R. v. Galloway (M.) et al., (2007) 252 N.S.R.(2d) 319 (SC)

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Pickup, J.
• Citation: (2007), 252 N.S.R.(2d) 319 (SC),2007 NSSC 71
• Date: 21 February 2007

R. v. Galloway (M.) (2007), 252 N.S.R.(2d) 319 (SC);

    804 A.P.R. 319

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. MR.021

Her Majesty The Queen (appellant) v. Mark Galloway and John Hope (respondents)

(SH 265131A; 2007 NSSC 71)

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

Nova Scotia Supreme Court

Pickup, J.

March 7, 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 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.

Criminal Law - Topic 1424

Assaults - Defence - Arrest - Silver was arrested by officer Hope without a warrant in her own home for uttering a death threat against another person - When Silver resisted, Hope entered the home, pushed her face first against the wall and handcuffed her - Officer Galloway, having not witnessed the initial entry, assisted Hope in the belief that Silver was assaulting him - When Silver was later placed in a cell and resisted female officers who were removing Silver's handcuffs, she was tasered three times - Hope and Galloway were acquitted of assault and assault with a weapon - The trial judge made no express finding as to whether Hope acted lawfully in entering Silver's home without a warrant to effect an arrest - The Nova Scotia Supreme 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 - Section 529.3 of the Criminal Code permitted entry without warrant to effect an arrest in exigent circumstances, including where entry was reasonably necessary to prevent imminent bodily harm or death to any person - No exigent circumstances were present - Accordingly, Hope's entry into Silver's residence to arrest her was unlawful and that charge was remitted for a new trial - Galloway's acquittal for assault was affirmed - Galloway, untainted by the unlawful entry, reasonably believed Hope was being assaulted and came to his assistance, using no more force than was reasonable - Likewise, the acquittals for assault causing bodily harm were affirmed, as both Hope and Galloway were coming to the assistance of other officers who were attempting to remove Silver's handcuffs - The force used (tasered three times) was reasonable (Criminal Code, s. 25).

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 ].

Police - Topic 3078.1

Powers - Arrest and detention - Tasers - Use of - [See Criminal Law - Topic 1424 ].

Cases Noticed:

R. v. Nickerson (W.S.) (1999), 178 N.S.R.(2d) 189; 549 A.P.R. 189 (C.A.), refd to. [para. 3].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 5].

R. v. Johnson (W.D.) (2004), 225 N.S.R.(2d) 22; 713 A.P.R. 22 (C.A.), refd to. [para. 7].

R. v. Feeney (M.) (1997), 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 31].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104, refd to. [para. 54].

R. v. Hannibal, 2003 BCPC 504, refd to. [para. 74].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 81].

R. v. Gladue (C.A.) (2002), 316 A.R. 316; 2002 ABQB 519, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 25(1)(b) [para. 19]; sect. 529.3 [para. 33].

Counsel:

Darrell I. Carmichael, for the appellant;

Patrick J. Duncan, Q.C., for the respondent, John Hope;

David J. Bright, Q.C., for the respondent, Mark Galloway.

This appeal was heard on February 21, 2007, at Halifax, N.S., before Pickup, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 7, 2007.