Citation: R. v. C.E., 2009 NSCA 79
Date: 20090717
Docket: CAC 307434
Registry: Halifax
Between:
C.E.
Appellant
v.
Her Majesty the Queen
Respondent
Restriction on publication: Restriction on publication pursuant to s. 110(1) of the Youth Criminal Justice Act.
Judges: Roscoe, Bateman and Fichaud, JJ.A.
Appeal Heard: June 4, 2009, in Halifax, Nova Scotia
Held: Leave to appeal is granted, the appeal is allowed, the convictions ordered by the Summary Conviction Appeal Court are overturned and the acquittals by the Provincial Court are restored per reasons for judgment of Fichaud, J.A.; Roscoe and Bateman, JJ.A. concurring.
Counsel: Megan Longley, for the appellant
Peter P. Rosinski, for the respondent
110. (1) Identity of offender not to be published - Subject to this section, no person shall publish the name of a young person, or any other information related to the young person, if it would identify the young person as a young person dealt with under this Act.
Reasons for judgment:
[1] CE, seventeen years old, argued with her sister over the telephone about the whereabouts of CE's purse. CE's mother, annoyed with the “yapping”, called the police and asked the officers to have CE removed from the house. Three police officers arrived at the home, and the mother escorted them to CE's bedroom, where CE was looking out the window. The police tried to remove her from the home, which CE physically resisted. CE was charged, under s. 270(1)(a) of the Criminal Code, with unlawfully assaulting peace officers in the execution of their duties and, under s. 129(a) of the Code, with unlawfully resisting a peace officer in the execution of his duty. The Provincial Court trial judge acquitted CE of all charges. A judge of the Supreme Court of Nova Scotia, as the Summary Conviction Appeal Court, allowed the Crown's appeal, and convicted CE of two counts of assaulting an officer under s. 270(1)(a) and one count of resisting an officer under s. 129(a). CE appeals to the Court of Appeal.
[2] Clearly CE resisted the arrest by assaulting the police officers. The issue at trial was whether the officers were in the execution of their duties at the time. The question in the Court of Appeal is whether the Summary Conviction Appeal Court (SCAC) misapplied the appellate standard of review to the trial judge’s decision on whether the officers were executing their duties.
Trial Judge's Reasons
[3] I will recite the facts as found in the oral decision by the trial judge, Provincial Court Judge Derrick. The issue in the Court of Appeal is whether the SCAC contravened the appellate standard of review by revising the trial judge’s findings of fact. So, whether the evidence reasonably supports the trial judge's findings will be significant. For that reason, I will also refer here to the key evidence behind the trial judge's findings. Later I will review the factual observations by the SCAC.
[4] CE was seventeen and lived with her mother and sister at their home in Dartmouth. On February 19, 2007 CE noticed that her purse was missing. She telephoned her sister. They argued over the phone whether the sister took the purse. CE's mother called the police. The trial judge found: "It is clear to me that [the mother] called the police not to have [CE] arrested but to have her removed. [The mother] said in her evidence that she didn't want to hear all the yapping about the stolen purse".
[5] On that point, the mother testified:
Well, her and her sister was...her other sister, which is [C],must have took her purse or whatever, and she was arguing. They were arguing and I said “I don't want hear the yap, yap in the house.” So me and her got in an argument and she was yapping at me and I'm the mother, so I told her if she don't shut her mouth, I'm going to call the police, so I did that.
[6] Three police officers arrived, Constables MacKenzie, Doiron and Harvey. The mother invited them in and briefed them. The trial judge said: "I find that [the mother] did ask the police to remove [CE], and I accept the evidence of the police officers that [the mother] made this request". The mother escorted the officers upstairs to CE's bedroom. These facts are not in issue.
[7] The trial judge said:
Ms. [CE], the police acknowledge, was not arrestable when they first went into her bedroom to speak to her.
[8] Constable MacKenzie, who later initiated CE’s arrest, testified:
Q. When you got to the room she wasn't arrestable, is that right?
A. At that point there, no.
Similarly, Constable Doiron testified:
Q. Okay. She wasn't arrestable for anything when you got to the room, right?
A. Not with my conversation with the complainant. I'm not sure if Cst. MacKenzie at that time had more information, but my understanding was no.
[9] The trial judge described the scene upon the officers' entry into CE’s bedroom:
... [CE] was not doing anything when the police officers went into her room. She was looking out the window. She turned to speak to them. There was no apparent damage done to the home and no one had been hurt.
Also in the bedroom were another young lady and a child, both sitting on a bed. CE testified that they were CE’s niece and the child of CE’s sister. At the officers' request, the young lady and child left the bedroom. Three officers were alone in CE's room with CE, with CE's mother by the door.
[10] On these points, Constable MacKenzie testified:
Q. And what were these three people doing in the room when you first saw them?
A. Ms....CE was over towards the window...
Q. Yes.
A. ...that faces, actually, out the front window because her bedroom was in the front of the ...front of the unit.
Q. Okay.
A. She was over towards the bedroom and this lady with the infant child was sitting on the bed.
Constable Doiron testified:
Q. What did you see in the bedroom?
A. I located a female party, standing by the window and there was another female party with a small child sitting on the bed.
Q. And before Cst. MacKenzie attempted to arrest CE, the girl and the baby were asked to leave the room, is that right?
A. Yes
[11] The trial judge described the events after the officers entered CE's bedroom, leading to Constable MacKenzie's decision to arrest CE.:
[Constable MacKenzie] walked directly over to [CE], who was standing by the window of her bedroom, and relayed what [the mother] had told them and her concerns about damage and safety of others. Although [CE] denies being told these things by Constable MacKenzie, I am satisfied to accept Constable MacKenzie's evidence that he informed [CE] why the police were present. I am satisfied that [CE] was worked up over her missing purse and not at all pleased that the police were now involved. ...
... [CE] was an upset, agitated 17 year old girl with three uniformed police officers in her bedroom. She was being told her mother wanted her out of the house. Her verbally aggressive response to this situation could have been predicted. Constable MacKenzie's response was a decision to arrest [CE] for breach of the peace.
. . .
... I’m not convinced she made further threats, and even if she did, the police view of the conduct in the bedroom was that she became arrestible only once she became uncooperative and agitated towards them.
[12] Constable MacKenzie, the arresting officer, testified about his reason for arrest.
Q. The reason she was arrestable was the breach of the peace?
A. She was being placed under arrest for the breach of the peace.
Q. Right. And you didn't tell her she ... you told her she didn't have a choice except to leave, isn't that right?
A. Her choice... she had a couple choices at this stage, she could leave.
Q. Right.
A. She had the choice, her own choice, she could have made a report in relation to her stolen purse and let the police deal with that, she never chose that option, and she could tell you herself, she was given that option during the interview. She was given the option to make a report to police in relation to her stolen purse, and we could deal with that matter. She refused that. She refused to leave on her own. She refused to come with police, and when we eventually took our stand, say, no, you're going to be arrested, in my mind I was saying she's being arrested for breach of the peace, I'm going to arrest her, “You're under arrest...” ... rips her arm away, takes a swing at me, I can't get it out of my mouth fast enough, unfortunately.
. . .
Q. Okay, So CE hadn't broken any laws when you touched her arm to arrest her, isn't that right?
A. She was under arrest for breach of the peace.
Q. But she hadn't broken any laws?
A. She hasn't...
Q. That's an offence, that's not actually a law, that's just an offence.
A. Yes.
[13] CE testified on this point:
Q. Okay. So what all did Cst. MacKenzie tell you, if anything?
A. He told me to file a report that she stole my purse and he told me that my mother ... he told me that ... why my mother called him here and whatever, and I remember saying to him that ... I remember saying to him that why is he fiddling with a 17 year old in her own bedroom, like, and there’s murderers running around killing people. I told him that my cousin died last month and that the murderers are still running around, why hadn’t they found the murderers yet, and at the point, he told me I was under arrest.
Q. Okay, so did he tell you why he told you that?
A. No. I said, “For what?” and he grabbed my arm at that point. Like ... the way he grabbed me ... like, he kind of grabbed my boob at the same time, so it hurt me and I ripped ... like ... my arm away from him because he hurt me. And then he threw me on my bed and at that point, I got back up and he threw me back down again, and then I pushed him, and then that’s when ... I don’t know, he just forced towards me while I was on my bed. And, at that point, I was kicking, like to get them away from me.
[14] When CE resisted the arrest, the police officers held her down and tasered her. The trial judge said:
I do wonder why at this point Constable MacKenzie and his colleagues did not just retreat to the bedroom and confer with [the mother].
They had successfully removed the other occupants of the room, a young woman and a baby who had been in there with [CE]. At the point just before the attempted arrest, [CE] and the police officers were the only people in the room. [CE] had been doing nothing before the police came into the room. Indeed, she was obviously not perceived as a threat by the young woman in charge of her baby.
By not leaving the bedroom and regrouping, the police set up the circumstances for an intense confrontation with [CE]. Two officers, Constable MacKenzie and Constable Doiron, got kicked. [CE] got wrestled onto the bed, sat on, tasered and handcuffed. The spectacle of a 17 year old girl being tasered in her bedroom is a very disturbing and disconcerting one.
[15] Constable Doiron testified about this intense confrontation:
So we're trying to get her under control, trying to get her left arm behind her to place the cuffs on her to control her. I'm on her bottom half trying to hold her down, Cst. MacKenzie's on the top, Cst. Harvey, I believe, was standing behind me to my right, who had a taser at the time.
. . .
It was totally out of control at that time, so, my main focus was her...
Q. “Her” being?
A. Her being CE, trying to keep her restrained so the other officers won't get hurt. You know... at one point there was 25 to 30 people in that area, hallway, room. The lights were shut out at one point in time for like three seconds probably, it feels like a lot longer than that when you're there. Cst. Harvey did end up touch tasing CE on her left side and...
[16] The trial judge said the following about the breach of the peace that was Constable MacKenzie's stated reason for the arrest.
The situation erupted into a physical confrontation only once Constable MacKenzie went to arrest her. He did so because she was swearing at him and loudly and aggressively stating that she was not leaving.
. . .
[CE] was not committing a breach of the peace when the police arrived at the home. She was not committing a breach of the peace when the police officers went up to her bedroom. She wanted the police to leave. They could see that there had been no damage and no injury to anyone. ...
If a breach of the peace occurred, it was because of the unlawful arrest of [CE], which she was entitled to resist. As the defence noted, no one gathered until [CE] started screaming once she was on the bed with the police officers on top of her.
[17] The trial judge referred to Justice Doherty's discussion of the police officer's common law power of arrest for breach of the peace from Brown v. Regional Municipality of Durham Police Service Board (1998), 131 C.C.C. (3d) 1 (OCA). She referred to R. v. Januska (1996), 106 C.C.C. (3d) 183 ( Ont. Ct. of J., Gen Div), to which she likened CE's case, for the proposition that an officer may not justify an arrest for a breach of the peace that comprises merely the arrestee's vociferous response to the officer's earlier unjustified arrest.
[18] The officers’ reason for CE’s arrest is central to the issue of whether the officers were in the execution of their duty by attempting the arrest. The Crown submitted to the trial judge that Constable MacKenzie "was wrong" in his statement (above ¶ 12) that he had arrested CE “for the breach of the peace”. The Crown urged the trial judge to consider that CE had been arrested for the offence of threatened damage to property, under s. 264.1(1)(b) of the Criminal Code. This would be an arrest under s. 495(1)(a) of the Code. On this matter, the Crown counsel’s exchanges with the trial judge included:
The reality of the situation is my friend, in his submission, really hasn't paid attention to s. 264.1(1)(b) of the Code, threaten to cause damage to property.
. . .
My friend has focused on the breach of the peace issues. Again, that's not the real ...that's not the grounding of this case, if you will.
. . .
THE COURT: ... One is that you are saying that -- I think you said that the breach of the peace issue is not really very central here, but that's what Constable MacKenzie determined he would arrest her for.
MR. NISBET: That's what his evidence was, yeah.
. . .
THE COURT: And the police -- sorry. Constable MacKenzie concluded that he would arrest her at a subsequent point for breaching the peace. So doesn't that make the breach of the peace pretty central here?
MR. NISBET: I'd ask you to consider it this way, Your Honour, and this is a bit novel. It's a bit of a twist. The officer was wrong.
. . .
THE COURT:...[Quoting from Januska] This is page 47, very top.
It should not be open to a police officer simply to arrest for breach of the peace an individual who demands, even vociferously, to be told what he has done wrong in the eyes of the law.
MR. NISBET: Yeah. I -- I wholeheartedly endorse that. I don’t know if that would make Justice -- just trying to find the name, that particular justice very happy, but that makes sense to me. That’s where I was leading into. The police can’t just start asking questions.
. . .
MR. NISBET: No, I'm not saying that at all, but I am saying that it is a crime to threaten to damage someone's property.
THE COURT: But they said she wasn't arrestable. But you're saying - - you're saying I should treat that as having been an incorrect...
MR. NISBET: Yes.
THE COURT: ... analysis, even though that's what the police all said?
MR. NISBET: All the time the police get the law wrong. I mean, just - - I mean, coming back at it the other way, well, a slightly different way, you've got a situation where a youth is promising or has promised to cause some harm, to do something. Are the police just supposed to turn around and walk away? You know, they're talking to the youth. They're trying to get her - - I mean, a lot of these are things are resolved by the people getting separated for an hour or two and...
[19] The trial judge’s decision addressed the Crown’s submission by determining that there was no basis for an arrest for threatened damage to property. The trial judge's reasons state:
What is significant to me is that the police not only didn't arrest [CE] for making a threat, they didn't even consider it. On their own evidence, when they went into [CE]'s bedroom, they did not regard themselves as having any authority to arrest her. She was not, in their opinion, arrestable.
...
The police have testified that in the bedroom [CE] was making threats of retaliation for the stolen purse.
...
Ms. [CE] has denied making these threats. While she may have been sufficiently agitated and upset that her recollection of all events is unreliable, what really worked her up was the attempt to arrest her. When the police came into her room, [CE] may well have still been stewing about her purse, but she was quiet and not doing anything disruptive. I'm not convinced she made further threats, and even if she did, the police view of the conduct in the bedroom was that she became arrestable only once she became uncooperative and agitated toward them.
[20] To summarize, the trial judge found that: (1) the officers’ reason for CE’s eventual arrest was the observed breach of the peace from CE’s agitation in the bedroom, (2) any breach of the peace was caused by Constable MacKenzie’s initial attempted arrest of CE, that preceded any breach of the peace, (3) before the officers entered the bedroom, the officers had no subjective belief that there was a ground for arrest for breach of the peace, threats or anything else, and (4) from the officers’ entry into the bedroom until their initial arrest, CE made no threats that could justify an arrest. The trial judge ruled that the police were not in the execution of their duty, and acquitted CE of the charges.
SCAC’s Reasons
[21] The Crown appealed to the SCAC under s. 813 of the Criminal Code and s. 142 of the Youth Criminal Justice Act. Justice Robertson heard the appeal on June 4, 2008 and issued a written decision on January 16, 2009. The SCAC allowed the appeal, quashed the acquittals and substituted convictions (2009 NSSC 6). She remitted the sentencing to the trial judge.
[22] The SCAC judge neither enunciated nor applied the SCAC’s standard of review and deference to the trial judge’s factual findings.
[23] The SCAC judge reviewed the evidence of the police officers. She found (¶ 20) that CE "did tell the police officers that she would take matters into her own hands when her sister returned home", which the SCAC judge then found (¶ 22) "is important as this threat of damage reiterated by CE to the officers galvanized their resolve in making the arrest to ensure CE left the house and was taken to a safe place, away from the anticipated conflict". She found (¶ 28) that CE's conduct "was a signal to the police of things to come, a reasonable apprehension that CE would commit a criminal offence if she remained behind to settle things on her own terms". She found (¶ 43) that the "officers in these circumstances therefore were, in effecting the arrest, relying on their ancillary common law authority to arrest for an apprehended breach of the peace".
[24] The SCAC judge (¶ 53) summarized by finding that the officers "were acting pursuant to a common law authority in light of a real and threatened breach of the peace by CE and threatened criminal offence to do damage".
[25] The SCAC judge characterized the trial judge's error as legal:
[52] The appeal of C.E.’s acquittal for assaulting two police officers and wilfully resisting arrest, is allowed on grounds one and two of the appeal. The trial judge erred in law in finding Constables MacKenzie and Doiron were not engaged in the lawful execution of their duty in effecting the arrest of C.E.
Issues and Standard of Review
in the Court of Appeal
[26] CE applies for leave and, if granted, appeals to the Court of Appeal under s. 839 of the Code. Section 839 permits an appeal on a question of law alone.
[27] CE's notice of appeal and factum states several arguments, that I organize into three. CE says the SCAC judge erred in law by:
(1) engaging in fact finding and neglecting or altering the trial judge's factual findings, without applying the appropriate standard of review or deference to the trial judge's findings;
(2) misapplying the law governing the common law power to arrest for apprehended breach of the peace.
(3) reversing the trial judge's acquittals based on an argument by the Crown (apprehended breach of the peace) that CE says the Crown did not put to the trial judge.
As I will discuss, I would allow the appeal based on the first ground. It will be unnecessary to consider the second and third.
[28] In R. v. RHL, 2008 NSCA 100, Justice Saunders for the Court set out this Court's standard of review to a decision of the SCAC:
[22] The standard of review we are to apply on an appeal from a SCAC was described in R. v. C.S.M., [2004] N.S.J. No. 173 (C.A.):
[26] Under s. 839 (1), the issue is whether the SCAC has erred in "law alone". The Court of Appeal is considering an appeal from the SCAC, not a de novo appeal from the trial court. This Court must determine whether the SCAC erred in law in the statement or application of the principles governing the review by the SCAC of the trial verdict. R. v. Travers (R.H.) (2001), 193 N.S.R. (2d) 263; 602 A.P.R. 263; 2001 NSCA 71, at para. 21; R. v. Cunningham (P.R.) (1995), 143 N.S.R. (2d) 149; 411 A.P.R. 149 (C.A.), at paras. 12, 21; R. v. G.W., [1996] O.J. No. 3075, (C.A.) at para. 20; R. v. Emery (1981), 61 C.C.C. (2d) 84 (B.C.C.A).
See as well R. v. Hayes, [2008] N.S.J. No. 100 (C.A.) per Hamilton, J.A. at ¶ 21-22.
To the same effect: R. v. Farrell 2009 NSCA 3 at ¶ 9.
[29] On the first ground of appeal, I will consider whether the SCAC judge committed a legal error in her application of the SCAC's standard of review to the trial judge’s findings of fact.
Analysis
[30] In R. v. Nickerson, 1999 NSCA 168, Justice Cromwell described the standard to be applied by a Summary Conviction Appeal Court to a decision of a trial court:
[6] The scope of review of the trial court’s findings of fact by the Summary Conviction Appeal Court is the same as on appeal against conviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(i) and R. v. Gillis (1981), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, [1994] 1 S.C.R. 656 at 657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge’s conclusions. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, a summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was some evidence to support the trial judge’s conclusions nor a new trial on the transcript.
To the same effect: RHL, at ¶ 21 and Farrell, at ¶ 9.
[31] In R. v. Clark, [2005] 1 S.C.R. 6, Justice Fish for the Court stated a similar principle to govern the review by appellate courts of factual findings by trial courts:
[9] ... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; Lensen v. Lensen,[1987] 2 S.C.R. 672; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Schwartz v. Canada, [1996] 1 S.C.R. 254; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
To the same effect: R. v. Howard, [1994] 2 S.C.R. 299 at page 307.
[32] Critical facts in this prosecution were: (1) When did the officers subjectively believe there was a ground for CE's arrest? (2) What was the officers' subjective reason for CE's arrest? (3) Did CE threaten to damage property after the officers entered her bedroom?
[33] The trial judge answered those factual questions.
(1) She found that the officers did not believe CE was arrestable until after they entered her bedroom (above ¶ 7). This was based on the express testimony to that effect of Constable MacKenzie, the arresting officer (above ¶ 8).
(2) She found that the subjective reason for the arrest was CE's observed breach of the peace, constituted by CE's agitated behaviour toward the police in the bedroom, and not any threat by CE of future misconduct (above ¶ 11 and 19). This was based on the testimony of Constable MacKenzie that he arrested CE for "the breach of the peace" because CE "refused to come with police" so the police "took our stand, say, no, you're going to be arrested for breach of the peace, I'm going to arrest her" (above ¶ 12). This version was consistent with CE's testimony (above ¶ 13). The Crown's counsel, in his submissions to the trial judge, urged that Constable MacKenzie "was wrong" about his reason for the arrest, and that the real reason for the arrest was CE's threat to damage her sister's property (above ¶ 18). The trial judge rejected that version of the officers' subjective reason for the arrest (above ¶ 19), and again the trial judge's view was supported by Constable MacKenzie's testimony (above ¶ 12).
(3) The trial judge noted that the police officers testified that, in the bedroom, CE threatened retaliation for the stolen purse. The trial judge also stated that CE denied making those threats. The trial judge then found "I'm not convinced she made further threats" (above ¶ 19). The trial judge did not misapprehend the officers’ testimony, considered CE’s different testimony, and found that the Crown had not persuaded her beyond a reasonable doubt that CE made threats in the bedroom.
[34] The SCAC judge nowhere measured the trial judge’s findings against the evidence to address whether the trial judge's findings were so unsupported to be unreasonable and palpably wrong. The SCAC decision is silent on the standard of review. Rather, the SCAC judge found the facts on her own, with findings that contradicted those of the trial judge. The SCAC judge found that: (1) CE "did tell the police officers that she would take things into her own hands when her sister returned home"; (2) those threats "galvanized the resolve" of the officers to arrest CE; and (3) the officers' reason for arrest was that CE "would commit a future criminal offence if she remained behind to settle things on her own terms", which the SCAC judge said satisfied the common law definition of apprehended breach of the peace.
[35] The SCAC judge apparently did not appreciate that she had renovated the facts, because she concluded that the "trial judge erred in law" (above ¶ 25).
[36] In the Court of Appeal, the Crown submitted that the trial judge erred in law by not considering whether CE could have been arrested for an apprehended breach of the peace. At the hearing in the Court of Appeal, counsel for the Crown identified the apprehended breach of the peace as the potential damage to the sister’s property after the sister’s eventual return, not the continued melée in the bedroom. I need not comment whether such a threat of damage to the sister's property would be an "imminent" and "substantial" breach of the peace under the common law definition stated by Justice Doherty in Brown v. Durham, at ¶ 74. The analysis does not reach that point.
[37] In Brown, Justice Doherty (¶ 74) said that "[t]o invoke either power [to arrest under s. 495(1)(a) or at common law for anticipated breach of the peace], the police officers must have reasonable grounds for believing" that the arrest would avert an anticipated breach of the peace. As with an arrest under s. 495(1)(a) of the Code, the objective test is applied to the officer's subjective ground for arrest. R. v. Feeney, [1997] 2 S.C.R. 13, at ¶ 24. R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-1. The officer's subjective ground for arrest is a fact, not a point of law.
[38] Here, according to the trial judge, (1) the officers had no subjectively believed ground for arrest before they entered the bedroom, (2) after they entered the bedroom CE made no threat of future misconduct that could trigger a police arrest power, and (3) the officers' subjective basis for the arrest was the observed breach of the peace from CE's agitated response in the bedroom, not the anticipation that CE might damage her sister's property when her sister returned at some future time.
[39] The factual basis for the SCAC's consideration of anticipated breach of the peace, as a ground for CE's arrest, did not exist unless the SCAC judge altered the trial judge's findings. To achieve this, the SCAC judge engaged in independent fact finding without applying the required standard of review to the trial judge's findings. As in Farrell, ¶ 21, that is an error of law by the SCAC judge. Applying the standard of review that the SCAC should have applied, the trial judge’s findings are reasonably capable of being supported by the evidence that I have set out earlier (¶ 4-19, 33) and exhibit no palpable and overriding error.
Conclusion
[40] I would grant leave to appeal and allow the appeal, overturn the convictions ordered by the Summary Conviction Appeal Court and restore the acquittals by the Provincial Court.
Fichaud, J.A.
Concurred:
Roscoe, J.A.
Bateman, J.A.