I Cite as: R. v. Hiltz, 1990 NSCA 93 t I IN THE SUPREME COURT I APPEAL DIVISION I Clarke, C.J.N.S.; Matthews and Chipman, JJ.A. I I BETWEEN: I JAMES DOUGLAS HILTZ Appellant I - arid - HER MAJESTY THE QUEEN ~ Respondent I I I I I THE COURT: The appeal is all owed, and a new trial is ordered as per oral reasons for I judgment of Chipman, Matthews, J.A., concurring. l I I S.C.C. No. 02287 OF NOVA SCOTIA ) ) ) E. R. Saunders ) for the Appellant ) ) ) ) ) A. C. Reid ) for the Respondent ) ) ) ) Appeal Heard: ) December 10, 1990 ) ) ) Judgment Delivered: ) December 10, 1990 the conviction is set aside J.A.; Clarke, C.J.N.S. and
I t The reasons for judgment I orally by I CHIPMAN I J .A.: The appellant appeals I trial in the Supreme Court before a "did assault Richard MacKay, I to wit: a Pol ice Constable for the Town of Bridgewater, engaged in the execution of his duties contrary to Section 270(2)(a) I Criminal Code of Canada." In the early morning I Constable MacKay of the Bridgewater officers ·responded to a call on LaHave Street in connection with I a disturbance. On arrival at evidence of a disturbance, and ~ were very upset. Constable MacKay I thought he recognized him as a police. He testified that he knew that there were outstanding I warrants for the appellant's arrest. the appellant his name, the appellant gave a fictitious one. I officers then responded to another I foll owing investigation there, that the appellant was a person who was sought by the police. I MacKay returned to the location of the first call and found the appellant in a car. He told him that he was arresting I him on a warrant at the Bridgewater Detachment. this warrant was for assault causing bodily harm and that there l was another warrant for property damage. I I of the Court were delivered from his conviction following a jury on a charge that he: a Peace Officer, of the hours of October 24, 1989, Town Police and two other their destination they found the occupants of the residence saw the appellant there and person who was wanted by the When Constable MacKay asked The call from next door and Constable MacKay became certain He stated that The appellant was given
- 2 -his Charter rights to counsel escorted to the police car at which point he engaged in verbal confrontation with one of the occupants of the second residence to which the police had been called. getting the appellant into the police car, he suddenly kicked the constable hard in the abdomen just above the groin, knocking him off balance. The other officers eventually subdued the appellant who was then taken to the station and in due course charged with the two of fences for which the offence arising out of the disturbance on LaHave Street. The appellant has raised a of which need be dealt with. The appellant's counsel takes the position that the Crown failed to establish that Constable MacKay was engaged in the execution of assault, and that the trial judge improperly instructed the jury on this issue. It is not disputed that the establish that the officer was prove that he was authorized to make the arrest in question. is an essential ingredient of assault take place while the officer was exercising some power or perf arming some duty imposed on statute. See R. v. Corrier (1972), Constable MacKay was clearly investigating a disturbance on position is that he was entitled to make this arrest, as he did. without warrant. Section 495(l)(c) of the Code provides: I J and a pol ice warning. He was I J As Constable MacKay was J l l warrants were issued and an l number of grounds, only one J ,J his duty at the time of the l Crown must, in order to ] in the execution of his duty, It l the offence charged that the l him either by common 1 aw or ] 7 C.C.C. (2d) 461 at 464. involved in the duty of l LaHave Street. The Crown's J 'J ']
£ - l 495. (1) A peace officer may arrest without I warrant I (c) a person in respect reasonable grounds warrant of arrest or committal, I form set out in Part XXVIII in relation thereto, is in territorial jurisdiction I person is found." The only evidence about the arrest was that MacKay told I the appellant that he was under arrest for assault causing bodily harm on a warrant outstanding in the Bridgewater Detachment and I that there was also a warrant outstanding for him for property I damage. He said that he knew the warrants were outstanding. constable did not give evidence ~ grounds for his belief, if any, requirements of s. 495(l)(c) of the Code. I put into evidence at the trial. clear that he was not arresting the appellant with respect to the I alleged assault by the appellant on one I question. The existence of reasonable I referred to in s. 495(l)(c) of part of the Crown's case. In ~_tg_r_i;_~_y v. I l, Cory, J., speaking for the Supreme Court of Canada said at p. I 9 with respect to s. 450(1) of the 9~-~~ (nows. 495(1)): "In summary, then, the Criminal Code requires that an arresting officer must l have reasonable and probable grounds on which to base the arrest. I I 3 of whom he has to believe that a in any force within the in which the The in so many words as to the that the warrants met the The warrants were not Constable MacKay also made it LeGay on the evening in grounds for belief as the Code must be established as R. (1990), 75 C.R. (3d) subjectively Those grounds must, in
- 4 addition, be justifiable point of view. That is to say, person placed in the position of the officer must be able to conclude indeed reasonable and the arrest. On the other hand, need not demonstrate reasonable and Specifically, they are establish a prima facie case for conviction before making the arrest." The issue whether the officer had the requisite grounds for belief was therefore one that the jury had to resolve. giving his charge, the trial judge said: "So, you have two reasons - of two reasons for the arrest - assault on LeGay and arresting on the Warrants. evidence. There is Constable MacKay and the other officers were called to number 638 that they were answering a complaint and that execution of their duty. find that they were, you that and you're suggestion in any way not difficult to find that they were in the execution of their duty in responding to that call. They were also within the execution of their duty in responding to the second call, -:ind if you accept the evidence of MacKay that he was arresting the accused for the assault on LeGay, the execution of his arrest because he had evidence that there was an assault and under the you that if he was purpose, that under circumstances that it was a proper arrest. I'm also suggesting to you, as far as the law is concerned, that if you were to find that he was arresting him that also would be a proper arrest. as the law is concerned, outstanding Warrants officer in the territory. I ' from an, objective J a reasonable I that there were probable grounds for the pol ice I anything more than probable grounds. not required to J J In .J you have evidence one being the the other being the That's in the no doubt that when that was in the It's for you to but I'm suggesting to not bound by my - that certainly, it's J J Cons table then he was acting in l duty in making that law, I'm directing arresting for that l the law in these l on the Warrants that l As far there are directed to a peace Generally, the J J ]
I. l - 5 -I territory is Nova Scotia and the order is directed to any peace officer in the province of Nova Scotia. Any peace officer has the right to make the arrest. Now, so if the I reason was the outstanding arrests, it's still within the execution of his duty. That's the duty of the peace officer." I In the first pl ace, the evidence did not support the conclusion that Constable MacKay was arresting the appellant for I an assault on LeGay. I In the second place, it was not made clear to the jury that they must make the essential determination whether Constable I MacKay had, in making the arrest, the reasonable grounds referred to in s. 495 of the Code. In the result, we believe that there was misdirection by the trial judge. Pursuant to s. 686(l)(a) and s. 686(2) of the Code, we allow the appeal and order a new trial. I I I Concurred in: ~ I Clarke, C.J.N.S.~~· h<:~~L_,, I Matthews, J.A. I t I I
CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HER MAJESTY THE QUEEN - and - JAMES DOUGLAS· HILTZ (T-R-I-A-L) HEARD BEFORE: The Honourable Mr. Justice Nunn and Jury PLACE HEARD: Bridgewater, Nova Scotia DATE HEARD: May 9 and 10, 1990 COUNSEL: C. Lloyd Tancock, Esq., for the Crown E.R. Saunders, Esq., for the Defence I J S.B.W. 1557 J I l l J l J ,.J l l l l l l 1 ...) ,J J
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.