R. v. Havelock (K.F.), (2004) 186 Man.R.(2d) 197 (PC)

• Judge: Swail, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 04, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 186 Man.R.(2d) 197 (PC)

R. v. Havelock (K.F.) (2004), 186 Man.R.(2d) 197 (PC)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AU.019

Her Majesty The Queen v. Kenneth Francis Havelock (accused)

Indexed As: R. v. Havelock (K.F.)

Manitoba Provincial Court

Swail, P.C.J.

February 4, 2004.

Summary:

The accused was charged with two counts of assaulting a police officer and one count of mischief. The Crown conceded that there was insufficient evidence respecting the mischief charge.

The Manitoba Provincial Court convicted the accused of one count of assaulting a police officer.

Criminal Law - Topic 1414

Offences against person and reputation - Assaults - Assault of a peace officer - Two police officers responded to a 911 "hang-up call" - They were told that, on "ring back", a female had stated it was a joke but lied about her name and then a male voice came to the phone and told the operator off - At the address, the police entered the hallway of the apartment building and could heard a male yelling and swearing and could hear a female voice - The police did not hear any threats or sounds of an altercation - An officer (Kohut) knocked on the door - The accused answered and stood in the middle of the doorway - He yelled at police, asking what they wanted - Kohut explained that he was responding to a 911 call and needed to come in to make sure everything was okay - The accused yelled "no, you're not coming in" - Kohut took one step forward to go by the accused in order to enter the apartment - The accused lunged forward and pushed the officer across the hallway and against the wall - They struggled, fell to the floor and then the accused was subdued - The Manitoba Provincial Court convicted the accused of assaulting Kohut - Kohut did not cease to be in the execution of his duties as a police officer when he attempted to step around the accused and enter the apartment, after he was told he could not come in - The court rejected the accused's argument that the police should have asked the accused if they could speak to the female 911 caller or should have called out to her to come to the door - See paragraphs 79 to 94.

Criminal Law - Topic 1414

Offences against person and reputation - Assaults - Assault a of peace officer - Two police officers responded to 911 "hang-up call" - The accused answered the door but would not let them in - An officer (Kohut) took one step forward to go by the accused in order to enter the apartment - The accused lunged forward and pushed the officer across the hallway and against the wall - They struggled, fell to the floor and then the accused was subdued - The other officer (Lechow) attempted to hold the accused's legs, which were flailing about, as he was struggling with Kohut - One of the legs grazed Lechow's chin - The Manitoba Provincial Court acquitted the accused of assaulting Lechow - It was not clear that the accused's flailing of his legs was an attempt to assault Lechow - It could have been something akin to a reflective action resulting from his struggle with Kohut - See paragraph 95.

Police - Topic 2209

Duties - General duties - Duty to take preventive actions and investigate - [See first Criminal Law - Topic 1414 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See first Criminal Law - Topic 1414 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 69].

R. v. Y.J.B. (1996), 113 Man.R.(2d) 249; 131 W.A.C. 249 (C.A.), refd to. [para. 69].

R. v. Godoy (V.) (1997), 100 O.A.C. 104 (C.A.); affd. [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 80].

R. v. Waterfield, [1963] 3 All E.R. 659; [1964] 1 Q.B. 164 (C.C.A.), refd to. [para. 81].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 94].

Counsel:

Christine Le Quéré, for the Crown;

Martin Pollock and Derek Olson, for the accused.

This matter was heard before Swail, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on February 4, 2004.