R. v. Stenning, [1970] SCR 631

Supreme Court of Canada

R. v. Stenning, [1970] S.C.R. 631

Date: 1970-03-20

Her Majesty The Queen (Plaintiff) Appellant;

and

Michael Anthony Stenning (Defendant) Respondent.

1970: February 3, 4; 1970: March 20.

Present: Cartwright C.J. and Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Peace officer assaulted—Officer investigating earlier occurrence—Execution of his duty—Trespasser—Criminal Code, 1953-54 (Can.), c. 51, s. 232(2).

The respondent was charged with assaulting a police officer contrary to s. 232(2) of the Criminal Code. Two constables arrived at the premises of an automobile dealer to investigate a disturbance. They found a man outside the building who appeared to have been badly beaten. This man was employed by the dealer and resided with his family in an apartment at the rear of the building. The officers found

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out that a firearm had been discharged. One of the constables noticed someone moving inside the office part of the building. He and another constable who had been dispatched to aid him, called through an open window and identified themselves as police officers, but received no response. They finally entered and saw the respondent and another man, both pretending to be asleep. The respondent was sitting in front of a desk with his head down on the desk. One of the constables, who was in uniform, told the respondent that he would be arrested if he did not disclose his identity. The respondent suddenly arose from his chair and struck the constable in the face, breaking his nose and injuring his eye. It was subsequently determined that the respondent was the son of the owner of the building and that the shots had been fired by the injured man. The trial judge acquitted the respondent on the ground that the police officers were not in the course of their duty at the time they broke into the building. The acquittal was affirmed by the Court of Appeal. The Crown was granted leave to appeal to this Court.

Held: The appeal should be allowed and a verdict of guilty substituted.

The constable was on the premises to investigate an occurrence which had happened earlier in the evening, which involved the firing of a rifle. He was on duty. Whether on the facts of this case the constable was, technically, a trespasser or not, he was engaged in the execution of his duties at the time when he was assaulted by the respondent, and at that time there had been no unlawful interference with either the liberty or the property of the respondent.

APPEAL by the Crown from a judgment of the Court of Appeal for Ontario, affirming the appellant’s acquittal. Appeal allowed.

M. Manning, for the appellant.

John O’Driscoll, Q.C., for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—The respondent was charged with assaulting a police officer contrary to

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s. 232(2) of the Criminal Code. He was acquitted at trial. The Crown’s appeal was dismissed, without recorded reasons, by the Court of Appeal for Ontario. The appellant appeals, with leave of this Court.

The charge arose out of an incident that occurred at Quality Motors, an automobile dealership in London, Ontario, on the evening of October 11, 1968. Constables Parker and Krux arrived at this location at approximately 9:10 p.m. to investigate a disturbance. They found a man outside the building who appeared to have been badly beaten and was bleeding about the face. It was also evident that he had been drinking. There was a strong smell of intoxicant on his breath.

This man was Robert Monk, who was employed by Quality Motors and resided with his wife and a child in an apartment at the rear of the building. Although his wife was not at home when the officers first arrived, she did come home later. Monk did not give the officers any explanation for his condition. The officers did, however, find out at this time from someone that a firearm had been discharged. Monk was taken back to his apartment, where he was placed under the supervision of Constable Krux.

At this time Constable Parker noticed someone moving inside the office part of Quality Motors. This person immediately moved back into the rear of the office and out of sight. The constable also saw that there was a light on inside the building and that a side window was open about two inches. He knocked on the door, which was locked, and called through the open window, but he received no answer from whoever was inside.

He became apprehensive that someone had broken into the building. Because of his knowledge that there had been a shooting earlier, he decided to seek assistance before making any further investigation. As a result, Constable Wilkinson was dispatched to the scene and arrived shortly thereafter. Constable Parker waited for him in the rear apartment with Constable Krux and Monk

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Constables Wilkinson and Parker then attempted to gain entrance into the building. They tried the rear door leading from Monk’s apartment, but it was locked. They called through the open window and identified themselves as police officers, but received no response. By this time Mrs. Monk had returned and she brought them a chair from her apartment which Constable Wilkinson used to go through the window. He then let Constable Parker in through the front door.

There was no evidence that either Mr. or Mrs. Monk knew who was inside the building. If either of them did know, the information was not disclosed to the police officers.

Once inside, the two officers searched the first room and found traces of fresh blood on the floor. They went into the second room and saw the respondent and another man, Askew. Both were pretending to be asleep. The respondent was sitting in front of a desk with his head down on the desk.

According to the respondent’s evidence, he and Askew had been drinking very heavily at the office over a period of some two hours, or less. During that time the respondent’s father had returned to the office. He and the respondent got into an argument and “there were a couple of light punches thrown and he left.”

Constable Wilkinson shook the respondent and asked him three or four times what business he had in the office. The respondent refused to answer. His only reply was: “It is none of your business.” The trial judge found that at this time the respondent attempted to use the telephone, but was prevented from doing so by Constable Wilkinson. The respondent denied that he ever tried to telephone anyone.

Constable Wilkinson then told the respondent that he would be arrested if he did not disclose his identity. The respondent suddenly arose from his chair and struck Constable Wilkinson in the face, breaking his nose and injuring his eye. To stop this attack Constable Wilkinson hit the respondent with his night stick and Constable Parker hit him in the face with his fist.

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Subsequently, it was determined that the respondent was the son of the owner of the building. It was also ascertained that in the disturbance earlier that evening it was only Monk who had fired any shots.

The trial judge acquitted the respondent because, he said, the police officers were not in the course of their duty at the time they broke into the building. This statement is based upon the following finding:

…I am satisfied that at that point in time, they were, in law, trespassers upon the premises and that, in law, neither Askew or Stenning were obliged to co-operate with them.

But he also made the following finding of fact:

I am satisfied that Wilkinson was on the premises for the purpose of investigating some occurrence which had happened earlier in the evening. That he was in uniform, that he had reason to believe that the two persons that were inside the premises—that is Stenning and Askew—were in some manner involved in connection with the disturbance which he had been called there to attend or investigate. I am also satisfied that both Wilkinson and Parker had attempted to get inside the building or to attract the attention of the person or persons they thought were inside the building by calling to them, and I am satisfied that when Parker and Wilkinson got inside the building that they went into the inner office and found Stenning and Askew where they said they were located. This evidence would appear to be uncontroverted.

The offence with which the respondent was charged is defined in s. 232(2)(a) of the Criminal Code, as follows:

(2) Every one who

(a) assaults a public officer or peace officer engaged in the execution of his duty, or a person acting in aid of such an officer;

…

is guilty of an indictable office and is liable to imprisonment for two years.

Wilkinson was a peace officer, in uniform, and he was assaulted by the respondent. The only

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issue, in law, is as to whether Wilkinson, in view of the finding as to the reason why he was on the premises, could be held not to have been engaged in the execution of his duty at the time he was assaulted by the respondent. In reaching his conclusion that Wilkinson was not engaged in that duty, the trial judge appears to base it on the ground that Wilkinson was a trespasser when he entered the building. Argument was submitted to us as to whether, on the facts, he was or was not a trespasser. But even if he was a trespasser, he was not trespassing on the respondent’s premises. The respondent may have been entitled to be on those premises, but there is no evidence that, prior to his assault on Wilkinson, he advised Wilkinson as to this, that he questioned Wilkinson’s right to be there, or that he asked him to leave. There had been no interference by Wilkinson with the person or the property of the respondent prior to the assault.

Assuming that Wilkinson did, technically, trespass on the premises, the fact remains that he was there to investigate an occurrence which had happened earlier in the evening, which involved the firing of a rifle. He had been sent out for that purpose. He was charged, under s. 47 of The Police Act, R.S.O. 1960, c. 298, with the duty of preserving the peace, preventing robberies and other crimes, and apprehending offenders. He was in the course of making an investigation, in the carrying out of that duty, when he was assaulted by the respondent.

We were referred to a number of English authorities and some Canadian cases, all of which turned upon facts which differed from the facts found in this case. Their effect is stated in the judgment of the Court of Criminal Appeal in R. v. Waterfield[1]:

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed.

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In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

On the facts of this case, as found by the trial judge, whether Wilkinson was, technically, a trespasser, or not, he was engaged in the execution of his duties at the time when he was assaulted by the respondent, and at that time there had been no unlawful interference with either the liberty or the property of the respondent.

I would allow the appeal, set aside the verdict of acquittal, and substitute therefor a verdict of guilty in respect of the offence charged. In view of the fact that the Crown did not press for any sentence of imprisonment, I would impose a fine of one hundred dollars. In default of payment of such fine I would sentence the respondent to imprisonment for a term of seven days.

Appeal allowed.

Solicitor for the appellant: W.C. Bowman, Toronto.

Solicitors for the respondent: O’Driscoll, Kelly & McRae, Toronto.