ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
COURT FILE NO.: CR13-078
DATE: 2014 03 13
B E T W E E N:
HER MAJESTY THE QUEEN
A. P. Leger, for the Respondent
Respondent
- and -
MAX WILHELM
B. Barrie, for the Appellant
Appellant
HEARD: February 28, 2014 in Owen Sound
REASONS FOR JUDGMENT
[on appeal from convictions by
Morneau J. on March 7, 2013]
Hill J.
INTRODUCTION
[1] A homeowner was convicted of criminal offences arising out of an altercation with the police at the front door of his private dwelling when he used reasonable force in an effort to attempt to eject a police officer from entering the residence.
[2] At trial, the court held that because the police were acting in the lawful execution of their duties, the Appellant had no viable defence to his use of force to resist police entry.
[3] For the reasons which follow, the appeal must be allowed.
FACTUAL CIRCUMSTANCES
Background
[4] By the summer of 2011, the Appellant had resided for a number of years on Bay Street in Oliphant, a cottage area on the Bruce Peninsula. At age 68 years, he was a retired banker who had had cancer and heart health issues.
[5] The Appellant’s wife, Maryanne, had her own residence in Owen Sound although she also cohabited with him from time to time. At trial, Mr. Wilhelm described the separate residences as being on account of his spouse’s emotional instability. Maryanne suffered from Post Traumatic Stress Disorder and was known to overreact to things.
[6] The couple had an 18-year-old daughter, Dawnais. The Appellant was the custodial parent with Maryanne having parental access. During the school year, Dawnais attended the W. Ross MacDonald School For The Blind. She had very poor peripheral vision. She also suffered from a major mental disability – Agenesis Corpus Callosum, a diagnosis of the brain where, since birth, the corpus callosum is missing from the brain. The Appellant described his daughter as exhibiting the maturity of about a 12-year-old. She was a special needs child who had an inability, among other things, to understand anything complex.
[7] The cottage next door was owned by John Butterworth. His daughter, Susan Kras, and her husband (Matt) and their children frequently visited.
[8] Max Wilhelm testified that in the summer of 2011 he was not drinking alcohol. He had no alcohol in his home. In his experience, Dawnais had a “great fear” when her mother drank alcohol and there had been incidents of Maryanne becoming upset while drinking. He had cautioned his wife numerous times about drinking in Dawnais’ presence.
[9] Some years prior to 2011, Ontario Provincial Police (O.P.P.) Const. Boshold had attended the Wilhelm residence in response to a call from the Appellant. Maryanne Wilhelm was intoxicated and naked. The officer assisted in persuading Ms. Wilhelm to remain at the house and to go to bed.
[10] On August 11, 2011, Maryanne was staying at the Bay Street home. After a day of errands and shopping, the Appellant, Maryanne and Dawnais were back home by late afternoon.
Dawnais Wilhelm Complains to Her Neighbour
[11] Susan Kras testified that over the years she had developed a friendship with Dawnais Wilhelm. She knew Dawnais to be a special needs child but considered that she coped quite well. She knew the child was “very close with her dad”.
[12] On August 11, 2011, in the late afternoon, Ms. Kras observed Dawnais standing on the property line between the Wilhelm and Butterworth homes. Dawnais called out to her asking if she would come and talk to her mother. Ms. Kras invited the girl to first come over to the Butterworth’s porch.
[13] In Ms. Kras’ opinion, Dawnais looked fine but was upset. She began to cry. When the girl asked if she would come to her house and talk to her mother about not drinking, Ms. Kras asked if she was sure this is what she wanted as it “might come back” on her. Dawnais replied, “Yes, I do want you to talk to my mother. She will listen to you.”
[14] Ms. Kras knocked on the front door of the Wilhelm house. She left Dawnais on the porch back at the Butterworth residence. After a few knocks over about two minutes, Maryanne Wilhelm opened the door just a crack. She was wearing a t-shirt and no pants. She did not want to talk saying: “I can’t talk right now”. In Ms. Kras’ view, her neighbour was intoxicated. Ms. Wilhelm then declined Ms. Kras’ invitation to come over for tea. Not wanting to “push it”, Ms. Kras returned to her own property.
[15] Ms. Kras prepared some food for Dawnais. The girl spoke of her concerns about her mother’s drinking. Dawnais said that when her mother drinks she becomes very angry with Dawnais. She also stated that her father was “very good to her”. The girl reported that that day her mother had hit her in the back. When questioned, Dawnais told Susan Kras that she had not been hit on any prior occasion. When Dawnais purported to show where she had been hit on the back, Ms. Kras examined her skin finding that there was no mark. At no point, did Dawnais express any concern about her father.
[16] Dawnais then spent time in the Butterworth backyard where there was a campfire. Ms. Kras’ children and others were present. When it was time for her children to go to bed, at about 10:30 to 11:00 p.m., Ms. Kras told Dawnais that she would walk her home.
[17] Ms. Kras described the Wilhelm house as dark at this hour. On walking to the front door, Ms. Kras found it locked. She then proceeded to the back door. There appeared to be no lights on in the house. Dawnais opened the back door. “Immediately”, Dawnais’ mother began yelling at her. She seemed to be “mad” at her daughter for not being at home. The door then slammed with Ms. Kras on the outside. She could hear Maryanne Wilhelm continuing to yell at her daughter. She heard from Maryanne: “What are you doing here? Why are you here?” Once the yelling began, she did however hear the Appellant yell out from above: “What’s going on?” The Appellant was “not part of any of the yelling and hollering that was going on with Maryanne”. Susan Kras banged on the back patio door. She yelled: “Dawnais go out the front door”.
[18] At this point, having heard her yelling, Ms. Kras’ husband and brother came over. Ms. Kras next saw Dawnais come around the side of the house from the front. Dawnais asked her to phone the police.
[19] Ms. Kras returned to the Butterworth home with Dawnais. When Ms. Kras informed the girl that if she called the police it could produce trouble for her parents, Dawnais still felt that she should phone.
[20] The Appellant testified that by 8:00 p.m. he was exhausted. No alcohol was consumed at dinner. He had not had his customary daily nap between 1:00 to 3:00 p.m. The Appellant laid down for a nap wearing his t-shirt and underwear.
[21] On the Appellant’s evidence, he awoke at about 10:30 p.m. He proceeded downstairs to the main floor bathroom. He saw Maryanne apparently asleep on the livingroom couch covered by a sheet. He discovered that Dawnais was not in her bedroom. When the Appellant exited the bathroom after three or four minutes, he saw that Maryanne was no longer on the couch.
[22] Returning to the master bedroom, the Appellant found Maryanne in their bed. He inquired of his spouse as to Dawnais’ whereabouts. When he asked Maryanne to locate their daughter, she left to do so. He had no indication that his wife had been drinking. He assumed that Maryanne would look after getting Dawnais to bed. Still feeling exhausted, he fell asleep immediately.
[23] The Appellant testified that he subsequently awoke to a harsh banging and yelling. It was a female voice but not Maryanne or Dawnais. He jumped out of bed and yelled out the bedroom window, “What the hell is going on?” He then dressed and went downstairs intending to go to his backyard.
[24] Mr. Wilhelm informed the trial court that on his way outside he saw Maryanne in the kitchen area. He sensed something was wrong. Maryanne was wearing a top and no pants. She was exhibiting odd posture – she was slumped over and leaning against the counter. He suspected that she might be intoxicated. He went outside to see what was happening.
The 9-1-1 Call
[25] Susan Kras phoned 9-1-1 at 10:59 p.m. on August 11, 2011. At some point, her call was transferred to an O.P.P. dispatcher. Included in the information conveyed to the initial 9-1-1 call-taker was the following:
(1) there was a “domestic dispute” with her next-door “neighbours”
(2) Dawnais Wilhelm, a child residing next door, came to her house “for a little bit” on this date
(3) the girl, who seemed neglected, was very distraught and crying, reported that her mother “tried to hit her”, and asked that the caller speak to her mother
(4) at a point, the caller tried to take the girl home “and things have exploded” – finding the front door of the neighbours’ home locked, the caller went to the back door of that residence and spoke to Dawnais’ mother who seemed receptive “but obviously had been drinking heavily”
(5) after Dawnais re-entered her own house, and the door was slammed shut, her mother began yelling at her inside – Ms. Kras than began to pound on the back door saying to let the girl out or she would call the police
(6) the child re-emerged from the front door of her home and accompanied the caller back to her home
(7) the next thing the caller knew “everybody’s screaming and yelling and … the husband obviously was sleeping upstairs”
(8) the caller’s husband was outside in her backyard – they were “all trying to talk it out” and “everything seems to be calming down” – Ms. Kras added “They’re laughing, I can hear laughing right now, isn’t that great”.
[26] In cross-examination, Ms. Kras was questioned about her use of the words “domestic dispute” when speaking to the 9-1-1 call-taker:
Q. Now, in terms of line 5 and the words attributed to you, we know are your words, when you said you had a domestic dispute with our neighbours, in actual fact what we know from your evidence it was an issue between you and Maryanne on behalf of Dawnais, correct?
A. During the time that I made the call I was trying to word it properly.
Q. Yes.
A. The domestic dispute was not between myself and Maryanne. I was concerned about Maryanne and Dawnais.
Q. That’s the way I took it to mean.
A. Yes.
Q. So I take it the words were the words but the dispute was not an issue between Max and Maryanne or Max and Dawnais, it was a dispute or an issue between Dawnais and Maryanne, only.
A. Yes.
[27] Ms. Kras was further questioned as to other aspects of her 9-1-1 call:
Q. Now, when you say to the dispatcher, “They locked her out of the home.” I take it what you really meant to say was Maryanne did that.
A. Yes.
Q. Okay.
A. I have no idea what Max was doing so I probably said ‘they’, incorrectly.
[28] In the few minutes before the police arrived, out in the backyard area of their homes, the Appellant learned from his neighbours that Dawnais had been to the Butterworth property. It had something to do with controversy between Maryanne and Dawnais and Dawnais not feeling safe. There was an allegation that Maryanne may have hit Dawnais. He was inclined to disbelieve this as Dawnais was prone to overreact, exaggerate and embellish and indeed had on one occasion made a false allegation against another person. In the Appellant’s words, “I wanted Dawnais”. There were raised voices as he became annoyed and insistent that his daughter be released to him. She would never fear him and she would be in safe hands with him.
[29] Matt Kras recalled that at first the Appellant did not understand what was going on. He learned that his neighbour had just been awakened by the noise. He did his best to tell the Appellant what had been going on.
[30] During discussions with Matt Kras, the Appellant heard Maryanne yelling from the area of their backyard. She then went back inside. He could not understand what she was saying. Her behaviour tended to confirm his suspicions that she had been drinking. Matt Kras also heard Maryanne on the back patio next door screaming in a slurred drunken babble.
[31] On the Appellant’s evidence, Dawnais emerged from the Butterworth home and ran over and hugged him. She seemed “very happy” to see him. The Appellant and Matt Kras both recalled that things were then calm and they were laughing with one another.
Police Receive A “Domestic” Call
[32] Const. Boshold testified in-chief that at about 11:00 p.m. on August 11, 2011, when he was in the O.P.P. Bruce Peninsula Detachment, a call came over the air “regarding a domestic”. In cross-examination, the witness gave this evidence:
Q. Did the dispatch voice over your radio say, ‘This is a domestic’?
A. I believe so, yes.
[33] Although the tape of Susan Kras’ 9-1-1 call was introduced at trial, no tape of the dispatch call from the O.P.P. Com Centre in London, Ontario to the detachment was introduced. Const. Boshold made no notes relating to the call or related subsequent events until he returned to the detachment after midnight on August 12 – in the witness’ words, “I didn’t write specifically what the dispatcher would have said.”
[34] The constable testified that as a “domestic” call, it was assigned high priority.
[35] Const. Boshold described the dispatch details as including that alcohol was involved and that there was “some shouting and yelling” and arguing at Max Wilhelm’s house adjacent to 341 Bay Street, the residence of Susan Kras from which the 9-1-1 call had originated. Ms. Kras’ husband was attempting to calm matters down next door. The officer recalled that “the mother was yelling at the daughter”. In cross-examination, the officer described what was going on as “a disturbance”. The Wilhelm’s daughter was at the Butterworth home and there were possible neglect issues or something to that effect.
[36] In cross-examination, and without any supporting notes, the witness added: “[t]he neighbours, I believe, stated it was Max and Maryanne Wilhelm that were involved”. Questioned further upon his notes, the witness located no reference to this. The constable acknowledged that he was unsure what was happening – “I didn’t know exactly”.
[37] In separate police cruisers, Consts. Boshold and Zehr left the detachment to respond to the call.
[38] According to Const. Boshold, after leaving the detachment to proceed to the Bay Street address, he “possibly” received further information while on route. He had no note of any such information – “I don’t recall making notes about it”. On his evidence, he had received no information about violence: “I don’t recall anything about an assault”. Cross-examination on the point continued:
Q. You didn’t have in your head any information that the mother that was yelling at the daughter had suffered any kind of an injury, correct?
A. No, sir.
Q. Or that she was even hurt in any way.
A. No, sir.
[39] O.P.P. Const. Zehr was in the detachment with Const. Boshold when the radio dispatch was received. The officer testified that it was a very high priority call because it was a “possible domestic in progress”. Const. Zehr learned from the dispatch that there was “lots of yelling” next door to the 9-1-1 caller’s home. At trial, the witness could recall no other information he had from the call.
[40] O.P.P. Const. Jansen testified that just after 11:00 p.m. on August 11, 2011, he was dispatched to a 9-1-1 “domestic type call” at the Wilhelm residence. The officer understood from the radio call that alcohol was involved and that the Wilhelm daughter had complained of an assault or domestic with her parents.
[41] In Const. Jansen’s words: “a lot of details I don’t think were known”. In describing the obligation of officers attending such a call, the officer stated: “We get there and we try to figure it out”.
(Sections of the judgment continue verbatim with headings The On‑Scene Investigation, Authority to Enter the Residence/Consent As A Compromise, Const. Boshold Unilaterally Changes the Agreement, REASONS FOR JUDGMENT, POSITIONS OF THE PARTIES, ANALYSIS, and CONCLUSION, ending with the court allowing the appeal and substituting acquittals.)
Hill J.
DATE: March 13, 2014