Court File and Parties
CITATION: HMTQ v. Corbeil, 2017 ONSC 7624
COURT FILE NO.: CR-167-17-AP
DATE: 20171219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
GIRARD CORBEIL and MARY CORBEIL Appellants
COUNSEL:
Natalie M. Boivin, for the Crown.
Trent Falldien, for the Appellants.
HEARD: December 18, 2017
BEFORE: R. D. GORDON, R.S.J.
Overview
[1] Following a trial in the Ontario Court of Justice, the Appellant Girard Corbeil was found guilty of: (1) Assaulting Constable J. Sell, a peace officer engaged in the execution of his duty, contrary to section 270(1)(a) of the Criminal Code of Canada; (2) Resisting Constable J. Sell, a peace officer, engaged in the execution of his duty, contrary to section 129(a) of the Criminal Code of Canada; and (3) Resisting Constable A. Groleau, a peace officer, engaged in the execution of his duty, contrary to section 129(a) of the Criminal Code of Canada. The Appellant Mary Corbeil was found guilty by the same court of obstructing Constable J. Sell, a peace officer, engaged in the execution of his duty, contrary to section 129(a) of the Criminal Code of Canada. Other offences against both Appellants were stayed.
[2] Mr. and Mrs. Corbeil appeal the decision of the trial judge on three grounds: (1) That the evidence does not legally support the convictions because the police were not in the lawful execution of their duties; (2) That all evidence was obtained in contravention of their right to be free from unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms; and (3) That the trial judge misapprehended and improperly assessed evidence.
Background Facts
[3] Mr. and Mrs. Corbeil were attending a party held in the detached garage of a residence in Greater Sudbury. In response to an anonymous noise complaint, Constables Sell and Groleau attended the residence at 4:48 a.m. Upon exiting their cruiser they heard loud music and voices coming from the garage. The house was dark and silent. They approached the garage.
[4] They encountered Mr. Corbeil who was outside the garage on the other side of a wooden fence. They asked for the owner of the property. A discussion ensued. That discussion was not productive. Mr. Corbeil came from behind the fence and an altercation ensued in which Mr. Corbeil was on the receiving end of several blows and a shot of pepper spray from the police. Part way through the scuffle, the remaining party-goers began to surround the police and Mr. Corbeil. Mrs. Corbeil took some offence to the manner in which her husband was being treated. She charged at the back of one of the officers.
[5] Eventually, the police were able to gain full control of the situation and laid the charges which ended up before the court.
[6] The position of the Crown was that when Mr. Corbeil came towards the police from behind the fence he did so with a raised fist and yelling profanities, thereby assaulting the police. Their subsequent efforts to subdue and arrest him were lawful and an appropriate response to the resistance they met.
[7] The position of the Appellants was that the police were unlawfully on the property and had no right to question Mr. Corbeil. Mr. Corbeil’s version of events was that while he attempted to set his cell phone to record the events, one of the officers initiated physical contact with him kicking him in the leg, and then everything went black until he heard his wife yelling at him not to move. He recalls getting kneed in the head and kicked as he tried to get off the ground. He says that all of his actions were a reasonable response to the unlawful assault of the police on him.
Standard of Review
[8] Section 686(1)(a) of the Criminal Code of Canada provides that an appeal may be allowed where the verdict of the trial judge is unreasonable or cannot be supported by the evidence, where the trial judge has made an incorrect decision on a question of law, or on any other ground that results in a miscarriage of justice.
[9] The Court of Appeal decision in R. v. W.(G). 1996 CarswellOnt 3194 provided a helpful summary of the standard of review to be applied when the issue is whether the verdict is unreasonable or cannot be supported by the evidence. It held that the appropriate standard is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. It held that the appeal judge must re-examine, and to some extent, re-weigh and consider the effect of the evidence, however, the reviewing court should show great deference to the trial judge’s findings of credibility. The appeal judge must not try the case de novo or simply substitute his views for those of the trial judge.
[10] On questions of law, the standard of review is correctness.
Analysis
Issue #1 – Whether the Police Were Acting in the Lawful Execution of Their Duties
[11] In R. v. Evans, 1996 CanLII 248 (SCC), 1996 CarswellBC 996, the Supreme Court of Canada confirmed that the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling. The court went on to hold that the implied invitation to knock extends no further than required to permit convenient communication with the occupant of the building. The “waiver” of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the “implied licence to knock”. Where the conduct of the police (or any member of the public) 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.
[12] The trial judge found as fact that the police were responding to a noise complaint and that when they arrived at the property in the early hours of the morning, the music and voices emanating from the garage on the property were loud. I agree that the police were entitled to enter upon the property for the purpose of communicating with the occupant of the property to address this issue. There is no credible evidence that they entered upon the property for any other purpose.
[13] The altercation involving Mr. and Mrs. Corbeil arose not from the police attendance upon the property, but from the words and actions of Mr. Corbeil, as found by the trial judge.
[14] Mr. Corbeil was not the owner of the property. He had no authority to order the police from the property and no authority to declare them trespassers. As the first person encountered by police, it was within the reasonable execution of their duties to ask Mr. Corbeil if he was the owner, and if not, where the owner could be located. Their doing so hardly amounted to the “interrogation” alleged by the appellants.
[15] The trial judge’s finding that the police were acting in the execution of their duties when they attended upon the property and spoke with Mr. Corbeil is beyond reproach.
[16] Mr. Corbeil also argued that the trial judge’s finding that he assaulted the police cannot stand because he did not actually strike them, and was not within striking range when he raised his fist to them. I disagree. Section 265(1)(b) of the Criminal Code of Canada provides that someone who threatens, by an act or gesture, to apply force to another person, and has or causes the other person to believe on reasonable grounds that he has present ability to effect this purpose, commits an assault. The trial judge found that Mr. Corbeil was agitated and suddenly came towards police with a raised fist, yelling profanities. Her finding, given all the circumstances, that this constituted an assault, is unassailable.
Issue #2 – Was There a Breach of Section 8 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[17] The trial judge determined that there was no search. She found that the police were duty bound to investigate the noise complaint that had been made and were entitled to attend on the property where the noise was heard and ask to speak to the homeowner. She found that Mr. Corbeil had no authority to expel the police from the property. From her words I infer her finding that Mr. Corbeil had no reasonable expectation of privacy.
[18] In R. v. Edwards, 1996 CanLII 255 (SCC), 1996 CarswellOnt 1916, the Supreme Court of Canada held, among other things, that the onus is on the accused to establish that his personal rights to privacy have been violated, that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances, and that the factors to be considered in assessing the totality of the circumstances may include, but are not restricted to: (i) presence at the time of the search; (ii) possession or control of the property; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.
[19] There was little, if any, evidence before the trial judge upon which she could have found Mr. and Mrs. Corbeil to have a reasonable expectation of privacy. Although obviously present, neither had possession or control of the property. Neither of them was an owner of the property. Neither had any historical use of the property. Neither had the ability to regulate access to the property. The finding of the trial judge that they lacked a reasonable expectation of privacy is well founded on the evidence.
Issue #3 – Was There a Misapprehension of the Evidence?
[20] The Appellants submit that the trial judge misapprehended or ignored two significant pieces of evidence.
[21] The first is the transcript of police communications with dispatch setting out the timeline of events. According to the transcript, the police were in their cruiser when they were at the residence and communicated with dispatch at 4:52:24 a.m. Their next communication with dispatch was at 4:54:19 when they report: “40, he’s fighting with us, get another unit here.” The time lapse between the two entries in the transcript is just 1 minute and 55 seconds.
[22] The Appellants point out that this corroborates the evidence of Mr. Corbeil that he was attacked by police very shortly after they confronted him, and refutes the evidence of police that several minutes passed between when they confronted him and when the physical altercation began. They argue that this evidence, if properly considered, would significantly impact the credibility assessment made by the trial judge, particularly given the defence evidence and the application of the principles set out in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[23] The trial judge made reference to the transcript when she stated: “The police communications at exhibit four along with the transcript as exhibit five add value to the evidence of the police that the incident occurred and escalated very quickly.”
[24] The police were asked about the timeline on several occasions. At page 47 of the transcript of proceedings on October 18, 2016, Constable Sells had the following exchange with counsel:
Q: From the time you left the cruiser to the time that he comes out of the garage it’s at least 60 seconds?
A: Yes
At p. 56
Q: This conversation you had with the accused you guys talked about several things, decibels, noise complaints, loud music, ownership, paying rent, trespassing.
A: Mmhm.
Q: How long did all that go on for? Would you say three to five minutes?
A: No.
Q: It sounds like a lot of things got covered to me.
A: Oh, they did, yes. I would say probably a minute, a minute and a bit. Like, it wasn’t a very long interaction before he came out from behind the fence and the incident occurred.
At p. 84
Q: That means that from the time that you completed your query about the residence less than two minutes later a fight broke out or you were already in the middle of the fight?
A: From the time of the query, according to this, yes.
Q: The reason I bring this up to you is because we talked a lot about time throughout this examination. You said it could have been 15 seconds or more that you observed through garage door windows. Do you remember that?
A: No, I said it was 15 seconds from the time I exited my police cruiser is how long it took me to attend the garage door to make my observations.
Q: Then you said it took about 30 to 45 seconds after Groleau shined his flashlight before somebody stood up and began walking to the door. Do you remember that?
A: Yes.
Q: Then you said there was conversation which happened. You guys talked about several different things, decibels, noise complaints, style of music, who owned the property, paying rent, trespassing. You told him four different times that you don’t have a way to measure decibels. When I asked you how long did that conversation take you said approximately 60 seconds. Do you remember that?
A: Yeah, I do.
Q: Is it possible that conversation took a little bit longer, seven topics?
A: I don’t think so, no. I do not think so.
Q: Then you said about two to three minutes of fighting and resisting happened before Constable Groleau called in dispatch to say, “He’s fighting us.” Do you remember that?
A: Yes.
Q: I want to give you the opportunity to explain how is it the dispatch recording says a fight broke out within two minutes of clearing the query. Meanwhile, your evidence describes more like five or six minutes, at the very least. Do you have anything you want to say?
A: Just the fact that I wasn’t carrying my watch in front of me the entire time. So, from the time we arrived till I wasn’t actively looking at it, so these are my guesstimations, and when I made my notes none of the chronology, none of the 911 call, none of those tools that we’re playing here today were available to me. When I went back to the police station I used what was based on my independent recollection of the events and I’m trying to answer to the best of my ability.
Q: Yes, thank you.
A: So, I can’t .. I can’t .. I can’t say whether a minute or two passed, you know, between each single event. It’s just impossible for me to do. I don’t have that information.
Q: Yes, and that’s why I asked you approximately at each stage.
A: Yeah, Yeah, I’m trying to do my best in answering the question.
[25] The timeline was canvassed with Constable Groleau beginning at page 130 of the transcript of proceedings on October 18, 2016:
Q: But you also agreed that there was a period of time, after you were told you were trespassing, where you’re speaking to him trying to diffuse the situation?
A: I think at that point I know what was going through my mind was what is gonna happen next here because of his demeanour, because of his – what I observed, because of how he was engaging us. For all the questions that you had at the initial part of the time duration, when were into 30 seconds, 60 seconds, this portion here is lickety-split between “Fuck you” and hands up and now we’re engaged in this.
Q: What about the conversation itself? You guys talked about quite a few things, decibels, noise complaints, music, ownership of the property, paying rent, trespassing, owner is sleeping. How long did all of that conversation take place?
A: Perhaps a few minutes….
Q: So, your evidence is what should have taken a one to two-minute conversation was probably more like three to five minutes because he was not cooperating. Do I have that right?
A: It was longer than it should have been, yes, you have that right.
Q: Would it be fair to say it was about three to five minutes to talk about all those seven things?
A: I don’t think it was that long. No, I don’t think it was five minutes.
Q: Three minutes?
A: Probably on the better side of things, yeah….
At page 141:
Q: Maybe you can explain how two minutes after the query you guys are fighting, but according to your notes it’s five or six minutes that went by, between observing and the conversation and then a struggle. Do you have anything that you wanted to explain about that?
A: Well if you and I discuss window of opportunity and we say something like 30 seconds to a minute and you choose to use all those minimal times and I choose to use all those maximum times, yeah, we’re going to be off by at the most…
Q: No, but I’ve used your minimum times and added them up and I didn’t even agree. I don’t think seven topics could be discussed in two minutes. So, we did use, Mr. Groleau, your estimates. Can you explain why it still doesn’t add up?
A: Because they’re estimates.
Q: Because they’re estimates?
A: I would suggest so, yes.
[26] In the end, the officers acknowledged that their timelines were incorrect and attributed this to having made their best estimates without the aids before them during cross-examination.
[27] The trial judge, for clear and cogent reasons, accepted the evidence of the police officers and rejected the evidence of Mr. and Mrs. Corbeil. Her acceptance of the police testimony necessarily infers that she accepted their explanations for the difference between the timelines. It is not apparent to me that she misapprehended the evidence. The Appellants would prefer that the trial judge have inferred that the police were being less than truthful in their testimony rather than inferring, as she did, that they had mistakenly estimated the times when first providing their evidence. It is not for me to determine which inference ought to be drawn. The inference made by the trial judge was one that was reasonably available to her on the evidence.
[28] The second piece of evidence the Appellants say was misapprehended by the trial judge concerns the cell phone later found on the ground in the vicinity of the altercation. This evidence, they suggest, strongly confirms the testimony of Mr. Corbeil that he was trying to program his phone to record his confrontation with the police when he was attacked by them, and the phone dislodged from his hand. It is suggested that this also refutes the police testimony that he did not have a phone in his hand.
[29] The trial judge found as fact that Mr. Corbeil’s phone was located in the vicinity of the altercation the next day. The inescapable inference is that Mr. Corbeil was in possession of the phone prior to and up until some point in the altercation. However, the mere location of the phone does little, if anything, to corroborate Mr. Corbeil’s evidence. It could just as easily have been dislodged from his pocket during the altercation as have been knocked from his hand. Again, for clear and cogent reasons the trial judge accepted the evidence of the police officers and rejected the evidence of Mr. Corbeil. Her acceptance of the evidence of the officers was not inconsistent with the evidence that the cell phone was found the next day. There was no misapprehension of this evidence.
Conclusion
[30] I am not satisfied that the Appellants have established any of their grounds of appeal.
[31] Their appeal is dismissed.
R. D. GORDON, R. S. J.
Released: December 19, 2017
CITATION: HMTQ v. Corbeil, 2017 ONSC 7624
COURT FILE NO.: CR-167-17-AP
DATE: 20171219
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
GIRARD CORBEIL and MARY CORBEIL Appellants
REASONS on appeal
R. D. GORDON, R.S.J.
Released: December 19, 2017