R. v. Galloway (M.) et al., 2007 NSCA 103

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 30, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 103;(2007), 259 N.S.R.(2d) 99 (CA)

R. v. Galloway (M.) (2007), 259 N.S.R.(2d) 99 (CA);

    828 A.P.R. 99

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. OC.035

John Hope (appellant) v. Her Majesty The Queen (respondent)

(CAC 279514; 2007 NSCA 103)

Indexed As: R. v. Galloway (M.) et al.

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

October 30, 2007.

Summary:

The accused police officers (Hope and Galloway) were charged with assault and assault with a weapon. The trial judge acquitted them. The Crown appealed, submitting that the force applied was unlawful, as the police had no authority to enter the complainant's residence without a warrant to effect the arrest which led to the assault charges.

The Nova Scotia Supreme Court, in a judgment reported (2007), 252 N.S.R.(2d) 319; 804 A.P.R. 319, allowed the appeal in part. The court affirmed the acquittals for assault causing bodily harm (use of taser) and Galloway's acquittal for assault. The charge of assault on Hope was remitted for a new trial, as his warrantless entry into the complainant's residence to effect the arrest was not lawful at common law or under s. 529.3 of the Criminal Code. Hope appealed.

The Nova Scotia Court of Appeal allowed the appeal and restored the acquittal.

Criminal Law - Topic 1424

Assaults - Defence - Arrest - Silver answered a knock on her door by officer Hope - Hope advised that Silver was under arrest for uttering a death threat - Hope reached out and touched Silver's sleeve - The trial judge found the arrest lawful, but made no explicit finding as to whether the touch occurred outside or inside the residence - When Silver resisted, Hope entered the home, pushed her face first against the wall and handcuffed her - Hope was acquitted of assault - The trial judge found that Hope acted lawfully in entering Silver's home without a warrant in hot pursuit of a lawfully arrested person who was attempting to escape lawful custody - The summary conviction appeal court held that at common law, police could enter a private dwelling to effect an arrest only if there was consent to entry, they had a Feeney warrant or they were in hot pursuit - None of those circumstances were present, because the arrest was unlawful where Hope reached across the threshold of the home to touch Silver to effect the arrest - Accordingly, Hope's entry into Silver's residence to arrest her was unlawful and a charge against Hope for assault was remitted for a new trial - The Nova Scotia Court of Appeal allowed Hope's appeal and restored the acquittal - The Crown conceded that if Hope did not reach into Silver's home to touch her sleeve, the arrest was lawful and Hope was entitled to enter the home in "hot pursuit" of Silver, who was attempting to escape lawful custody - The trial judge found that Hope touched Silver's sleeve while Silver's hand was on the door jamb (i.e., not inside the house) - That was a fact finding and the Crown had not appealed from any fact findings - Accordingly, the appeal court was not entitled to make its own fact finding that the touch occurred inside the house or to find that the trial judge's fact finding was unreasonable - It was accordingly not open to the appeal court to overturn the acquittal absent error of law, which it did not find.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Criminal Law - Topic 1424 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Criminal Law - Topic 1424 ].

Trials - Topic 1182.2

Summary convictions - Appeals - Scope of appeal - [See Criminal Law - Topic 1424 ].

Cases Noticed:

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 16].

R. v. C.S.M. (2004), 223 N.S.R.(2d) 311; 705 A.P.R. 311; 2004 NSCA 60, refd to. [para. 19].

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 20].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 21].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 21].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323, refd to. [para. 21].

R. v. Fowler (M.O.) (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106; 2006 NBCA 90, refd to. [para. 21].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 23].

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152; 340 A.P.R. 152 (C.A.), refd to. [para. 23].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, dist. [para. 26].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 27].

R. v. Bushman (1968), 4 C.R.N.S. 13 (B.C.C.A.), refd to. [para. 27].

R. v. LeClaire (K.A.), 2005 NSCA 165, leave to appeal dismissed (2006), 356 N.R. 394 (S.C.C.), refd to. [para. 27].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321, refd to. [para. 30].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317, refd to. [para. 31].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 31].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 39].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para. 39].

Counsel:

Duncan Beveridge, Q.C., and Patrick Duncan, for the appellant;

Peter Rosinski, for the respondent.

This appeal was heard on September 24, 2007, at Halifax, N.S., before Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On October 30, 2007, Fichaud, J.A., delivered the following judgment for the Court of Appeal.