” to this request.

[12] P.C. Mota testified that the above “discussion” with the Appellant took place “in the front doorway area of the foyer”. He acknowledged that he and his partner had “passed the threshold of the door” and were “inside the unit”, standing “side by side” in the “doorway foyer of [the] apartment”. P.C. Mota was standing about a foot away from the Appellant. He estimated that he was about “one step” inside the Appellant’s condominium unit. P.C. Mota acknowledged in his testimony that the Appellant “took exception to us being inside and he wanted to close the door”, and he said something to the effect “get out of my house”.

[13] P.C. Mota agreed that the Appellant was neither under arrest nor was he detained. He testified that, “I’m investigating at that point”. P.C. Mota felt that he had sufficient grounds to arrest for mischief and that the Appellant “had completed the offence of mischief”. However, the investigation was proceeding so that P.C. Mota could determine “whether or not I will go by way of by-law, whether I will go by way of the Form 9 release, I have different things that I can proceed with … Just because I formed the grounds doesn’t necessarily mean I have to arrest”. P.C. Mota took the view that he “was investigating a Criminal Code offence of mischief to property, I was not going to leave his residence until my investigation was complete”. He needed to know “who I was speaking to” because this person “had committed a criminal offence”. P.C. Mota did not have an opportunity to explain his view of police powers because, upon asking a second time for the Appellant’s identification, the Appellant motioned and turned, “almost like he was going to get his ID”. P.C. Mota then took a second step forward into the unit and, at this point, the Appellant turned back and pushed P.C. Mota in the chest. P.C. Mota agreed that he had, “moved my way into the unit, yes.”

[14] P.C. Mota explained his second step forward, further into the unit, as being due to his desire to keep the door open. In the course of his “discussion” with the Appellant “in the foyer of the condo”, he could see that there were about eight to ten people inside the unit. There were about five males, one of whom had come outside of the unit and was standing in the hallway behind the officers. The others were females. P.C. Mota felt that there was a “safety concern” because “if that door was closed I didn’t know what was going to come at me afterwards”. The officers told the Appellant that they would not close the door. The Appellant wanted to close the door, which is when he pushed P.C. Mota. It was as if the Appellant was indicating to P.C. Mota, “like get out of my house and that’s when he pushed me”. P.C. Mota felt that the Appellant was not free to close the door or to refuse to answer P.C. Mota’s question about providing identification.

[15] The force used by the Appellant in the push “was minimal”, according to P.C. Mota. The effect of the push was that “my shoulder went back”. The officers proceeded to arrest the Appellant for assault police. There was a struggle to arrest him.

C. ANALYSIS

[16] Long before the advent of the Charter of Rights, in 1982, the law relating to police powers developed through civil tort actions and through prosecutions for the offences of assault police and obstruct police. These latter two offences, contrary to s. 270(1)(a) and s. 129(a) of the Criminal Code, require the Crown to prove beyond reasonable doubt that the officer was “in the execution of his duty”. In the post-Charter era, the law of police powers has largely been developed through Charter Applications where the onus is generally on the defence to prove unlawful police conduct on a balance of probabilities. However, the s. 129(a) and s. 270(1)(a) offences remain important sources of law in this area.

[17] In the case at bar, there was no Charter Application. Instead, the defence submitted that the Crown had failed to prove an essential element of the offence, namely, that P.C. Mota was “in the execution of his duty”. On appeal, the Crown submits that the defence should have brought a Charter Application so that the Court would have the remedial flexibility of s. 24 Charter remedies, in the event that P.C. Mota was found to have acted unlawfully. I disagree. Defence counsel’s decision, requiring the Crown to prove lawful police conduct rather than taking on the burden of a Charter Application, was tactically wise. In any event, the Crown cannot escape the burden placed on it by s. 270(1)(a), even if a Charter Application had been brought.

[18] The facts of this case are unambiguous: P.C. Mota entered into a private residence and refused to leave, when the owner asked him to leave; P.C. Mota’s admitted purpose was to investigate a completed offence of mischief, and not to make an arrest; finally, P.C. Mota took the position that he was not going to leave the residence until he had completed the investigation, in spite of a clear lack of consent from the owner of the premises. The only issue on appeal is whether this conduct by P.C. Mota was in accordance with the law.

[19] The answer to this question turns on the longstanding common law precept concerning the “sanctity of the home”. Although this principle dates back to seventeenth century English common law, it has repeatedly been applied in a strong line of modern Canadian authority. For example, R. v. Colet (1981), 1981 11 (SCC), 57 C.C.C. (2d) 105 at 110-113 (S.C.C.) was a case where the police had a warrant to “seize” Colet’s firearms. However, the warrant did not expressly authorize entry onto his premises in order to effect that seizure. Ritchie J. gave the unanimous judgment of the Court and stated:

It is true that the appellant’s place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the City of Prince Rupert, but what is involved here is the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne’s Case (1604), 77 E.R. 194, where it was said: “That the house of every one is to him as his (a) castle and fortress, as well as his defence against injury and violence, as for his repose …”. This famous dictum was cited by my brother Dickson in the case of Eccles v. Bourque et al. (1974), 1974 191 (SCC), 19 C.C.C. (2d) 129, (S.C.C.), in which he made an extensive review of many of the relevant authorities.

…it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.

As I have indicated, I am of opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner.

In the result, I am of opinion that the police officers were acting without authority in attempting to enter and search the appellant’s property and they were therefore trespassers.

[20] In R. v. Thomas (1993), 1993 117 (SCC), 78 C.C.C. (3d) 575 (S.C.C)., affirming (1991) 1991 2736 (NL CA), 67 C.C.C.(3d) 81 at 91 (Nfdl. C.A.), the “sanctity of the home” principle was concisely stated in the following terms:

The police must, therefore, rely entirely upon a valid and unrevoked invitation to enter and remain in the house. The law is quite clear on this and there is no need to refer to many cases. Unless authorized by statute or the common law, a police officer may not enter the premises of another without that other’s permission and must leave if and when that permission is revoked.

See also: Eccles v. Bourque (1974), 1974 191 (SCC), 19 C.C.C. (2d) 129 (S.C.C.); R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207 at 218 and 230 (S.C.C.).

[21] Given the clarity and strength of the above common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called “exceptions” to the general rule include the following:

• Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”. See: R. v. Macooh (1993), 1993 107 (SCC), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 2007 ONCA 824, 226 C.C.C. (3d) 289 (Ont. C.A.);

• Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 1999 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 2003 20263 (ON CA), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 1984 2586 (SK CA), 12 C.C.C. (3d) 372 (Sask. C.A.);

• Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 1986 48 (SCC), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 1997 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.);

• Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry. See: R. v. Silveira (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

• Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

[22] Given the relatively small number of exceptions to the rule against forced entry of residential premises by the police, and given their narrow definitions, the courts have repeatedly held that there is no power to enter a dwelling simply for purposes of furthering an investigation. This is precisely what P.C. Mota thought he had the power to do in the case at bar. In R. v. Ryan (1956), 1956 496 (BC CA), 116 C.C.C. 239 (B.C.C.A.), it was held that “the mere desire to make an investigation gives no such right of entry”. In R. v. Custer, supra at p. 386, Chief Justice Bayda stated:

“… the circumstances confronting Cst. Haughn involving, as they did, no more than the investigation of an offence with a view to apprehending the offender, would not have justified Cst. Haughn to enter the defendant’s home against the defendant’s will … The investigation of an offence with a view to apprehending the offender is not an exception at common law entitling a police officer to enter a dwelling house against the householder’s will, and in consequence, Cst. Haughn was acting outside his lawful authority and thus not engaged in the execution of his duty …”

See also: R. v. Thomas, supra at p. 94; R. v. Plamondon (1997), 1997 3175 (BC CA), 121 C.C.C. (3d) 314 at paras. 33-35 (B.C.C.A); Davis v. Lisle, [1936] 2 K.B. 434.

[23] Finally, the authorities are clear that police officers become trespassers when they enter premises, without the consent of the owner and without bringing themselves within one of the recognized exceptions to the “sanctity of the home” principle. As trespassers, the police are not acting in the course of their duty for purposes of ss. 129(a) and 270(1)(a). As Chief Justice Goodridge put it in R. v. Thomas, supra, at pp. 87 and 94, in a judgment that was unanimously affirmed on further appeal to the Supreme Court of Canada:

“There should be no doubt, too, that a policeman unlawfully on premises is not acting in the course of his duty, at least vis-à-vis the person lawfully in possession.

None of the statutory or common law exceptions to the “castle rule” apply here. The Crown must rely only upon an unrevoked invitation. There was none. The police officers were trespassers. They were not, therefore, acting in the course of their duty and Mrs. Thomas cannot be convicted of obstructing them in the course of that duty”.

See also: R. v. Lauda (1999), 1999 970 (ON CA), 136 C.C.C. (3d) 358 at para. 107 (Ont. C.A.).

[24] Applying the above principles to the case at bar, the inescapable conclusion is that P.C. Mota had no lawful authority to enter the Appellant’s condominium unit. He lacked consent from the Appellant, indeed the Appellant made it clear that he wanted P.C. Mota to leave. In addition, P.C. Mota could not bring himself within any of the exceptions to the “sanctity of the home” principle: there was no “hot pursuit”; there was no purpose relating to prevention of serious injury or protecting life and safety; there was no warrant to arrest and no warrant to search; and there were no “exigent circumstances” such as imminent bodily harm or death or loss of evidence. P.C. Mota was simply pursuing a mischief investigation as a result of a noise complaint. In these circumstances, the authorities are clear that P.C. Mota was a trespasser and the Crown could not prove that he was acting “in the execution of his duty”.

[25] The trial judge failed to analyze the case in the manner set out above. This was due to three significant errors.

[26] First, she appeared to rely on “hot pursuit”, although the Crown had never relied on this exception to the “sanctity of the home” principle. There were no submissions on this doctrine of law and none of the relevant cases were cited to the trial judge. Nevertheless, she twice stated in her reasons:

“Overall this Court finds that P.C. Mota was in the execution of his duty in hot pursuit of the investigation of the offence of mischief … The case law is clear that officers acting in hot pursuit in the investigation of an ongoing or recently committed offence have lawful authority to pursue a suspect in circumstances akin to those of Mr. Zargar being in his unit which is the location of the continuing offence in this case”. [Emphasis added.]

The trial judge later repeated her assertion that P.C. Mota was investigating “a continuing offence”.

[27] The Crown on appeal conceded that there are a number of errors in the above passages from the trial judge’s reasons: P.C. Mota was clear in his testimony that the alleged mischief was a completed offence and was not a continuing offence; more importantly, there was no suggestion in the evidence that the police had ever been in “hot pursuit” of the Appellant, as that term is understood in law, or that he had fled to his condominium in order to avoid arrest. The Appellant had been in his condominium throughout and the police came there to question him about an alleged offence being committed in his condominium. The trial judge appears to have devised a new legal principle, namely, being “in hot pursuit of the investigation”, which was previously unknown to our law. If the trial judge simply meant that the police were actively pursuing a criminal investigation, the law is clear that such a purpose cannot justify forced entry of the premises, as explained in the case law set out above. I agree with the Crown that the trial judge’s reliance on “hot pursuit” was in error. See: R. v. Macooh, supra; R. v. Van Puyenbroek, supra.

[28] The trial judge’s second error was that she made repeated findings to the effect that P.C. Mota was on the premises pursuant to the Appellant’s “invitation to enter”. In this regard, she stated the following:

“In this case, he [P.C. Mota] was in the unit initially as a result of an implied license or invitation to enter the unit … Overall, the Court finds that P.C. Mota was invited into the unit by Mr. Zargar and although he did take one further step into the unit immediately before he was assaulted by Mr. Zargar this was a minimal additional step into the unit where he had previously been given implicit permission to enter.” [Emphasis added.]

[29] Once again, the Crown had not argued at trial that “P.C. Mota was invited into the unit”, and the Crown on appeal concedes that there was no evidence of any such “invitation to enter”. However, the Crown submits that the “implied license” doctrine did allow the officers to enter into the foyer of the condominium unit, in order to communicate more effectively with the Appellant. I disagree. The leading authorities concerning the “implied license” doctrine make it clear that it is no more than a license to approach the door of a dwelling and knock. Indeed, the doctrine is often described as an “implied license to knock”. It has never been held to permit entry.

[30] In the leading Supreme Court of Canada decision, R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 at paras. 13 and 40 (S.C.C.), Sopinka J. referred to “an implied license for all members of the public, including police, to approach the door of a residence and knock”, and Major J. referred to “an implied license to approach and knock for a lawful purpose”. Similarly, in the leading Ontario Court of Appeal decision, R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198 at 203 (Ont. C.A.), Galligan J.A. stated that “the implied license ends at the door”. Finally, in the leading English case, Robson v. Hallett, [1967] 2 Q.B. 939 at 950-952, Lord Parker C.J. stated:

“I am quite satisfied that these three police officers, like any other members of the public, had implied leave and license to walk through that gate up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling house, but of the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling-house gives implied license to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.

… we are not here considering the right to enter the front door of the house but merely the right to go in at the garden gate and go up to the front door.

… Accordingly, in my judgment all three police officers were lawfully upon those premises while they were outside the house.” [Emphasis added.]

[31] Finally, and most recently, in R. v. MacDonald, 2014 SCC 3, [2014] S.C.J. No. 3 at paras. 6-8 and 26-7, the Supreme Court of Canada strictly interpreted its formulation of the implied license doctrine in Evans, holding that it referred to “an implied license to approach the door of a residence and knock”. The Court held that the police in the MacDonald case exceeded the scope of the implied license by pushing the door open “a few inches further”, once MacDonald had come to the door, so they could “get a better view of what was in his hand”.

[32] In light of the above authorities, I am satisfied that the trial judge erred in holding that the implied license doctrine could be extended so as to authorize P.C. Mota’s entry into the condominium unit.

[33] The trial judge’s third error was in holding that P.C. Mota was also justified in stepping further into the unit, and not stepping back outside the door when he was asked to leave, because of concerns about “officer safety”. In this regard, the trial judge stated:

“Further, the Court considers the additional circumstance of there being eight to ten people in the unit, together with one person behind the two officers in the general hallway of the floor, adding circumstances in relation to officers’ safety which militated in favour of them taking steps to watch the occupants of the unit while Mr. Zargar went in to get his identification, which is what the officer thought Mr. Zargar was going to do immediately before Mr. Zargar pushed the officer.”

[34] Weak and speculative concerns about “officer safety” have never been held to justify forcible entry into private premises. The Supreme Court of Canada’s recent decision in R. v. MacDonald, supra at paras. 41 and 43, allows such entry (pushing the door open a few inches in that case) but only on the basis of a demanding standard of “reasonable grounds to believe that there is an imminent threat to their safety” and not on “the basis of a vague concern for safety”. In that case, the officers had grounds to believe that MacDonald had a weapon in his hand. In the case at bar, P.C. Mota’s articulation of his “officer safety” concerns could not possibly meet the standard set out in R. v. MacDonald, supra. He explained that there were eight to ten men and women inside the unit, and one man outside in the hallway, and he testified that “I didn’t know what was going to come at me afterwards”, if he was to step back and allow the front door to close. This kind of speculative fear of the unknown, when there is a gathering of people in a dwelling, could apply to any dinner party or house party and it would effectively allow the police to remain, uninvited, at any such gathering. This would amount to an extraordinary expansion of police powers.

[35] I am satisfied that the trial judge’s three errors, concerning the “hot pursuit” doctrine, the “implied license” doctrine, and “officer safety” concerns, all combined to cause her erroneous conclusion that P.C. Mota was acting lawfully and in the execution of his duty. On a proper appreciation of the law, P.C. Mota’s own evidence was unambiguous that he was a trespasser and he was not acting lawfully and in the execution of his duty.

[36] For all these reasons, the appeal is allowed, the conviction is set aside and an acquittal is entered.

M.A. Code J.

Date: March 5, 2014