R. v. Phillips (J.J.A.), 2006 NSCA 135

• Judge: MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Wednesday December 06, 2006
• Jurisdiction: Nova Scotia
• Citations: 2006 NSCA 135;(2006), 255 N.S.R.(2d) 6 (CA)

R. v. Phillips (J.J.A.) (2006), 255 N.S.R.(2d) 6 (CA);

    814 A.P.R. 6

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MY.040

John James Arthur Phillips (appellant) v. Her Majesty the Queen (respondent)

(CAC 266449; 2006 NSCA 135)

Indexed As: R. v. Phillips (J.J.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.

December 14, 2006.

Summary:

A 911 dispatch informed two police officers that the accused was reported missing by a hospital, that he was suicidal and should be returned to the hospital. The officers attempted to apprehend the accused at his home without warrant under s. 38(1) of the Hospitals Act. The accused resisted and assaulted the officers. He was convicted of assaulting the officers in the execution of their duties contrary to s. 270(1)(a) of the Criminal Code. The trial judge rejected an argument that the events at the accused's home violated his rights under ss. 7 and 9 of the Charter. The accused appealed, arguing that the officers had no authority to apprehend him and he was entitled to resist. He also sought to add a new issue, not argued at trial, i.e., that the authority to apprehend in s. 38(1) of the Hospitals Act violated the Charter. Finally, he challenged the trial judge's application of reasonable doubt under the W.(D.) principles.

The Nova Scotia Court of Appeal dismissed the appeal on all grounds.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1283

Security of the person - Unlawful arrest - Right to resist arrest - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1285

Security of the person - Unlawful arrest - On private property - [See Civil Rights - Topic 3603].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A 911 dispatch informed two police officers that the accused was reported missing by a hospital, that he was suicidal and should be returned to the hospital - The officers attempted to apprehend the accused at his home without warrant under s. 38(1) of the Hospitals Act - The accused resisted and assaulted one of the officers at the door - The officers followed the accused into the house and following a further altercation, he was arrested - He was convicted of assaulting the officers in the execution of their duties (Criminal Code, s. 270(1)(a)) - The accused appealed, arguing that the officers had no authority to apprehend him and he was entitled to resist - The Nova Scotia Court of Appeal dismissed the appeal - The officers had statutory authority under s. 38(1) to apprehend the accused and their attempt to do so at the doorstep of his home was not arbitrary, did not violate ss. 7 or 9 of the Charter and was in the execution of their duties - Further, after the assault at the doorway, the police officers had legal authority under s. 529.3 of the Criminal Code and at common law to pursue the accused into his home and arrest him without a warrant - There was no arbitrary apprehension or arrest - See paragraphs 11 to 26.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - A 911 dispatch informed two police officers that the accused was reported missing by a hospital, that he was suicidal and should be returned to the hospital - The officers attempted to apprehend the accused at his home without warrant under s. 38(1) of the Hospitals Act - The accused resisted and assaulted the officers - He was convicted of assaulting the officers in the execution of their duties contrary to s. 270(1)(a) of the Criminal Code - The trial judge rejected an argument that the events at the accused's home violated his rights under ss. 7 and 9 of the Charter - The accused appealed, seeking to argue a matter not argued at trial, i.e., that the authority to apprehend in s. 38(1) of the Hospitals Act violated the Charter - The Nova Scotia Court of Appeal refused to consider this new issue - See paragraphs 30 to 34.

Criminal Law - Topic 1414

Assaults - Assault of a peace officer - [See Civil Rights - Topic 3603].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Civil Rights - Topic 3603].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 9].

R. v. W.(D.) - see R. v. D.W.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 12].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 21].

R. v. Nicholls (F.) (1999), 125 O.A.C. 77; 139 C.C.C.(3d) 253 (C.A.), refd to. [para. 21].

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. 23].

R. v. Hickey (P.) (2004), 182 O.A.C. 57 (C.A.), refd to. [para. 27].

V.S. v. Nova Scotia (Minister of Health) (2006), 249 N.S.R.(2d) 185; 792 A.P.R. 185; 2006 NSCA 122, refd to. [para. 32].

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

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 270(1)(a) [para. 1]; sect. 529.3(1), sect. 529.3(2) [para. 23].

Counsel:

David Grant, for the appellant;

Dana Giovannetti, Q.C., for the respondent.

This appeal was heard in Halifax, Nova Scotia, on December 6, 2006, by MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the court was delivered on December 14, 2006, by Fichaud, J.A.