ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-30-AP

DATE: 2014-06-10

B E T W E E N:

HER MAJESTY THE QUEEN

P. Keen, for the Respondent

Respondent

• and -

MELVIN KEEPER

R. Sinding, for the Appellant

Appellant

HEARD:

at Kenora,, Ontario

Mr. Justice J.S. Fregeau

REASONS ON APPEAL

Introduction

[1] This is an appeal by the accused, Melvin Keeper, from his conviction on a charge of having assaulted Constable Jerry Mosquito (“Cst. Mosquito”), a peace officer with the Pikangikum First Nation Police Service, engaged in the execution of his duty contrary to Section 270(1)(a) of the Criminal Code of Canada (the “Code”).

Issues

[2] The appellant advances nine grounds of appeal in the Notice of Appeal. However, after reviewing the material and having heard oral argument, I am satisfied that all grounds of appeal are encompassed within the following five issues:

1. Did the trial judge err in finding that Cst. Mosquito was invited into the residence occupied by the appellant and his teenage son, Cornelius Keeper, on the day of the alleged offence;

2. Did the trial judge err in finding that there was no legal obligation on Cst. Mosquito to inform the occupants of the reason for police attendance at the Keeper residence;

3. Did the trial judge err in finding that Sections 2 and 9 of the Trespass to Property Act, R.S.O. 1990 c. T-21 applied on Pikangikum First Nation;

4. Did the trial judge err in finding Cst. Mosquito was legally entitled to remain in the residence given his finding that Melvin and Cornelius Keeper had withdrawn their consent that the officer be in the residence; and,

5. Did the trial judge err in finding that Cst. Mosquito complied with s. 2(1)(b) of the Trespass to Property Act.

Facts

[3] On June 23, 2010, Cst. Mosquito, a member of the Pikangikum First Nation Police Service, received three alcohol related complaints pertaining to the residence of Melvin Keeper (“Melvin”) and his son Cornelius. This residence is located on Pikangikum First Nation territory.

[4] The first was received at 11:00 am. Cst. Mosquito was advised that an intoxicated person was causing problems at Melvin’s residence. The officer attended, observed the situation, saw no reason to intervene and departed. The second caller, at 1:30 pm, was referred the Peacekeepers, First Nation civilian staff trained to deal with intoxicated persons.

[5] The third call was received at 2:00 pm. This caller advised Cst. Mosquito that Melvin may have been intending to drive his boat while intoxicated. Cst Mosquito responded to this call and attended the Keeper residence for a second time that day.

[6] Cst. Mosquito arrived at the Keeper residence at 2:15 pm. and knocked on the door. Cornelius Keeper, 15 years old, answered the door. Cst. Mosquito inquired, “What’s going on?” Cornelius opened the door, stepped to the side and made an open hand sweeping gesture in the direction of two people passed out on the living room couch. The officer knew the two people passed out on the couch as Fabian and Sharon Strang. He was aware that they were spouses of one another and that they did not live at the Keeper residence.

[7] The trial judge found that the officer understood the gesture of Cornelius to mean that Fabian and Sharon were the intoxicated people to be removed and that he was being invited into the residence in order to do so. The officer asked Melvin if it was okay if Fabian and Sharon remained in his residence. Melvin pointed to them and said, “they can go.”

[8] Cst. Mosquito woke up Fabian whom he found to be intoxicated. The officer advised him that he was not wanted there and had to go. The officer pulled on Fabian’s arm and Fabian pulled away from the officer. The officer asked Fabian a second time to get up and leave and he refused. Cst. Moquito heard Melvin say to Fabian that “they had to go.” The officer then took hold of Fabian’s arm and arrested him for trespassing and intoxication. Fabian resisted and was forced to the ground and handcuffed behind his back. Sharon was also handcuffed.

[9] While the officer was struggling with the Strangs, Melvin approached the officer holding a large knife in his hand. The officer was alarmed and ordered Melvin to leave the living room. Melvin did so and was then observed by the officer to be pacing in the kitchen in an agitated state. As the officer was again dealing with Fabian and Sharon, Melvin approached him for a second time, apparently without the knife. He was warned to “stay back or he was going to be placed under arrest too.” Melvin came at the officer and said, “try it.” The officer pushed Melvin away and told him to get back. Melvin approached the officer again and the officer grabbed him by the wrist, telling him that he was going to be arrested for obstruction. Melvin resisted and a struggle began.

[10] The officer and Melvin struggled on the floor. Cornelius joined the fray and grabbed the officer’s radio and threw it out the door. Cornelius left the residence and the officer struggled with Melvin until backup arrived at which time he was arrested and taken into custody.

Summary Conviction Appeal Routes

[11] Section 813(a)(i) of the Criminal Code allows a defendant in summary conviction proceedings to appeal to the appeal court from a conviction. Section 822(1) of the Code incorporates most of sections 683 to 689, which govern indictable offence appeals, to summary conviction appeals.

[12] Section 686(1)(a) of the Code states that the appeal court may allow the appeal where it is of the opinion that:

1. The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

2. The judgement of the trial court should be set aside on the ground of a wrong decision on a question of law; or,

3. On any ground there was a miscarriage of justice.

The Standard of Review

[13] The leading case addressing the standard of review on appeal is Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for findings of fact is palpable and overriding error. The standard of review for inferences drawn from findings of fact is also palpable and overriding error. At para. 23 of Housen, the Supreme Court discussed the standard of review for inferences of fact:

We reiterate that it is not the role of appellate courts to second guess the weight to be assigned to the various forms of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts…

[14] In Housen, the Supreme Court instructed that on pure questions of law, the applicable standard of review is correctness. At para 8, the court held:

On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness.

[15] In Housen, the Supreme Court also commented on questions of mixed fact and law. At para. 26, the court stated:

Questions of mixed fact and law involve applying a legal standard to a set of facts…On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts. Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual…

[16] Recognizing that it is sometimes difficult to distinguish between a question of mixed fact and law and a question of fact, Justice Iacobucci, in Canada (Director of Investigations and Research, Competition Act) v. Southam Inc. 1997 385 (SCC), [1996] S.C.J. No. 116 provided these helpful comments at para. 35:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence“ means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact…

[17] An error of mixed fact and law may be reviewable on a correctness or on a palpable and overriding error standard. Housen, at para. 36, stated the following:

To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule…is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[18] In H.L. v. Canada (Attorney General) 2005 SCC 25, [2005] 1S.C.R. 401, at para. 110, the Supreme Court made the following comments regarding palpable and overriding error:

The standard of review for inferences of fact…is that of palpable and overriding error and its functional equivalents, including “clearly wrong”, “unreasonable” and “not reasonably supported by the evidence”.

[19] The Ontario Court of Appeal provided the following guidance in Waxman v. Waxman 2004 39040 (ON CA), [2004] O.J. No. 1765 at paragraphs 296, 297 and 300:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear…Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the results of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of these findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

Housen provides a detailed analysis of the “palpable and overriding” standard of review. Several specific points made in that analysis have direct application to the arguments advanced by the appellants. First and foremost, as indicated above, the “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inferences from primary facts. This court cannot retry any aspect of this case.

[20] The test for an appellate court determining whether the verdict of a jury of the judgement of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court in R. v. Yebes 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:

The test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[21] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision. See R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656. Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact. It is not entitled to retry the case. See Francis v. R., [1994] S.C.C.D. 5056.

Discussion

[22] During oral argument, the appellant raised a further issue related to issue #3 on page 2, which I propose to deal with first.

[23] The issue of whether the Trespass to Property Act applied on Pikangikum First Nation was not addressed in any fashion by the Crown or defence counsel at trial. Prior to releasing his decision, the trial judge raised the issue, informing counsel that his finding on this issue was “pivotal to the decision”. Defence counsel requested clarification. The trial judge indicated that he was “satisfied (that) the only power of arrest available to the officer is under the provincial statute (and)…if the provincial statute doesn’t apply he didn’t have a power of arrest and therefore he wasn’t in execution of his duty.”

[24] The trial judge indicated to counsel that he was prepared to give them an opportunity to make further submissions on that issue or, if they preferred, they could argue it at the appellate level.

[25] Defence counsel requested, and was granted, a short adjournment to consider his position. Upon return, counsel did not request a further adjournment to research the issue and prepare submissions. Defence counsel proceeded to make submissions on the issue, subsequent to which the trial judge held that the provincial Trespass to Property Act did apply on Pikangikum First Nation.

[26] On appeal, the appellant suggested that he was taken by surprise when the trial judge raised this issue. The appellant submitted that the onus was on the Crown at trial to establish that the Trespass to Property Act applied on the Pikangikum First Nation and that they had not done so. It was further submitted that the trial judge had therefore erred in raising and deciding the issue without an evidentiary foundation.

[27] The appellant further submitted that this discussion took place on the First Nation, a location where he did not have internet access available to him to assist in his research. As a result, the appellant submitted that he was unable to make properly informed submissions on this issue prior to the trial judge making his finding on it.

[28] The Crown submits that the trial judge properly raised this issue, expressly invited a request for an adjournment if counsel saw it as necessary and suggested counsel may prefer to address the issue at the appellate level. The trial judge allowed defence counsel an opportunity to consider his position. The Crown submits that defence counsel chose to proceed in light of this background

[29] The Crown submits that a trial judge has a responsibility to address issues which are obvious and material and which have not been put before the court by counsel at trial. The Crown submits that the trial judge properly raised an issue which he saw as pivotal to his decision and which had not been addressed by counsel during the trial. Further, the Crown submits that defence counsel was given a reasonable opportunity by the trial judge to consider his position.

[30] Finally, the Crown submits that this issue is framed as a primary issue on this appeal and that both the appellant and respondent have argued the issue fully in both written and oral submissions on this appeal.

[31] I do not accept the appellant’s submission that the conduct of the trial judge in regard to this issue was an error of law or somehow resulted in a miscarriage of justice, which is what I perceived the appellant to be implying. The law is clear that a trial judge has a responsibility to raise issues which may be relevant to the matters before him and which are not raised by counsel.

[32] In this case, the trial judge, after hearing evidence and submissions, came to the conclusion that it was necessary for him to make a finding as to whether the provincial Trespass to Property Act applied on the Pikangikum First Nation. If it applied, it would provide lawful authority to the officer to remove a trespasser. If it did not, the officer would not have been acting in the lawful execution of his duties when allegedly assaulted by Melvin Keeper.

[33] This position was clearly and fairly put to defence counsel by the trial judge. The trial judge provided an opportunity to defence counsel to consider his position. He also suggested that counsel may prefer to address the issue at the appellate level. Defence counsel, after being granted a short adjournment to consider his position, chose to proceed.

[34] I do not accept the appellant’s suggestion that he was taken by surprise or somehow given an unfair opportunity to address this issue. Defence counsel understood the issue, recessed to consider his position and chose to proceed to make submissions that day without requesting an adjournment. The appellant has also put the issue squarely before this appeal court. This ground of appeal, raised only in oral argument, is dismissed.

Issue #1

Did the trial judge err in finding that Cst. Mosquito was invited into the residence of Melvin Keeper on June 23, 2010?

[35] The trial judge found that “…the officer was invited into the residence and the entry was not forced...” This is a factual conclusion made by the trial judge. An appellate court may not interfere with this finding unless there is palpable and overriding error with respect to the underlying facts or the inference drawing process itself is palpably in error.

[36] The appellant submits that the trial judge’s finding that Cst. Mosquito was invited into Melvin Keeper’s residence was based only on what is submitted to be an ambiguous hand gesture made by Cornelius Keeper in response to the officer asking “what’s going on.” The appellant submits that there was no evidence before the trial judge of a request to enter the residence by the officer nor was there any evidence of verbal confirmation of Cst. Mosquito’s interpretation of this gesture. The appellant submits that, at best, the evidence supports a finding of only acquiescence or passive compliance with the officer’s entry into the residence.

[37] The trial judge’s factual findings leading to the factual conclusion that the officer was invited into the residence are found at para. 11 of the Reasons for Judgement. The trial judge found the following:

1. There was a call for service at the residence;

2. The officer was duty bound to respond to the call;

3. The officer, in uniform, approached the residence and knocked on the door;

4. The door was opened by Cornelius Keeper and the officer asked “what’s going on”;

5. In answer to this question, Cornelius Keeper made an open-handed sweeping gesture toward the interior of the home where the officer saw two people sleeping on the couch;

6. The officer testified that he took this to be both an invitation to enter the home and that the two people on the couch were the subject of the most recent call for service.

[38] I find that there was ample evidence to support the trial judge’s finding that Cst. Mosquito was invited into the Keeper residence on the day in question.

[39] The transcript confirms that the trial judge observed Cst. Mosquito mimic the gesture the officer had observed Cornelius make toward him. The officer testified that he had seen this gesture before and that he understood it to be an invitation to enter the home. The officer testified that, after entering the residence, he was told by Melvin Keeper that “they can go” and “they have to go” in reference to the Strangs.

[40] I see no error in the trial judge’s findings on the facts underlying the inference that the officer was invited into the residence. I also find that these facts amply support the inference drawn by the trial judge. In my opinion, this evidence is capable of supporting the finding that the officer was invited into the residence and that his entry was not forced.

Issue #2

Did the trial judge err in finding that there was no legal obligation on Cst. Mosquito to inform the occupants of the reasons for police attendance at the home?

[41] The trial judge held that “…the entry was not forced. There is no legal obligation in this situation to announce the purpose of the police attendance…”

[42] The appellant submits that in order for police to lawfully enter a residence on the basis of consent there must be factual findings that there was, prior to entry:

1. A clear request to enter;

2. A clear verbal affirmative response to the request to enter;

3. The informed consent of the occupier, which requires knowledge of the purpose of the police attendance at the residence, why the police want to enter and the consequences if they do enter.

[43] The appellant submits that the trial judge erred in law in holding that there was valid consent for Cst. Mosquito to enter the residence based on the factual findings noted under Issue #1 above.

[44] Analysis of this issue must bear in mind the factual finding of the trial judge that Cst. Mosquito’s entry into the Keeper residence was not forced. The appellant has not suggested that this finding is in error.

[45] In R. v. Evans 1996 248 (SCC), [1996] 1 S.C.R. 8, at page 30, the Supreme Court held that any homeowner extends an implied invitation to members of the public, including the police, to knock on their door. The implied licence to approach the door of a residence and knock is to permit communication with the occupant. Where the police act in accordance with this implied invitation, they cannot be said to be acting unlawfully. The implied invitation effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her home.

[46] The Supreme Court cautioned that the scope of the implied invitation and of the implied waiver of the occupant’s privacy interest is limited, requiring a determination of the purpose of the police in acting upon the implied invitation:

…the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The waiver of the privacy rights embodied in the implied invitation extends no further than is required to affect this purpose.

[47] After reviewing the Evans decision, Hill J., in R. v. Van Wyk [1999] O.J. No. 3515 (Ont. S.C.J.) (appeal to Ont. C.A. dismissed) found, at para. 33, that:

Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s. 8 of the Charter.

[48] In Van Wyk, Ms. Van Wyk responded to officers knocking at the front door of her home by opening the door. One of the officers asked if her husband was at home. Ms. Van Wyk was provided with no further information as to why the police wanted to speak to her husband. The court found that Ms. Van Wyk “…then invited the police into the house. Constable Anderson recalled Jean Van Wyk opening the door and employing a sweeping motion with her hand toward the interior of the residence as a signal to step inside.” See para. 20. The court found that Ms. Van Wyk, as a co-inhabi