Saturday, February 4, 2017

Sentence reduced for Charter breach

R. v. Holland 2017 NUCJ 03:

(iii). Charter breach Analysis

[47] Society needs laws. Society also needs to be able to enforce those laws. We could not live in community without laws, and our police. Our free and democratic society also needs independent courts. Our courts settle disputes. Our courts protect our rights and our liberties. The decisions our judges make help to maintain public peace.

[48] Our police are our first line of defence against disorder and lawlessness. We expect our police to place their lives and safety on the line every day. We expect our police to deal with dangerous and difficult situations. We expect our police to make difficult judgment calls in fast­ moving and sometimes volatile situations. Everyone can and does make mistakes. Our police are human just like us; so, we do not expect them to be perfect.

[49] We entrust our police with extraordinary authority and power. As well as special protections. Our police are trained in the criminal law they are sworn to uphold. They are trained specifically on how to deal with difficult people and situations. In return, we expect our police to uphold the law, not to break it.

[50] Nunavummiut expect just consequences when someone breaks the law. Our police are not exempt from that expectation. These consequences must be meaningful lest the lesson be ignored, or forgotten.

[51] This case is troubling. The Crown acknowledges the police violated Holland's Charter rights. And let us be clear - the Charter protects each and every one of us; whether or not we are suspected of having broken the law. In asserting Mr. Holland's rights, this court defends the rights

and liberties of all its citizens. It has raised a serious issue for this court and for all Nunavummiut. When can a police officer legally enter your home and arrest you? Deprive you of your liberty? Put you in police cells?

[52] There is nothing more basic in our police officer's tool kit than the power to arrest a suspect. It is as basic as his or her uniform, badge, and side arm. The Crown did not call any evidence concerning police training. Despite that lack of information, I cannot accept that any Canadian police officer does not understand the limits on their power to arrest. It is the simplest and most basic concept our police must learn.
[53] Our laws of arrest are crystal clear.

[54] A person may be arrested by a police officer if they are caught committing an indictable offence. Or, a person may be arrested if the police officer has reasonable grounds to believe that the person committed an indictable offence.7 In either case, a lawful arrest has two parts. First, the police officer must tell the person he is under arrest. Second, the police officer must take hold of, or at least touch, the person during the arrest.

[55] Our law is also crystal clear that a police officer may not go into a person's home without an arrest warrant. These warrants are called Feeney warrants. Feeney was the suspect in the case that established this law.8 That arrest warrant must be issued by a judicial officer. The judicial officer is involved to make sure our police have lawful reasons to go into someone's home. In our democracy, that is a healthy and necessary check on the use of police authority.

[56] There are only two exceptions. First, if someone inside the house is in imminent danger of harm. The law calls that "exigent circumstances". 9 Here, police officers do not have to wait for a warrant. If they did, it might be too late for the person in trouble. In Mr. Holland's case, no one was in immediate danger. Exigent circumstances as an explanation for what the police did are not available here.

[57] The second exception happens when the policer officer has been chasing the person, and the person flees into their home. Generally,

7 Criminal Code, s 495
6 R v Feeney, [1997] 2 SCR 13, 115 CCC {3d) 129
9 Criminal Code, s 529.3

but not always, this happens when the suspect is fleeing the scene of the crime to avoid capture, and possibly, his identification. This is called "hot or fresh pursuit". Cpl. Dunphy and Cst. Kerstens claim they were in "hot pursuit" when they forced their way into Mr. Holland's home. However, this is not what happened.

[58] Cpl. Dunphy and Cst. Kerstens were not actively chasing Mr. Holland who then fled to, and into, his home. They had been patiently staking out Mr. Holland's home. For at least five, long, and doubtless tedious, hours. They knew he was inside. Mr. Holland made direct eye contact with Cst. Kerstens several times. They were hoping he would leave so they could arrest him. At least once, Mr. Holland had taunted them from his window. But they were powerless to act - at least until the Feeney warrant arrived. The court was never told why the Feeney warrant never came. There was no other suspect.

[59] Mr. Holland eventually stepped just outside, and let out his dog. He lit a cigarette. Cst. Kerstens decided to act. He called out from a distance that Mr. Holland was under arrest. Mr. Holland yelled "fuck you". Mr. Holland immediately turned, and went right back inside. Cst. Kerstens decided to chase after him although there was no way he could make up the distance. Mr. Holland was inside his home before est. Kerstens was even up the steps. The opportunity to arrest Mr. Holland lawfully was lost.

[60] Instead of stopping at the door, Cst. Kerstens decided to kick his way inside. Through not one, but two doors. According to his evidence, when Cst. Kerstens got inside, Mr. Holland was standing facing him. Mr. Holland was not moving. His arms were at his side. He was not doing or saying anything - just standing there, unarmed, with no weapons in sight. Officer safety concerns did not justify what happened. The constable did not try to deescalate the situation. The constable immediately grabbed Mr. Holland and put him against the wall. In a "C­ clamp". Then a headlock. Then he used a "pain compliance technique". In doing so, in these circumstances, Cst. Kerstens assaulted Mr. Holland. Assault is a crime.

[61] Why did this happen? The answer is found in Cpl. Dunphy's evidence. She was asked why she chased Mr. Holland, and why she didn't call for the warrant. She replied: "In the heat of the ... when all that was happening, no that wasn't ... that wasn't an option". Cpl. Dunphy had started to say "in the heat of the moment", but she caught herself.

[62] This incident happened because the police lost their cool and acted in the heat of the moment. Cs!. Kerstens reacted angrily when Mr. Holland yelled "fuck you" at him after the earlier taunt. Cst. Kerstens lost his cool. He ignored his training. He acted without legal authority. He is accountable, even if he believed he acted in good faith.

[63] When Cst. Kerstens ran after Holland, Cpl. Dunphy should have exercised her authority. She ought to have ordered the junior constable to stop. She failed in her duty to do so. Instead of restraining her colleague, she followed the junior constable inside. She helped Cst. Kerstens subdue Mr. Holland who was rightfully defending himself. By assisting Cs!. Kerstens subdue Mr. Holland unlawfully, Cpl. Dunphy also committed an assault. She, too, is accountable.

[64] As I said earlier, our law is crystal clear. Police may only enter a person's house without a warrant in two situations: if someone's safety is in peril, or if they are in hot pursuit. The only hot pursuit on January 17 was the pursuit by a constable who was hot under the collar, and by his supervisor who claims she did not understand the law.

[65] This illegal forced entry into Mr. Holland's home, and unprovoked assault, are extremely serious breaches of Mr. Holland's Charter rights. In our free and democratic society, these illegal acts undermine our trust in our police. It taints all our police officers. This court cannot turn a blind eye. These breaches must be sanctioned in a meaningful way. The question, then, becomes what is a fair and meaningful remedy?

[66] The Supreme Court of Canada has explained the law I must apply. In 2010, all nine justices issued a unanimous judgment. That case is R v Nasoga/uak 10. A judge may use sentencing principles to denounce police misconduct. Where, as here, that misconduct related directly to Mr. Holland as their suspect, it works to lessen his sentence. It becomes a mitigating factor I must consider and apply in a meaningful way. The sentence reduction must reflect this serious violation of the law by Cpl. Dunphy and Cst. Kerstens.

[67] The court, therefore, reduces Mr. Holland's sentence further by five months, or 150 days

1 comment:

Anonymous said...

After the many Charter violations committed by police during the G20 summit I did an extensive search of Ontario police websites. Why didn't the police comply with the law?

Very few made any reference to the Charter. Only one, if I recall correctly, had a statement by the Chief of Police which correctly noted the relationship of the Charter of Rights and Freedoms to the mission and operations of the police.

This is a serious omission.