R. v. Stonechild, (1981) 10 Man.R.(2d) 43 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: June 30, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 10 Man.R.(2d) 43 (CoCt)

R. v. Stonechild (1981), 10 Man.R.(2d) 43 (CoCt)

MLB headnote and full text

R. v. Stonechild

Indexed As: R. v. Stonechild

Manitoba County Court

Judges Criminal Court of the Eastern Judicial District

Ferg, C.C.J.

June 30, 1981.

Summary:

The accused was charged with possessing a weapon, a baseball bat, for a purpose dangerous to the public peace. On a suspicion that the accused had broke and entered a neighbouring apartment four policemen broke into the accused's apartment at night, while he was sleeping, without announcing or identifying themselves or their purpose. The accused picked up a baseball bat to defend himself and his children until he realized that the intruders were policemen. The accused was charged with possessing the bat for a purpose dangerous to the public peace.

The Manitoba County Court acquitted the accused and held that the police were trespassers against whom the accused was entitled to defend himself.

Criminal Law - Topic 1153

Offences against public order - Offensive weapons - What constitutes weapon possessed for purpose dangerous to public peace - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 85 - The Manitoba County Court held that the use of a baseball bat by the occupant of an apartment to protect himself against night-time trespassing policemen did not constitute possession of a weapon for a purpose dangerous to the public peace - See paragraphs 25 to 26.

Police - Topic 3063

Powers - Arrest - Reasonable and probable grounds - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 450(1)(a) - Police officers entered the accused's apartment through a window at night to arrest the accused on a suspicion that he broke and entered his girlfriend's neighbouring apartment - The police were told by the girlfriend that the accused tried to get in, but only to be with her and there was no evidence that he actually entered - The Manitoba County Court held that the police had no reasonable and probable grounds to believe the accused committed the offence and were not entitled to arrest him without warrant - See paragraphs 13 to 15.

Police - Topic 3144

Powers - Forceable entry - Conditions precedent - The Manitoba County Court held that the failure of police officers to announce themselves as police to the occupant of an apartment or to demonstrate their authority by stating a lawful reason for demanding entry rendered the policemen trespassers upon entry of the premises - See paragraphs 16 to 25.

Cases Noticed:

R. v. Macleod (1979), 23 Nfld. & P.E.I.R. 479; 61 A.P.R. 479, appld. [para. 13].

Eccles v. Bourque, [1975] 2 S.C.R. 739; 3 N.R. 259, appld. [para. 18].

R. v. Colet (1981), 35 N.R. 227, appld. [para. 22].

R. v. Nelson, 8 C.C.C.(2d) 29 (Ont. C.A.), appld. [para. 26].

R. v. Chamenlso (1974), 18 C.C.C.(2d) 353 (Ont. C.A.), appld. [para. 26].

R. v. Halvorsen (1979), 46 C.C.C.(2d) 543 (B.C.C.A.), appld. [para. 26].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 85 [para. 1]; sect. 29(1), sect. 29(2) [para. 12]; sect. 40, sect. 41(1) [para. 11]; sect. 450 [para. 10].

Counsel:

S. Leinburd, for the Crown;

Fagie Fainman, for the accused.

This case was heard at Winnipeg, Manitoba, before FERG, C.C.J., of the Manitoba County Court, who delivered the following judgment on June 30, 1981: