Territorial Court

R. v. Cadieux, 2003 NWTTC A3
Date: 20030226
Docket: T-1-CR-2002001851

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


DONALD CADIEUX


Transcript of the Reasons for Judgment (Oral) delivered by The Honourable C/Judge R.W. Halifax, in Yellowknife, in the Northwest Territories, on the 25th day of February, A.D. 2003.


APPEARANCES:

Mr. S. Niblock:   Counsel for the Crown

Mr. P. Fuglsang:  Counsel for the Defence


Charge under s. 270 (1) C.C.


THE COURT:   This matter was adjourned with regard to Count 2 on the Information alleging an offence under section 270 of the Criminal Code, alleging on the 1st day of August, 2002, that the accused assaulted Erick Youngstrom, a peace officer of the Royal Canadian Mounted Police engaged in the execution of his duty, contrary to section 270 of the Criminal Code.

At the end of the trial there was argument with regard to the circumstances whether the police were entitled to arrest the accused in the manner they did and enter his residence to do so. The matter was adjourned for written argument to be filed by the 14th of February and it was adjourned to today's date.

I have had an opportunity to review the written argument filed by the Crown and defence.

I do not think there is really any issue with regard to the circumstances here as to what occurred. The police attended to a complaint regarding an alleged spousal assault on the 1st day of August to a residence on 54th Street, where they spoke to one Doris Ekotla, who was at a neighbour's residence, during which time another police officer observed the accused in the window of his residence. After the first officer spoke with Miss Ekotla, the two officers attended at the door of the accused and knocked on the door several times. The accused finally came to the

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door. He advised the police that Doris was on her way back. The accused was advised that they wished to speak to him regarding the complaint, and the accused said something about “Deal with it tomorrow” and started to close the door, at which point the police pushed their way in, the accused backing up, telling the police to get out of his house. The police continued, grabbed the accused. There was a scuffle. He was pepper-sprayed. The alleged victim of the assault got involved. There was another lady there who got involved, who the police had observed sitting on the couch in the living room through the window before they went into the house.

The argument basically being here that the police had no right to enter the residence in the face of Fenney to effect the arrest of the accused.

The Crown's position is that there's exigent circumstances here.

I have reviewed the evidence carefully. Basically you start with the proposition that in these circumstances the police were not entitled to enter the residence without a warrant. I don't think that is an issue at this stage in these circumstances, unless they can show there was exigent circumstances.

The Crown has admitted, I think quite properly, based on the evidence that there was no indication of death or bodily harm or there was no evidence that had

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to be preserved, so to speak, under the provisions provided for under section 529.3(2).

There can be other exigent circumstances, and the issue really comes down to in my view whether or not such existed here.

Regarding the exigent circumstances, the Crown's position is that the RCMP were responding to a spousal assault complaint, that the complaint was received at 2:30 in the morning. The victim was found next door bleeding from a wound above her eye. The accused was in the home where the victim had left. They were advised that there was another unidentified female person in the home who the police could see through the window sitting on the couch. That the accused told the police that the victim was on her way back, and that the accused told the RCMP they should deal with it in the morning. The accused was told he was under arrest for assault, and then he tried to close the door and that amounted to exigent circumstances.

In my view, the fact of the matter is that the alleged victim was not in the residence any longer; there was no need to protect the victim, to enter the residence to protect her and to arrest the accused. Secondly, the view through the window indicated that the other person, the unidentified woman inside who eventually turned out to be Miss Betsaka, was in no danger whatsoever. There was no necessity to enter

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the residence to protect her.

I cannot find, in my view, that there are exigent circumstances here. There may be speculation, but that is not good enough. The Supreme Court of Canada in Feeney basically said you cannot go into a residence to effect an arrest without these kinds of circumstances and I am not satisfied they are here.

There is this issue with regard to the fact of the telewarrant and that the police could not reasonably obtain a telewarrant so therefore they should be entitled to go in, which is an interesting argument.

Just as a response, Mr. Niblock. I pulled my files out and the continuing correspondence I have had for 13 years with your office with no response as to a process for telewarrants in this jurisdiction. It started with Mr. Gates. I can tell you that the last letter I received from Mr. Gates - and I have it with me today - is dated the 24th of October, 1989, where he apologizes for not getting back to me and not getting this job done of getting this process put in place for getting telewarrants. In the meantime, as Chief Judge I had already acquired the necessary equipment so we could record the applications for telewarrants.

This was then passed on to Mr. Don Avison, who was the next Director in the Crown's office in

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Yellowknife. After four meetings with Mr. Avison and providing a draft proposal, I was advised that the Crown wished to have further discussions with the RCMP in this regard. For the next two years, I faithfully wrote every four months asking for a response and heard nothing.

So I don't look at the fact that there's not a provisions for telewarrants in this jurisdiction is anybody else's fault but the Crown's and the police. The Court tried to set it up, with no cooperation from parties who you would think would cooperate. It was in their interest. So after three years I chose not to pursue it any further since the Crown and the police showed no interest. So there's your answer to that ground of appeal. You make your bed, sometimes you lie in it.

I can tell you there's been further correspondence back with regard to this whole area under section 529.1 with Superintendent Elliot as late as the 26th of April, 2000, and what would be required.

Now, of course if the Crown's office may wish to reinstitute further consultations with regard to setting up a telewarrant process, my door has always been open. They just haven't chosen to do so at this stage.

My view at this stage, as I say, in answering

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that question, I don't think it should be passed up. I don't think that exigent circumstances have been shown in this case. There was no need to secure any evidence; there was no need to protect anybody here. In my view the police did not have the right to go into the residence after the accused without a warrant in these circumstances. They therefore were unlawfully in the dwelling house. They were not in there lawfully under a warrant. They were no longer in execution of their duty. In my view, therefore, the accused being arrested unlawfully is entitled to resist that arrest and protect himself, and I don't think he did any more than that in the circumstances.

The police just can't start kicking doors in and have four of them going in and ganging up on somebody.

We like to think at least that we have certain protections and rights of privacy in this country still, in spite of the fact that the Supreme Court of Canada spoke clearly on this matter.

Now I have, as well, the Godoy decision. In my view it doesn't really apply here. That's a matter with regard to a search which is something a little different than an arrest.

So I therefore find the accused not guilty on the 270 charge.

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Certified pursuant to Practice Direction #20 dated December 18, 1987.

Annette Wright, RPR, CSR(A)
Court Reporter

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