CITATION: R. v. Boekwa, 2017 ONSC 705

COURT FILE NO.: CR-16-1673-00

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Andrew Falls, for the Crown

• and -

BOKETSU BOEKWA

Christopher Assie, for the Defendant

HEARD: January 16-20, 23, 2017 at Brampton

REASONS FOR JUDGMENT

Fairburn J.

I. Overview

[1] On March 20, 2015, Ms. Boekwa and her son threatened their neighbour with death. The neighbour called the police. The police arrived and then things went very badly, including two police officers being stabbed, an officer and a civilian being shot, and Ms. Boekwa’s son being fatally shot.

[2] Ms. Boekwa is charged with five crimes: (1) conspiracy to commit murder; (2) three counts of assault with a weapon; and (3) uttering a death threat. She concedes that she is guilty of counts three and four on the indictment: uttering a death threat to her neighbour Diana Cittadino and assaulting her with a weapon. As for the balance of the counts, involving the allegations of conspiracy and assaults of two police officers, she argues that the Crown has failed in its proof.

[3] These are my reasons for finding otherwise.

II. General Legal Principles

[4] I will deal with a few general legal principles at the outset of my reasons and leave the more specific ones until later.

[5] First, Ms. Boekwa is presumed innocent. She started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that she committed the crimes with which she is charged: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

[6] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense and one that logically arises from the evidence or absence of evidence. While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty.

[7] If after considering all of the evidence, I am sure that Ms. Boekwa committed an offence, then I will be satisfied of proof beyond a reasonable doubt in relation to that offence. If after considering all of the evidence or the absence of evidence, I am not sure that Ms. Boekwa committed an offence, then I will not be satisfied of proof beyond a reasonable doubt on that offence. (See D. Watt, Watt’s Manual of Jury Instructions, 2^nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; Lifchus, at paras. 36-40.)

[8] Ms. Boekwa chose to testify. In determining whether the Crown has proven beyond a reasonable doubt that she committed the offences, I must apply the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. She concedes that she is guilty of counts three and four on the indictment. This concession is well supported by the evidence. As for the balance of the counts, if I believe Ms. Boekwa’s evidence, then I must find her not guilty. Even if I do not believe her evidence, but it leaves me in reasonable doubt as to her guilt, then I must find her not guilty. Even if her evidence does not leave me in reasonable doubt regarding her guilt, I may only find her guilty of these counts if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that she committed the offences.

[9] I am mindful of the fact that I must consider the evidence as it relates to each count separately and assess criminal liability on each count independently.

III. The Evidence

(a) Chanel Felizor – The Daughter

[10] The accused’s daughter is Chanel Felizor. She is the half-sister of the deceased, Marc Ekamba. Ms. Felizor was 16 years old on March 20, 2015. Her first language is French.

[11] Ms. Felizor lived with her mother and brother at 3070 Queen Frederica Drive, Mississauga, unit 38. French was the main language used in the home. It is non-contentious that Ms. Cittadino lived with her family in unit 31. While their units were slightly offset, the Boekwa and Cittadino homes faced one another, separated only by a walkway.

[12] While things were good when the family first moved into unit 38, Ms. Felizor testified that Ms. Boekwa pulled her out of school towards the end of 2012 or beginning of 2013. Ms. Boekwa expressed the view that it was “God’s will” that her daughter not attend school. Ms. Felizor was kept at home and, for the most part, was not permitted to leave except to grocery shop with her mother.

[13] She testified that her mother and brother would talk about the Illuminati. Ms. Boekwa expressed the view that her son was a king, a direct descendant of a black king named “Mansa Musa”. Starting in about 2013, Ms. Boekwa began expressing the view that the neighbours were plotting evil against the family and that God was telling her this in her dreams. Ms. Boekwa said that the neighbour was a witch. Ms. Boekwa would throw water outside the front of the house in an effort to erase any witchcraft that may have been done.

[14] In the one to two weeks before March 20, 2015, Ms. Felizor overheard her mother and brother repeatedly discussing a plan to kill their neighbour. The first plan, referred to by the Ms. Felizor as “Plan A”, was to lure the neighbour into their home. They discussed how Ms. Boekwa would distract the neighbour with conversation and then Mr. Ekamba would stab her. If Plan A did not work, then they would resort to what Ms. Felizor referred to as “Plan B”, involving the brother stabbing the neighbour when she took her garbage out.

[15] While Mr. Ekamba would lead these conversations, Ms. Boekwa was part of them and would agree. She would say things like, “yeah, that is what we’re going to do”. Ms. Felizor testified that her mother would agree with “everything that [her brother] said”. Ms. Boekwa would also say that she thought that it was “what God really wants us to do”. Ms. Felizor also overheard them discussing what would happen if the police came. Ms. Boekwa expressed the view that she was not scared because God was on their side and would be there to protect them.

[16] Ms. Felizor testified that, on March 20, 2015, she overheard her mother and brother speaking. Her brother was repeating both aspects of the plan and her mother was saying, “today is the day” and that it was “going to happen today”. When Ms. Felizor and her mother returned from shopping that day, the witness saw the neighbour in front of the neighbour’s entranceway. Later that night, Ms. Boekwa told her daughter that she had thrown a knife at the neighbour. Ms. Boekwa said that her son had held her back and that the knife did not touch the neighbour.

[17] While Ms. Felizor recalls the police arriving later in the evening, she was on her laptop listening to music and shut her door. After a short while she heard someone go to the kitchen to grab something that she thought was a knife. She thinks it was a knife because she had earlier heard her brother speak about stabbing a police officer. After a few minutes she heard gunshots.

(b) Diana Cittadino – The Neighbour

[18] Ms. Cittadino lived across from the accused. The residences faced one another. She testified that when she used to throw her trash in the garbage bins, Ms. Boekwa’s son would have his “eyes glued” on her. She referred to this as “staring [her] down”. It made her feel uncomfortable.

[19] She testified about the events of March 20, 2015. She was sweeping the walkway between the rows of housing units when Ms. Boekwa and Mr. Ekamba came out of their home and started threatening her. Ms. Cittadino’s daughter took a 3.5 minute video of the incident. The video appears to have been taken from the upstairs of the Cittadino residence. I have watched the video and reviewed the transcript of its contents. To the extent that there are discrepancies between what I have read and what I heard, I proceed on the basis of what I heard.

[20] In brief, Ms. Boekwa said that Ms. Cittadino was “witching” her and that Ms. Cittadino’s Queen Elizabeth had stolen her son’s throne. She said that she and her son were of the “Mansa Musa family” and that if the throne was not returned, Ms. Cittadino’s blood would run. Ms. Boekwa is overheard saying that she would kill Ms. Cittadino, her mother and her kids if the throne was not returned, and that Queen Elizabeth was a thief. She expressed the view that this was God’s will.

[21] At one point, Ms. Boekwa went into her home. Mr. Ekamba is then overheard telling Ms. Cittadino that he knew she worked for the Illuminati, that she was a Satanist and a witch and that if his throne was not back by “tomorrow”, then “the blood of your kids, your family will drown”. Ms. Boekwa then returned. She is seen throwing a knife at Ms. Cittadino. Her son appears to attempt to restrain her while she is throwing the knife. While it missed the complainant, it appears to me that the knife was thrown directly at her, with Ms. Boewka raising her arm above her head and hurling the knife forward in the direction of Ms. Cittadino. The knife hit the ground before it reached the complainant and then skipped close to her right side. A steak knife with a 13 cm blade was later recovered from under a table in front of the Cittadino home. Ms. Cittadino called the police.

(c) The Police Evidence

[22] Three Peel Regional Police officers testified about the events that took place later that evening. Constables Dary and Paiment had been officers for almost seven years at the time. Cst. Whyte was hired as a police officer in August 2014 and had only been on the road for about two months as of March 20, 2015. Cst. Dary was her training officer. Ms. Whyte is now working as a civilian with the Peel Regional Police. As she was an officer on March 20, 2015, I will refer to her as Cst. Whyte.

[23] Ms. Cittadino’s 9-1-1 call was received sometime before 4:00 p.m. Given how the call was prioritized by the Peel Regional Police call centre, the officers did not arrive until just prior to 10:00 p.m. Each officer was wearing a plainly marked police issued uniform.

[24] The officers attended at the Cittadino home and were shown the video. Having watched the video, each officer testified about having formed reasonable and probable grounds to arrest Ms. Boekwa and Mr. Ekamba for uttering threats. While Cst. Whyte and Cst. Paiment acknowledged that they thought that there might be mental health issues involved, Cst. Dary did not agree. He testified that people react in certain ways for all kinds of reasons and, until exploring the matter further, he was not sure if the accused and her son were exhibiting signs of mental health difficulties.

[25] The officers proceeded to the Boekwa residence. As they were approaching the front door, each testified that they could see a male peering out of a window beside the door, after which he was seen running up the stairs. Shortly after they knocked, the same man who they had seen run up the stairs answered the door.

[26] I pause here to note that Ms. Boekwa argues that the police acted in excess of their lawful authority when they interacted with her son at the front door of the residence. She says that the police behaviour ultimately justified her response in relation to the conduct that gives rise to counts five and six on the indictment. Given Ms. Boekwa’s legal position, and the nuanced evidence regarding the interaction between the police and Mr. Ekamba at the front door, this evidence will be reviewed when I deal with the legal issue later in my reasons. For now, I will simply review the officers’ evidence respecting the events following the interaction at the door.

[27] While there are minor differences in the evidence regarding how the conflict between the officers and Mr. Ekamba started, eventually Mr. Ekamba and all three officers toppled over a metal fence into the front yard. The officers each testified about their attempts to restrain Mr. Ekamba and arrest him. These efforts proved challenging.

[28] Cst. Paiment testified that, while trying to restrain Mr. Ekamba, he heard Cst. Whyte scream out. Cst. Whyte testified that, while she was assisting her fellow officers in attempting to restrain Mr. Ekamba, she was struck in the head from behind. Cst. Dary testified that he saw Ms. Boekwa holding a pot in both hands. She raised it over her head and slammed it down on Cst. Whyte’s head. Cst. Whyte testified that she was in pain and clutched her head. She then felt her bullet proof vest being pulled from behind. She testified that she had to disengage from the group. Cst. Whyte testified that Ms. Boekwa looked panicked and wide eyed.

[29] Cst. Dary testified that he came to Cst. Whyte’s assistance, attempting to disarm Ms. Boekwa. It appeared as though she was attempting to strike Cst. Whyte for a second time. He attempted to intervene and the pot came down on his left shoulder, causing him pain. He then tackled Ms. Boekwa to the ground. Neither officer had serious injuries resulting from being hit with the pot.

[30] Cst. Dary testified that Ms. Boekwa was calling the officers devils and evil and saying that she was going to kill them. He described the whole scene as chaotic. He stayed with Ms. Boekwa and attempted to restrain her.

[31] While Cst. Dary and Cst. Whyte were involved with Ms. Boekwa, Cst. Paiment was left alone, on the ground, engaged with Mr. Ekamba. Cst. Paiment was stabbed in the leg. He first felt pain in his leg and then noticed the knife. He pushed off of Mr. Ekamba and warned his fellow officers about the knife. Cst. Whyte came back to Cst. Paiment’s assistance and, when Mr. Ekamba stood up, she deployed her pepper spray into his face. He screamed, wiped it out of his eyes, and ran.

[32] Cst. Paiment testified that within 10 to 15 seconds of Mr. Ekamba running away, he saw him returning from a distance of about 60 feet away. Mr. Ekamba was running toward the officer at “full speed” with a knife in his hand. Although he was yelling, Cst. Paiment could not make out his words. When Mr. Ekamba was 20 feet from Cst. Paiment, the officer testified that he opened fire. Mr. Ekamba fell to the ground when he was about eight feet from the officer. The knife was still clenched in his hand.

[33] Cst. Dary testified that shortly after he had seen Mr. Ekamba run away, he saw him running back with a knife in his hand. He was yelling at the officers to let his mother go or they would be killed. Cst. Dary testified that he issued the police challenge to stop and drop the knife. When Mr. Ekamba was 10 feet away, Cst. Dary discharged his firearm.

[34] Cst. Whyte testified that shortly after Mr. Ekamba ran away, she saw him running back toward them. She could see a knife in his hand. She pulled out her firearm and yelled: “Drop the knife. Stop running.” He continued and she discharged her firearm.

[35] Cst. Whyte testified that Cst. Dary moved into her line of fire and was accidentally shot in the back. Cst. Dary testified he felt the bullet and was in extreme pain, but knew that Ms. Boekwa still needed to be restrained. He and Cst. Whyte then worked at getting handcuffs onto Ms. Boekwa, while Cst. Paiment looked into the status of Mr. Ekamba. A civilian also came out of her home and told Cst. Paiment that she had been shot. When things got less chaotic, Cst. Dary realized that he had also been stabbed in the hand.

[36] Each officer testified regarding the danger that they perceived as Mr. Ekamba was running toward them with a clearly visible knife in his hand. Based on the totality of circumstances they described, each officer testified about their belief that officer safety was in immediate and present danger.

(d) Boketsu Boekwa – The Accused

[37] While Ms. Boekwa does not dispute much of what her daughter testified to, or what Ms. Cittadino testified to, she provided evidence about what she says was on her mind when she said and did certain things.

[38] She testified that she had good relations with her neighbours when she first moved into her home. It started to deteriorate a few years later because the neighbours began looking at her family like they were criminals. Ms. Boekwa testified about having revelations, including that she stop work and that her children stop going to school. She says that this was God’s will.

[39] She testified about a revelation she had that Mr. Ekamba was in a large open vehicle, saluting a big crowd of people. Ms. Boekwa testified that her son was destined to be the fifth King of Kings, to follow after Kings Moses, David, Jesus and Solomon. Ms. Boekwa testified that her son is a direct descendant of Moses from Israel.

[40] She testified that she and her son believed that the neighbours, including Ms. Cittadino, were working for the Illuminati. She believes that Ms. Cittadino is a witch. She had visions of a cat coming through the window of her home and attacking her. The cat later transformed into Ms. Cittadino.

[41] Ms. Boekwa explained that Queen Elizabeth is the head of the Illuminati, which she says is an organization that controls the world and glorifies Satan. Queen Elizabeth’s “throne” is actually Mr. Ekamba’s throne and it was stolen in ancient times. Ms. Boekwa testified that the throne needs to be returned.

[42] Among other things, Ms. Boekwa and her son were granted the responsibility of trying to get Queen Elizabeth and others, including some in Hollywood, to repent. God decides what should happen should people fail to repent, but it involves a punishment. In some cases, even if people repent, a punishment may be involved, albeit a lesser punishment.

[43] To this end, through the use of email, she would encourage people, including Queen Elizabeth, to repent. She believes that the Illuminati eventually blocked her email and the messages could not get through. She testified that the Illuminati also entered her home and planted listening devices.

[44] Ms. Boekwa testified that her son told her that the police wanted to do something to him and that they needed to “activate” a plan so that the police would receive a “green light” and come to the home. Mr. Ekamba used to tell people that they should remember him. Ms. Boekwa testified that this concerned her because it sounded like he would die, but she wanted to support him in the “prophecy” that he would be attacked by the police in their home. While her evidence was not always clear on this point, she testified that she did not want the police to attack her son, but that she had to assist him in “his mission”. The mission included an attack from the police. It was part of what was to happen. She said that they did not go to the police to give the “green light” because they did not have a message for the police. Their message was for the Illuminati.

[45] While Ms. Boekwa does not dispute her daughter’s evidence about the plans to kill Ms. Cittadino, she testified that there was no intention to go through with either plan. Rather, she and her son were articulating the plan so as to get the attention of the police, so that the police would come to their home. Knowing there were listening devices planted in their home, she believed that if she and her son spoke loudly about killing the neighbour, that the police would arrive. She referred to this as a “comedy”.

[46] During the confrontation with Ms. Cittadino on March 20, 2015, Ms. Boekwa testified that she did not mean what she said. Nor did she have any intention of hurting Ms. Cittadino when she threw the knife in her direction, throwing it in a way so that she ensured it would not strike the complainant. It was Ms. Boekwa and Mr. Ekamba’s hope that by acting out the comedy, the police would get the “green light” and attend at their residence so that the police would do what they wanted to do. This was all part of the prophecy.

[47] Ms. Boekwa testified that because they wanted the police to attend, Mr. Ekamba called 9-1-1 after the interaction with Ms. Cittadino on March 20, 2015. He told the police that he would kill someone. She testified that the call was made from her daughter’s iPad. Ms. Felizor was recalled as a witness and testified that she recalls her brother using her iPad to call the police that day. While she could not hear the whole conversation, she recalls hearing a voice at the other end of the phone call. The forensic report produced from the iPad suggests that no call was made from the iPad that day, or, in fact, for a few weeks in advance of March 20, 2015. Moreover, it is agreed that the police do not have a record of such a call being made that day.

[48] As for the events in the late evening of March 20, 2015, Ms. Boekwa testified that she was in the kitchen with a pot in her hand, about to fill it with water, when she heard a knock at the door. Mr. Ekamba called out that the police wanted to see her. Within about two seconds she heard a noise outside. With the pot still in her hand, she ran to the front garden and told the police to let go of her son. She testified that she instinctively swung the pot back and forth, right to left, horizontal with the ground. She had no intention of hitting the officers. She was solely focussed on saving her son.

[49] Ms. Boekwa testified that she was almost immediately taken to the ground and had officers on her back. She could not breathe. She said that she heard a sound and felt her soul depart. She testified that her son has not died. He has crossed to the other side and is coming back.

IV. Positions of Counsel

(a) Defence Position

[50] On behalf of Ms. Boekwa, Mr. Assie fairly acknowledges that the elements of the offences in counts three and four have been made out. He contests the balance of the indictment.

[51] As for the count of conspiracy to commit murder, it is argued that, at a minimum, Ms. Boekwa’s evidence should raise a doubt about the intention to carry out the plan to murder Ms. Cittadino. Mr. Assie argues that there was no true agreement to commit the offence of murder and no intent to kill Ms. Cittadino. It is like the plan was simply the product of two actors reciting lines while practicing a play.

[52] I am encouraged to accept Ms. Boekwa’s evidence on this point. If Ms. Boekwa was actually planning on killing the neighbour, it would make little sense to place her on notice of this fact because it would put her on guard. Moreover, it is said that the video capturing the incident supports the claim that this was simply play acting. The fact that her son is holding Ms. Boekwa back in the video is said to lend further support to her evidence that this was nothing more than a plan designed to get the police to come over and not a plan designed to murder Ms. Cittadino. While it is acknowledged that Ms. Boekwa may hold “controversial” views, her evidence should be considered in this light, and her true intent assessed against this backdrop.

[53] As well, despite the forensic evidence pointing away from a call being made to the police from Ms. Felizor’s iPad, the fact that Ms. Boekwa is sure that a 9-1-1 call was placed by her son, further supports the fact that she did not actually engage in the conspiracy alleged. Whether 9-1-1 was called or not, she is sure that the police were called and this supports the suggestion that it was never her intent to have Ms. Cittadino killed. The intent was to get the police to the residence. What is important is that she believed that she and her son were pursuing the goal of exposing the Illuminati and not of killing the neighbour.

[54] As for the counts alleging assaults on Cst. Dary and Cst. Whyte, Mr. Assie argues that the Crown has failed in its proof. His argument rests on a number of factual findings I am encouraged to make. Mr. Assie argues that I should find as a fact that: (1) Mr. Ekamba was in the doorframe of his home when the police reached out and initiated the arrest; (2) that Mr. Ekamba did not give a constitutionally valid consent for an officer to enter the home; (3) that the police initiated the arrest before Mr. Ekamba moved out of the doorframe; and (4) that the police actions were not taken to preserve officer safety.

[55] On the basis of these findings that I am urged to make, Mr. Assie argues that the police exceeded their lawful authority when they attempted to arrest Mr. Ekamba. In these circumstances, it is said that s. 34 of the Criminal Code is available to Ms. Boekwa as a justification for her conduct, as she committed the acts for the purpose of protecting her son. Mr. Assie acknowledges that if the police were authorized by law to do what they did, then the justification provided for defending another is not available.

(b) Crown Counsel

[56] Mr. Falls, on behalf of the Crown, argues that Ms. Boekwa’s guilt has been proven beyond a reasonable doubt on each count she faces. As for the conspiracy, he argues that Ms. Boekwa should not be believed that she was not serious when discussing the plan to kill the neighbour.

[57] As for whether the police exceeded their lawful authority in their dealings with Mr. Ekamba, thereby opening up the justification under s. 34, Mr. Falls argues that I should accept that officer safety concerns were real and present. The police did not exceed their authority when they acted as they did. He says that s. 34 does not apply.

V. Analysis in Relation to Each Count

(a) Count 3: Assault with a Weapon on Diana Cittadino

[58] There are many ways in which an assault can be committed, one of which is pursuant to s. 265(1)(b) of the Criminal Code, where a person threatens, by act or gesture, to apply force to another person and has the present ability to effect that purpose. As for the offence of assault with a weapon, s. 267(a) adds that the assault must be carried out using or threatening to use a weapon.

[59] Having regard to Ms. Boekwa’s threats to kill Ms. Cittadino, combined with the throwing of a knife at her, I agree with counsel that the elements of count three have been made out. Whether Ms. Boekwa intended to harm Ms. Cittadino is not the issue for purposes of this offence. The question is whether she intended to threaten by an act or gesture, to apply force and whether she had the ability to effect that purpose and used a weapon in the course of these events. While Ms. Boekwa testified that what she said to Ms. Cittadino, and the tossing of the knife, were born out of an ulterior motive, this is not the issue. Ms. Boekwa intended to threaten Ms. Cittadino with death and intended to throw the knife in her direction. The elements of assault with a weapon have been made out beyond a reasonable doubt.

(b) Count 4: Uttering a Death Threat to Diana Cittadino

[60] I find that the elements of count four have also been proven beyond a reasonable doubt. In order to find Ms. Boekwa guilty of uttering a death threat in count four, I must conclude beyond a reasonable doubt that she made a threat, that the threat was to cause Diana Cittadino’s death, and that the threat was made knowingly. The video alone establishes the elements of this offence beyond a reasonable doubt. The combination of the video and Ms. Boekwa’s own evidence well support a finding of guilt on this offence.

(c) Count 1: Conspiracy to Commit the Murder of Diana Cittadino

[61] As noted by Watt J.A. in R. v. Root, 2008 ONCA 869, at para. 65, the “gist” of a conspiracy is the agreement. The actus reus of the crime is the existence of the conspiracy or agreement. A distinction must be made between an intention to agree and an actual agreement. An intention to agree is not enough. For conspiracy to exist, four elements must be proven beyond a reasonable doubt: (1) an intention to agree; (2) the completion of the agreement; (3) a common unlawful design; and (4) an intention to put the common unlawful design into effect: Root, at paras. 65-66; United States of America v Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, at para. 86.

[62] The mens rea is linked to the goal of the agreement, which must be to commit the substantive offence: Dynar, at para. 103; Root, at para. 71. A person cannot simply pretend to agree. Moreover, at the moment the agreement is formed by the exchange of words, there must exist an “actual intention” that the substantive offence be committed. As noted in Dynar, at para. 103: “The goal of the agreement, namely the commission of the substantive offence, is part of the mental element – or mens rea – of the offence of conspiracy.”

[63] There is no dispute in this case that Ms. Boekwa and Mr. Ekamba engaged in the actus reus of the crime of conspiracy. They formed an agreement to kill Ms. Cittadino. Indeed, they formed two plans about how to go about the killing. Both plans involved stabbing her to death. Ms. Boekwa does not dispute this fact and, in fact, accepts that she engaged in these discussions with Mr. Ekamba and formed this agreement.

[64] The question that I must resolve is whether the Crown has proven beyond a reasonable doubt that she had an intention to put the common unlawful design into effect. She gave evidence about her intention when she was discussing the plans to kill her neighbour. As set out above, she said that the discussions were simply a ruse to get the police to attend her residence. In other words, the intention was not to put the common unlawful design of killing Ms. Cittadino into effect. Rather, it was to give a “green light” to the police so that they would come to the home.

[65] I reject Ms. Boekwa’s evidence as to the purpose of the plan. I do so for a number of reasons. First, I have watched the video multiple times. When Ms. Boekwa throws the knife at Ms. Cittadino, she looks as though she is aiming directly at her and putting effort behind her aim. She throws the knife with force and from the shoulder area. While she missed, the video supports that Ms. Boekwa wanted to hit Ms. Cittadino with the knife. This is consistent with a plan to kill her. While the action may not constitute the intention to put the plan into effect at that very moment, it reflects a desire to put the plan into effect at some point.

[66] While I accept Mr. Assie’s submission that if someone wishes to kill another, it makes little sense to warn them that it will happen the next day, this does not improve my confidence in Ms. Boekwa’s credibility. While counsel’s submissions might resonate in other contexts, they do not gain traction here. Ms. Boekwa admits that she did not like the neighbour. She expressed her deep distrust of the neighbours and her feeling that they were treating her family poorly. She also believed that the neighbours worked for the Illuminati, a group that she held responsible for her son’s failure to ascend to his pre-determined place. This was all supported by the evidence of Chanel Felizor. I find that these facts are consistent with Ms. Boekwa wanting Ms. Cittadino dead and the plan was formed with that goal in mind.

[67] I also find Ms. Boekwa’s explanation that she and her son were simply play acting, so that the police would come to their home, is lacking in credibility for another reason. If Ms. Boekwa and her son wanted to engage with the police, they could have done this in any number of ways, including attending at a police station or calling the police to come over. In fact, while the forensic evidence in this case stands in direct contradiction to Ms. Boekwa’s suggestion that her son called 9-1-1 after the events caught on video, her testimony supports the fact that Ms. Boekwa knew that police attendance could have been secured for the asking. This evidence suggests that she and her son knew how to get the police to attend by making a simple 9-1-1 call. The suggestion that they formed an elaborate plan to kill the neighbour as a ruse to obtain police attendance does not ring true. I reject the suggestion that the plan was rooted in anything other than an actual intent to put the common unlawful design into effect.

[68] I am satisfied beyond a reasonable doubt that there was an agreement between Mr. Ekamba and Ms. Boekwa to kill Ms. Cittadino and that Ms. Boekwa intended that the common unlawful design be put into effect. A finding of guilt will also be registered on count one.

(d) Counts Five and Six: Assaults with a Weapon of Jennifer Whyte and Brandon Dary

(i) Elements of the Offence

[69] In closing submissions, there was no suggestion that Ms. Boekwa did not hit the officers with a pot. Rather, the submissions focussed on the fact that Ms. Boekwa should be found not guilty of these offences because she was justified in her actions which were directed at defending her son from the police.

[70] As above, there are multiple forms of assault. The elements of the assault alleged in counts five and six are: (1) that Ms. Boekwa intentionally applied force to the complainants; (2) that the complainants did not consent to the force that she intentionally applied; (3) that she knew that they did not consent to the application of force; and (4) that a weapon was involved in the assault.

[71] I will briefly deal with the first element of assault with a weapon, the intentional application of force. At times in her evidence, Ms. Boekwa seemed to suggest that while she had a pot in her hand when attempting to get the officers to leave her son alone and while she was moving it side-to-side, she did not intend to hit the officers with the pot. While it was not entirely clear from her evidence, she acted out the motion a number of times, moving her arm from left to right, horizontal with the floor.

[72] To the extent that she may have been suggesting that she did not intentionally strike the officers, I reject her evidence on this point. She acknowledged that she went to her son’s assistance, “like any mother [would] do”. She acknowledged that she was trying to “save [her] son from the hands of the police”. These comments point toward the intentional use of the pot to strike the officers to stop them from detaining her son.

[73] Moreover, I find that while she may have been in the kitchen about to fill a pot with water when the police arrived, the fact that she carried the pot all of the way from the kitchen, located at the back of the house, to the front of the house, outside, and then over the metal fence, suggests that she intended to use the pot to strike the officers. To the extent that she may have suggested that her striking of the police with the pot was an accident, I reject this evidence.

[74] As for the police evidence on this point, I accept it as true. The pot was produced in evidence and Ms. Boekwa concedes that she had it in the front yard. She must have had it there for a reason. Cst. Whyte’s evidence, that she felt a strike to the back of her head, is entirely consistent with Cst. Dary’s observations at the time, including that Ms. Boekwa held the pot over her head and brought it down onto Cst. Whyte’s head. It is also consistent with Cst. Paiment’s evidence that he heard Cst. Whyte yell.

[75] I further accept Cst. Dary’s evidence that Ms. Boekwa attempted to strike Cst. Whyte a second time but that, when he intervened, he was struck. His evidence was clear and straightforward on this point. It is consistent with how the other officers described the scene and, indeed, how Ms. Boekwa described it.

[76] While it was not raised in closing submissions, to the extent that Ms. Boekwa may have been intending to strike Cst. Whyte a second time, when she actually struck Cst. Dary’s shoulder, I find that her intent to strike the first officer simply transferred to the second. I have no doubt that she had the intention to apply force to both officers, that they did not consent to the application of force and that she knew they did not consent. I also have no doubt that the pot was a weapon within the meaning of s. 267(a) and s. 2 of the Criminal Code. There has been no suggestion to the contrary.

[77] This leaves the issue of defence of another under s. 34 of the Criminal Code.

(ii) Section 34: Defence of Another and Police Authority

[78] This brings us to the question of whether the police acted in excess of their authority, thereby granting Ms. Boekwa access to the “defence of person” provision under s. 34(1) of the Criminal Code. There are three statutory prerequisites within s. 34(1) as it relates to the defence of another person. In brief, the accused must believe on reasonable grounds that force is being used against another person, that the act constituting the offence is committed to defend that person from the use of force, and that the act is reasonable in the circumstances.

[79] Section 34(3) precludes resort to this defence – which is actually a justification for otherwise culpable conduct – where the person applying the force in the first instance is doing “something that they are required or authorized by law to do” in the course of enforcing the law. In other words, s. 34(3) of the Code prevents an accused from justifying her conduct under s. 34(1) where she is responding to force used by a police officer in the lawful course of her or his duties. The exception is where the accused “believes on reasonable grounds” that the officer is acting “unlawfully”.

[80] There is no suggestion here that Ms. Boekwa believed on reasonable grounds that the police were acting unlawfully when she hit them with the pot. The sole question is whether the police were, in fact, acting unlawfully and in excess of their duties at the time. If so, notwithstanding the fact that Ms. Boekwa engaged in conduct that constitutes the offence of assault with a weapon, she may have been justified in her actions. The first thing that needs to be determined is whether the police were acting in excess of their duties.

(iii) Evidence Regarding the Interaction at the Door

[81] While Mr. Assie acknowledges that the police were legally entitled to walk up to the front door of the residence, knock, and discuss the matter with Mr. Ekamba, they were not legally entitled to remain on the property once Mr. Ekamba told them that he would not come out. Once Mr. Ekamba said this, the police should have left the property.

[82] Mr. Assie also argues that I should reject the police evidence that they were acting out of bona fide safety concerns. Counsel suggests that there was no indication that Mr. Ekamba had a weapon. Nor was there a constitutionally compliant consent that a police officer could enter the residence. Mr. Assie says that the logic of R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 applies in this case. He argues that its purpose would be entirely defeated if the police were permitted to do what happened here because it would be all too easy to effect arrests by saying safety concerns had been triggered.

[83] These arguments require me to come to a factual determination on a number of points. To this end, I will review the officers’ evidence about the interaction at the doorway. Recall that each officer testified that they watched the video and formed the grounds to arrest. Recall also that as they walked toward the front door of the Boekwa residence, they saw Mr. Ekamba looking out the front window beside the door and then saw him run up the stairs.

[84] Cst. Paiment testified that after the officers knocked at the door, Mr. Ekamba eventually opened it and stood in the doorframe. His hands were in a large pocket at the front of the hoodie sweatshirt he was wearing. Cst. Paiment is not sure whether the officers were on the porch or just off of it, but he thought that they were about four to five feet away from Mr. Ekamba.

[85] I have viewed pictures of the front of the home. There is walkway leading toward the row of houses in which unit 38 rests. The walkway steps up onto a bricked area that runs in front of two units. The units appear to have a step-up concrete slab in front of their doors. One would need to step onto the concrete slab to access the doorway, which rests only a few feet from the bricked area. There are metal railings that surround grassy areas in front of the homes.

[86] Cst. Paiment testified that his two colleagues were positioned to his right and slightly behind him. He told Mr. Ekamba that the police wanted to speak about the incident that had occurred with the neighbour and asked him to come outside with his mother. Mr. Ekamba said that he would not come out. Cst. Paiment told him that if he was not coming out, then the police “were going to have to come inside to talk to him and his mother”. Mr. Ekamba said that he and his mother were not coming outside. After he “thought about it for a second”, Mr. Ekamba said that one officer could come in at a time. Cst. Paiment later qualified this evidence and testified that Mr. Ekamba said that one officer could go in.

[87] Cst. Paiment thought that this was a “trap”. Mr. Ekamba had a “weird look in his eyes” and was looking at the officer with a “blank stare”. Cst. Paiment started to get nervous about the situation. He “believed he had a weapon in his pockets” and ultimately thought it was a gun. He asked Mr. Ekamba to remove his hands from his pockets. Mr. Ekamba looked him “dead in the eye” and said, “I’m not taking my hands out of my pockets.”

[88] Cst. Paiment feared for his and the other officers’ safety. This belief was based in part on having seen the man run up the stairs when the police first arrived. In Cst. Paiment’s experience, people typically do not do that “for no reason”. He thought that perhaps Mr. Ekamba had gone upstairs to get a weapon. When Mr. Ekamba would not take his hands out of his pockets, the officer thought that he was clenching a weapon.

[89] Cst. Paiment felt it was “urgent” to make the arrest because of officer safety. He whispered to Cst. Dary: “We’re going to engage this guy right now and try to arrest him.” He then grabbed Mr. Ekamba. He thinks that Officer Dary did as well. A struggle ensued and all three officers and Mr. Ekamba fell backward over the metal fence and ended on the ground out front of the home.

[90] Cst. Dary testified that the officers went over to unit 38 to arrest Mr. Ekamba and Ms. Boekwa. After seeing the video, he was “thinking that these people really don’t like their neighbours and they made some very credible threats, and that they needed to be arrested for the safety of the complainant and their family”. Cst. Dary testified that he noticed Ms. Boekwa throwing the knife at Ms. Cittadino in the video .

[91] According to Cst. Dary, when Mr. Ekamba answered the door, he stepped out onto the front porch area and left the door slightly ajar. Cst. Dary recalls Cst. Paiment telling Mr. Ekamba that he and his mother had to attend 12 Division with the officers and that they were going to be arrested for uttering threats. Cst. Dary testified that Mr. Ekamba was extremely upset and displayed aggression, yelling and telling the officers to go “fuck” themselves. He did not want to get his mother.

[92] He told the officers that one could come into the home. For officer safety reasons, Cst. Dary testified that they did not do that. Cst. Dary denied that Cst. Paiment said that if Mr. Ekamba did not come out, then the officers would go into the home. He acknowledged that to enter the home to make an arrest that the police would need a Feeney warrant.

[93] Mr. Ekamba had his hands in his pockets. Mr. Ekamba did not remove his hands when told to do so. He was clenching his teeth and getting into what Cst. Dary referred to as a “fighting stance” with one foot back. Cst. Dary “believed” that Mr. Ekamba was about to attack the officers. He decided to gain control of him, “to prevent any injuries to himself, or my colleagues or myself as quickly as possible”. He placed his hand on Mr. Ekamba’s left hand. Almost simultaneous with Cst. Dary reaching out and touching his hand, the man came toward the officers and everyone went back over the metal fence. Cst. Dary described it this way: “He exited the house. And while I was trying to put my hands on him to arrest him, that is when he engaged in the confrontation.”

[94] Like Cst. Paiment, Cst. Whyte placed Mr. Ekamba in the doorframe during the initial interaction with the police. The door was in an open position. She said that the lighting was not good in the porch area and that Cst. Paiment used his flashlight. Like the other officers, she testified about Mr. Ekamba’s hands being in the front pouch of his hoodie.

[95] She did not speak to Mr. Ekamba and could not recall which officer asked him to come out to speak with them about the earlier threats that had been made. He said to the officers, “fuck you, I’m not coming outside”. While Mr. Ekamba said that one officer could enter the home, Cst. Dary explained to him that this could not be done for safety reasons. He did not appear angry and did not raise his voice. He did not want to speak with the police.

[96] Cst. Whyte was very uncomfortable with what was occurring. She had an “uneasy feeling”, partly arising from the fact that Mr. Ekamba had run up the stairs and she could not figure out why someone would do that when the police were coming to their door. While he was calm, he was also “confrontational”, as manifested in his swearing and unwillingness to come outside.

[97] She testified that Cst. Paiment was to her right and Cst. Dary to the right of Cst. Paiment. Cst. Paiment told Mr. Ekamba to get his hands out of his pockets, to which he responded: “I will not”. Cst. Whyte testified that, at this point, Mr. Ekamba simply lunged at the officers. To her recollection, it was the male that initiated the contact.

[98] I find that each of the officers testified in a straightforward and careful manner. Where necessary, they used notes, but each seemed to have a fairly good recollection of the incident and the moments they spent at the front door.

[99] While their testimony varies in some regard, I find that each was doing their best to accurately recount what occurred during the interaction at the front door. The variances include when Cst. Dary testified that Mr. Ekamba was angry, aggressive and animated. This is to be contrasted with Cst. Whyte, who described him as somewhat calm, although non-cooperative, telling the officers “fuck you”. Another example is Cst. Paiment, who had the officers positioned differently than Cst. Whyte. While Cst. Whyte says that she was standing on the far left of the officers while facing the door, Cst. Paiment said that he was in the same position, but slightly ahead of the other officers.

[100] These variances do not trouble me. They are very likely the product of the context in which the officers found themselves at the time. As will be discussed below, I accept the concerns each of the officers expressed for their safety in these highly unpredictable and potentially volatile circumstances.

[101] The fact that the officers did not give identical evidence about what happened at the door provides me with confidence in their credibility and the fact that their evidence was not contrived. It demonstrates that they gave their evidence based on their own recollections of how they perceived the events through their own eyes.

[102] While I found Cst. Dary to be a somewhat combative witness from time-to-time, even refusing to acknowledge the obvious, including that the video he watched at Ms. Cittadino’s home could suggest the existence of some mental health issues, his nature in the witness stand does not substantially shake my confidence in his evidence.

[103] I find that each officer tried their best to recount what they saw, heard, said and did during that night. Cst. Paiment even conceded that he could not remember whether he said anything to Mr. Ekamba as he ran toward the officer with a knife. His evidence on this point was telling in terms of his credibility: “It happened so quick. I don’t remember if I said anything to him or not. I don’t want to lie and say I said something if I didn’t.” This comment demonstrates his genuine desire to recount the events as accurately and truthfully as possible.

(iv) Analysis

[104] In R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8, the court established that the police hold an implied licence to approach the door of a residence and knock. This is sometimes referred to as the implied licence to knock. Approaching the front door of a residence will not result in an invasion of privacy “if the purpose of the police is to communicate with the occupant”: R. v. MacDonald, 2014 SCC 3, at para. 26. Where, though, the police conduct goes beyond that which is permitted by the implied licence to knock, “the implied ‘conditions’ of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder”: Evans, at para. 15. Where the police act as intruders, their actions constitute a search within the meaning of s. 8 of the Charter: MacDonald, at para. 26.

[105] Mr. Assie acknowledges that the police had the right to approach the door, knock and communicate with the occupants about whether they were prepared to step out and be arrested. He argues, though, that the implied licence to be on the property to communicate with the occupants about this point was revoked as soon as Mr. Ekamba told the police that he was not going to come out to be arrested. At that point, the police should have left the property.

[106] While Mr. Assie acknowledges the right to approach the door and communicate with the occupants about the potential to be arrested, he relies upon Feeney to say that if the person does not step out, the police cannot enter. Feeney recognizes an indisputable legal principle regarding a person’s important and powerful privacy interest in their home: R. v. Tessling, 2004 SCC 67, at para. 22. As noted by Binnie J. in Tessling, at para. 22,

The original notion of territorial privacy ("the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J.: "[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'"; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at para. 43), in diluted measure, in the perimeter space around the home (R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3; R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at pp. 237 and 241; R. v. Wiley, 1993 69 (SCC), [1993] 3 S.C.R. 263, at p. 273) ….

[107] In the wake of Feeney, the statutory scheme captured under ss. 529 to 529.5 of the Criminal Code was enacted to allow for home entry authorizations to be obtained in order to make an arrest inside of a home. While there is some factual dispute about whether Mr. Ekamba was in the doorframe or on the front porch, I find as a fact that he was in the doorframe of the home when he was communicating with the officers. Cst. Whyte and Cst. Paiment are consistent in this regard and I accept their evidence on the point. I find that their evidence is consistent with the fact that Mr. Ekamba told the officers that he was not prepared to leave the home to be arrested. It seems that this suggestion is much more likely to have been made while standing in the doorframe, than while standing on the porch already outside of the house.

[108] Cst. Whyte circled where she saw Mr. Ekamba standing and I accept her evidence on this point. It is quite literally in the interior of the doorframe. Where she positioned Mr. Ekamba is consistent with Cst. Paiment’s evidence. In these circumstances, Mr. Assie argues that, barring legitimate officer safety concerns, the police were not entitled to arrest his client because it would have constituted a home “entry”.

[109] While one might engage in legal debates about whether being inside of a doorframe is inside or outside of a home, or stepping one foot onto a porch entitles the police to arrest in these circumstances, the issue is unnecessary to resolve in this case.

[110] What is important is that there was an implied licence to enter upon the property and knock to communicate with the residents. In this case, the communications and circumstances surrounding the communications, quickly descended into officer safety concerns. While these concerns are often considered in the context of an investigative detention, and the police search powers that can be engaged in such an environment, the police were not investigating here. Rather, they were trying to communicate about whether Mr. Ekamba and his mother would either step out or attend at 12 Division to be arrested for threatening their neighbour.

[111] I find that in the context of this brief communication with Mr. Ekamba, each officer developed a subjective belief that their safety was at imminent and serious risk. While barring exigent circumstances, the police were not entitled to enter the dwelling-house to arrest, they could discuss the matter at the front door without entering the home. While they would have had to leave and get a Feeney warrant if the communication had ended and the door closed, this is not what happened. While Mr. Ekamba said he would not come out, he did not say he would not communicate. Nor did he tell the officers to leave.

[112] While Cst. Paiment told Mr. Ekamba that if he did not step outside to be arrested, the police would come in, and he was wrong in law to say this, in the end, this is not what occurred. Had this occurred, this may have been a very different case with a different legal analysis applied. Constitutional issues should not be decided, though, on what might have happened.

[113] I find as a fact that there is a direct temporal overlap between the limited and fleeting communications between the police and Mr. Ekamba at the door, and the development of officer safety concerns. The officers each testified about their subjective beliefs that their safety was at risk. While they articulated this in different ways, I accept all of their evidence regarding their subjective level of fear and what informed it.

[114] I find that the subjective belief that their safety was at risk is objectively reasonable in all of the circumstances. While I am using terminology rooted in “reasonable belief”, it is because of the factual findings I make in this case. As Doherty J.A. held in R. v. McGuffie, 2016 ONCA 643, at para. 52, while the reasonable grounds language from MacDonald may be open to interpretation, for purposes of this case, like the McGuffie case, I have no doubt that the officers had “sufficient grounds to believe there was an imminent threat to [their] safety”. While I rely on McGuffie, at para. 52, for the proposition that the reasonable belief of an imminent threat “could … be based on the reasonable suspicion” that Mr. Ekamba had a weapon in his pocket, I am satisfied that the police had more than a reasonable suspicion here. They had reasonable belief.

[115] They were facing a man who they had seen and listened to on a video, tell his neighbour that if he did not get his throne back, “the blood of your kids, your family will drown, I’m not joking. And I swear to God. I swear the blood of your kids, your family will drown tomorrow if I don’t get my throne back.” I have watched and listened to the video multiple times. While Mr. Ekamba’s words may have had their genesis in what has been described as a controversial world view, his serious threats to the neighbour are unmistakeable. He does not appear to be speaking in jest. This is what the officers knew as they approached the door, that whatever caused Mr. Ekamba to feel this way about his neighbour, he made a serious threat to wash her family in blood and soon.

[116] The officers are consistent in their evidence, which I accept, that as they approached the door they saw Mr. Ekamba run up the stairs. It is reasonable to have assumed that he may have done this to retrieve a weapon. These observations were then followed by Mr. Ekamba taking up a stance in the doorframe and refusing to remove his hands from his pockets when he was asked. While he was under no legal obligation to remove his hands, his outright refusal to do so, against the backdrop of all of the other facts, was yet another factor that objectively supported the increasing reasonable fear and belief that officer safety was at imminent risk.

[117] While Cst. Paiment and Cst. Dary’s evidence is slightly different in terms of the initial touching of Mr. Ekamba, I accept their evidence that as they reached out to arrest him, almost simultaneous with that happening, he lunged toward them. I accept that the officers made the first move and likely touched Mr. Ekamba before he moved toward them. To this end, I find that Cst. Whyte is simply mistaken when she says that she believes that Mr. Ekamba made the first move. Her mistake on this point could arise from the fact that she was the junior officer on scene and, according to her, left it to the more senior officers to communicate with Mr. Ekamba. As such, she may not have been in as good a position as the other two to determine who moved first.

[118] Bearing in mind the constellation of factors at play, and the reasonable belief in officer safety, it was entirely open to Cst. Paiment and Cst. Dary to make the move to arrest Mr. Ekamba before Mr. Ekamba moved. Indeed, even if the doorframe of the home constitutes a “home entry” within the meaning of Feeney, and would usually require a warrant, s. 529.3(1) of the Criminal Code allows a peace officer to enter a dwelling-house without a warrant to apprehend a person in circumstances where the officer has “reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant [to enter and arrest] exist but by reason of exigent circumstances it would be impracticable to obtain a warrant”.

[119] The officers had to make a split second call in circumstances where they thought the man they were facing, the same one who had hours before threatened to wash his neighbour in blood, had a weapon in his pocket. Indeed, Cst. Paiment believed it was a firearm.

[120] It is not fair to parse police interactions, like those in this case, by separating them according to seconds. There must be some sensitivity to the nature of the police power exercised and the context within which it is exercised. The words of Doherty J.A. in R. v. Golub (1997), 34 O.R. (3d) 3097 (C.A.), at para. 18 , leave dismissed [1997] S.C.C.A. No. 571, apply to this case:

The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

To a similar effect, see the recent comments of Gillese J.A. in R. v. Carlese-Brown, 2016 ONCA 943, at para. 28.

[121] While it has been suggested that officers could simply claim safety concerns and thereby circumvent the Feeney requirements, this claim could be made of any police power. The key is to assess the factual circumstances informing the exercise of powers to determine whether they were exercised appropriately.

[122] Here, I conclude that the officers reached out to arrest Mr. Ekamba because they reasonably believed that at that very moment, their lives were at risk. It has been suggested that even if they thought their lives were at risk they could have walked away. I disagree. They were facing a man who they reasonably believed had a weapon in his pocket and was about to use it. To require the police to turn their backs and walk away in these circumstances would only compound the safety risks to officer safety and, potentially, to others.

[123] The police acted within their lawful authority when they reached out to touch Mr. Ekamba to arrest him in the circumstances they faced. As they did not exceed their lawful authority, Ms. Boekwa cannot resort to the defence provisions within s. 34(1) of the Criminal Code to justify having hit Cst. Whyte and Cst. Dary with the pot.

(iv) Conclusion on Assault with a Weapon Counts Five and Six

[124] I am satisfied beyond a reasonable doubt that the elements of assault with a weapon in counts five and six on the indictment have been proven.

VI. Conclusion

[125] I am satisfied beyond a reasonable doubt that Ms. Boekwa is guilty of the five counts she faces. Findings of guilt will be registered.

Fairburn J.

Released: January 27, 2017

Corrigendum dated January 30, 2017: The word “of” is added to para. 84. In the first sentence of para. 92, the word “one” replaces the word “they”.

CITATION: R. v. Boekwa, 2017 ONSC 705

COURT FILE NO.: CR-16-1673-00

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

BOKETSU BOEKWA

REASONS FOR JUDGMENT

Fairburn J.

Released: January 27, 2017