R. v. Alexson (T.L.), 2015 MBCA 5

• Judge: Chartier, C.J.M., MacInnes and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: Friday October 24, 2014
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 5;(2015), 315 Man.R.(2d) 70 (CA)

R. v. Alexson (T.L.) (2015), 315 Man.R.(2d) 70 (CA);

      630 W.A.C. 70

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.004

Her Majesty The Queen (appellant/appellant) v. Terence Lee Alexson (accused/respondent/respondent)

(AR 13-30-08020; 2015 MBCA 5)

Indexed As: R. v. Alexson (T.L.)

Manitoba Court of Appeal

Chartier, C.J.M., MacInnes and Cameron, JJ.A.

January 21, 2015.

Summary:

The Crown appealed from the accused's acquittal in Provincial Court on a charge of assaulting a peace officer contrary to s. 270(1)(a) of the Criminal Code.

The Manitoba Court of Queen's Bench, in a decision reported at 296 Man.R.(2d) 1, dismissed the appeal. The Crown sought leave to appeal.

The Manitoba Court of Appeal, in a decision reported at [2014] Man.R.(2d) Uned. 4, granted leave to appeal on the following two questions of law: 1. did the summary court appeal (SCA) judge err in law in holding that the officers were not lawfully acting in the exercise of their duty when they attempted to remove the accused from the home; and 2. did the SCA judge err in law in holding that the officers lacked reasonable grounds to believe an offence or breach of the peace was likely if they did not intervene?

The Manitoba Court of Appeal allowed the appeal. The court held that: (1) the officers were lawfully acting in the exercise of their duty when they attempted to remove the accused from the home; and (2) the arresting officer had reasonable grounds to arrest the accused for an assault about to be committed. The court overturned the acquittal, substituted a conviction and remitted the matter to the trial judge with the direction that he impose a sentence that was warranted in law.

Criminal Law - Topic 1414

Offences against person and reputation - Assaults - Assault of a peace officer - Someone made a hang-up call from a residence at approximately 4 a.m. - A return call by the 911 operator was not answered - Two police officers were dispatched to the address - The male accused, a woman and child were present - The woman asked the police to remove the accused - The accused was verbally abusive and belligerent towards the officers - The accused stood up, as if to go after the woman, saying "fuck you" to her and the officers - The accused assumed a "fighting stance", clenching his fists - The police arrested the accused under the Intoxicated Persons Detention Act (IPDA) - The accused continued swearing, clenched his fists again and stepped forward - An officer spun him around, placed him on the ground, and handcuffed him - The accused continued swearing and making obnoxious comments - While the officers were trying to put him into the back of the police car, the accused broke free and kicked an officer in the face - At trial, the Crown conceded that the IPDA did not apply, as the incident occurred inside a residence - However, the Crown argued that the officers were acting in the scope of their authority by removing the accused from the home in order to prevent a possible offence - The trial judge found that the accused's kick to the officer was not an accident, but he acquitted the accused of assaulting a peace officer because the Crown failed to establish that the officers were acting lawfully in the execution of their duty at the time of the assault - The Crown appealed - The summary conviction appeal judge dismissed the appeal - The nub of the trial judge's decision was that the officers' actions in arresting the accused were premature - He said: "I don't have evidence before me that would lead me to the conclusion that there was about to be an indictable offence occur ..." - The Crown appealed - The Manitoba Court of Appeal allowed the appeal - The court held that: (1) the officers were lawfully acting in the exercise of their duty when they attempted to remove the accused from the home where, inter alia, the arrest and detention were reasonably necessary for the carrying out of the duty to preserve the peace and prevent crime, it was a preventative and restrained measure taken to protect other members of the household, and the nature and extent of the interference with the respondent's liberty was limited to the time it took for him to sober up; and (2) the arresting officer had reasonable grounds to arrest the accused for an assault about to be committed.

Police - Topic 3061.1

Powers - Arrest and detention - Intoxicated persons - [See Criminal Law - Topic 1414].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 1414].

Police - Topic 3070.1

Powers - Arrest and detention - Arrest without warrant - Of person about to commit an indictable offence - [See Criminal Law - Topic 1414].

Police - Topic 3077

Powers - Arrest and detention - For apprehended breach of the peace - [See Criminal Law - Topic 1414].

Cases Noticed:

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 7].

R. v. Langlois (D.J.) (2008), 228 Man.R.(2d) 256; 427 W.A.C. 256; 2008 MBCA 72, refd to. [para. 9].

R. v. Emery (1981), 61 C.C.C.(2d) 84 (B.C.C.A.), leave to appeal refused [1982] 2 S.C.R. vii; 40 N.R. 358, refd to. [para. 9].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 10].

R. v. Waterfield, [1963] 3 All E.R. 659 (Ct. Crim. App.), appld. [para. 15].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, appld. [para. 15].

R. v. MacDonald (E.), [2014] 1 S.C.R. 37; 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 16].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, appld. [para. 17].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 571, refd to. [para. 20].

R. v. Sanderson (D.W.) (2003), 170 O.A.C. 285; 174 C.C.C.(3d) 289 (C.A.), refd to. [para. 21].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 24].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 21 C.R.(5th) 1 (C.A.), consd. [para. 25].

R. v. Jacob (J.A.) (2013), 291 Man.R.(2d) 135; 570 W.A.C. 135; 2013 MBCA 29, refd to. [para. 26].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259; 19 C.C.C.(2d) 129, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

Hayes v. Thompson et al. (1985), 18 C.C.C.(3d) 254 (B.C.C.A.), refd to. [para. 29].

Counsel:

A.Y. Kotler, for the appellant;

No appearance for the respondent.

This appeal was heard on October 24, 2014, by Chartier, C.J.M., MacInnes and Cameron, JJ.A., of the Manitoba Court of Appeal. Chartier, C.J.M., delivered the following decision for the Court of Appeal on January 21, 2015.