IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused, Gerald Gladue, is charged with assault of Cst. Matthew Hutchins and Cst. Craig Abraham, each being peace officers engaged in the execution of their duty, contrary to s. 270(1(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2]         This case raises a number of issues related to the lawfulness of arrest of a person in a dwelling house. The defence did not allege breach of the accused’s Charter rights under s. 8 or 9, and the trial proceeded on the basis of requiring the Crown to establish that the arrest of the accused in the dwelling house was compliant with the Feeney requirements as set out in the Criminal Code. In this regard, the issues in dispute include whether the arrestee must establish standing to allege the illegality of their warrantless arrest in a dwelling house or whether the burden is on the police to justify their warrantless entry. A related issue is whether one resident can consent to police entering jointly occupied premises to investigate or arrest the other resident without a Feeney warrant.

[3]         The Crown contends that the accused has not established that he had a reasonable expectation of privacy in the dwelling in which he was arrested. If he had such an interest, the Crown further contends that in appropriate circumstances one resident can grant consent to police to enter into jointly occupied premises to investigate or arrest a person who lives there without the necessity of a warrant to enter the premises.

[4]         The defence contends that the required legal standard for arrest of a person in a dwelling house is set out in s. 529 of the Criminal Code, and the Crown bears the burden of justifying a warrantless entry in the circumstances. The defence states that the right of state agents to enter jointly occupied premises is limited by law, and does not permit a consented, warrantless entry by one resident for the purpose of arresting another resident. The defence position is that police officers were not acting in the lawful execution of their duties when they entered the residence without a warrant, and the accused was entitled to resist in the manner in which he did.

[5]         In the early morning hours of August 22, 2021, three Burnaby RCMP officers responded to a dispatch about an uttering threats allegation linked to a resident in a house on McKay Avenue in Burnaby. The dispatch included information that the suspect and the complainant were housemates living in a shared basement suite of a detached dwelling. The dispatch provided the name of the suspect, Gerald Gladue, and the subject address. Mr. Gladue was believed to be intoxicated, possibly suffering from a prior brain injury, and had a history of police involvement.

[6]         Three RCMP officers, Constables Abraham, Baji and Hutchins arrived on scene very close in time of one another. All were in police uniform and operating marked police vehicles. The complainant, Mr. Riley Gardner, was waiting outside on the sidewalk and several hundred feet away from the subject residence. Mr. Gardner flagged down the police and made himself known as the complainant.

[7]         Mr. Gardner told Cst. Baji that his housemate, Gerald Gladue, had threatened to kill him, and he had left the residence in fear for his personal safety. He said that Mr. Gladue was alone in the basement suite. Mr. Gardner gave police directions to his residence. Cst. Baji began to get further details from Mr. Gardner while Cst. Hutchins and Cst. Abraham walked onto the lot of the subject property and toward the door of the basement unit.

[8]         Cst. Baji testified that Mr. Gardner told her he wanted his housemate removed from the residence, although her notes did not specifically reflect this request. Cst. Hutchins and Cst. Abraham did not testify to hearing this request.

[9]         I find that at the time Cst. Hutchins and Cst. Abraham approached the door to the basement suite, they knew that Mr. Gardner’s housemate had allegedly made a threat to cause death or serious bodily harm to him. The cohabitant was believed to be Gerald Gladue, and he was still in the basement suite. Cst. Abraham determined he had grounds to arrest Mr. Gladue for uttering threats on his approach to the front door.

[10]      There were lights on in the basement suite, and police knocked on the door. A male opened the door. The door opened inwards and police initially stood outside and at the threshold.

[11]      Police explained to the male at the doorway that they were investigating a threat complaint, and asked if his name was Gladue to confirm that he was Mr. Gardner’s housemate. The occupant did not respond or gave a non-response. He left the front door open and walked back into the residence. He was described by the police as an Indigenous male, semi-dressed in a t-shirt and undershorts. He appeared to be under the influence of alcohol.

[12]      After the occupant walked away from the door, both officers followed him into the suite. They testified that the entry was for the purpose of asking further questions, including confirming the identity of the male, and that he was Mr. Gardner’s housemate. The man did not want to talk with police. He moved toward his bedroom, appeared to change his mind and went into the bathroom to urinate. He then exited the bathroom and walked towards the front door and called out Mr. Gardner by name. The police remained in the basement suite as the occupant took these steps.

[13]      Police testified that when the male called Mr. Gardner’s name, it confirmed that he was his housemate. Police then moved to arrest him for the uttering threats offence.

[14]      Police steps to arrest began inside the unit in the common living room, dining and kitchen area. The suspect resisted as soon as Cst. Abraham placed an arm on him to place him in handcuffs.

[15]      On being told he was under arrest, the male took what Cst. Hutchins described as a fighting position, moving into a wide stance with his hands clenched, described as a ‘bladed’ standing position. He resisted Cst. Abraham’s attempts to handcuff him, and began to fight. At some point, as Cst. Abraham and the male were struggling, the male bit down on Cst. Abraham’s thumb sufficiently hard to cause pain. The officer wrestled his hand out of his glove, leaving the glove in the male’s mouth.

[16]      On seeing the struggle, Cst. Hutchins rushed forward to take the suspect off balance and to the ground. The suspect put his forearm around the officer’s neck to hold him in a headlock. Cst. Hutchins tried to hold onto the suspect square to Cst. Abraham who was taking steps to deploy a Taser.

[17]      The first Taser firing did not connect, the second successfully and temporarily incapacitated the male, and it took a third firing to get full compliance before he could be handcuffed and removed from the basement suite. The suspect was arrested, given his Charter rights and official police warning.

[18]      Due to the man’s state of undress, Cst. Hutchins retrieved a pair of pants from the suspect’s bedroom to wear over his shorts for transport to custody. The pants contained a wallet that contained identification of Gerald Gladue. Police confirmed the identity of the man they arrested to be Gerald Gladue from CPIC information and wallet identification. The accused was identified in court as the man police dealt with in the basement suite.

[19]      Mr. Gladue was charged with uttering a threat to cause death or serious bodily harm to his housemate, Riley Gardner, contrary to s. 264.1(1) of the Criminal Code. Mr. Gardner did not attend to testify and Crown directed a stay on the uttering threats count at the commencement of trial.

[20]      Mr. Gladue is also charged with assaulting Cst. Abraham and Cst. Hutchins, peace officers engaged in the execution of their duties, contrary to s. 270(1)(a) of the Criminal Code.

[21]      The Crown bears the burden of proving each element of the offence beyond a reasonable doubt. As noted in R. v. D.L.M., 2018 BCSC 1247 at para. 55, in a prosecution under s. 270(1)(a) of the Criminal Code, the Crown must establish that:

[22]      The first two elements are not in dispute on the facts. The issue to be resolved in this case is whether the Crown has established the third element beyond a reasonable doubt.

[23]      Because police entered the basement unit in which Mr. Gladue lived without a warrant, the Crown must establish the legality of their entry in order to obtain a conviction. As noted in R. v. D.L.M. at para. 57, “the law is well settled that a police officer unlawfully on premises is not acting in the course of their duty” and a person lawfully in possession may resist the trespass.

[24]      The Crown agrees that if the arrest is found to be unlawful, the prosecution will have failed to prove an essential element of the offence.

[25]      I reiterate that the accused is presumed to be innocent of the charges until proven guilty to the criminal standard of guilt beyond a reasonable doubt. The burden remains on the Crown to prove guilt, and it never shifts to the accused.

[26]      Counsel have provided case authorities in support of their position as to the lawfulness of entry into a dwelling house to arrest a person therein, including the following:

[27]      I summarize briefly the law with respect to arrest in a dwelling house.

[28]      The common law practice of proper announcement and entry into a private dwelling house to arrest a suspect therein, without a warrant, was found to be unconstitutional and in violation of s. 8 of the Charter in R. v. Feeney, 1997 CanLII 342 (SCC).

[29]      In Feeney, a majority of the Supreme Court held that notwithstanding the power of a police officer to arrest a person for an indictable offence without a warrant under s. 495(1), except in exigent circumstances or in cases of hot pursuit, a warrant to enter a private dwelling to make an arrest is required under the law: Feeney, paras. 48-49.

[30]      Following the guidance provided by the Supreme Court of Canada in Feeney, Parliament enacted ss. 529-529.5 of the Code, mandating that police must obtain an entry warrant to go into a dwelling house to arrest a suspect, unless the statutory exceptions prevail. Section 529.3(2) allows a police officer to enter a private dwelling without a warrant under specified "exigent circumstances", defined as follows:

[31]      The Crown contends that an accused, who is challenging the legality of a warrantless arrest in a dwelling house, must establish standing by showing that they had a reasonable expectation of privacy within that space or location.

[32]      As noted, this case proceeded on the basis that the accused contested the lawfulness of his arrest, but did not allege a Charter breach under s. 8 or s. 9, or seek a Charter remedy. The Crown contends that the accused must establish he had a privacy interest in the dwelling in which he was arrested and the defence has not called any affirmative evidence to establish this fact.

[33]      I accept that the privacy rights under s. 8 the Charter underlie and animate the reasoning in Feeney. In that case, the burden was on the Crown to establish the requirements of a lawful arrest, including lawful entry into the home for purposes of making an arrest. The issue of the accused’s standing to challenge the arrest did not seem to arise in Feeney, the facts of which were that the accused was sleeping in a trailer located at the rear of the property of another person just prior to police entry into his trailer.

[34]      I note that the language used in s. 529 and s. 529.1 the Criminal Code speaks of a “person” or suspect in a dwelling house, and does not refer explicitly to a resident or an inhabitant. As noted in Feeney at para. 49, “warrantless arrests in dwelling houses are in general prohibited. Prior to such an arrest, it is incumbent on the police to obtain a judicial authorization for the arrest by obtaining a warrant to enter the dwelling house”.

[35]      I am not persuaded, as the Crown urges, that to support a Feeney argument, the defence bears the burden of first establishing that the accused has a reasonable expectation of privacy. That appears to shift the Crown’s burden to establish a lawful entry of a dwelling house to make an arrest to the defence. However, I do accept that evidence of a privacy interest by the arrestee in the location of state action is both probative and relevant and is a factor to consider in assessing the lawfulness of state conduct.

[36]      The issue of standing was discussed by the SCC in R. v. Jones, 2017 SCC 60. The Court held that the defence can rely on the Crown theory of the case and ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against the accused to establish the accused’s subjective expectation of privacy.

[37]      In the case at bar, neither the original complainant Mr. Gardner nor the accused Mr. Gladue testified. Mr. Gardner told police of the threats made by his housemate who was still inside the residence. It is correct that Mr. Gardner’s out of court statements to police are inadmissible hearsay. However, the Crown properly and permissibly relies on the hearsay statements to establish the state of mind of the officers and to support the lawfulness of the steps they took in response to the information they received.

[38]      The evidence is that police believed that the complainant and the accused shared the basement suite as housemates. Accordingly, police can be taken to understand that each of them had a reasonable expectation of privacy in their shared dwelling.  

[39]      Further, police testified about what they observed of the accused and of his residence. In Clarke, the BCCA at para. 34 citing R. v. A.M., 2008 SCC 19, noted that when an accused does not testify, inferences may be drawn from the totality of the circumstances to determine whether the accused had a subjective expectation of privacy.

[40]      I find that the evidence establishes that police understood that they were investigating the threatening conduct of a resident of a basement suite who was believed to be present within the suite. In my view, these bare facts would be sufficient to put police on notice that their entry into the suite was required to be compliant with the law. They found a person at the door of the basement in the early morning hours who had all the hallmarks of a resident, including that he was present within the dwelling, appeared to have control of entry into the premises, and by his state of undress clearly lived within the dwelling.

[41]      The Crown has referred the court to a number of cases in which the arrestee had a tenuous connection to the place in which he was arrested. For example, in R. v. Guiboche, the father’s residence was a temporary hideout of the accused and there was independent evidence from Crown witnesses that the accused lived at another residence. The evidence established that the accused did not reside in the home in which he was arrested and police had third-party consent to enter.

[42]      In R. v. Okemow, the accused permitted police to enter premises and told them he stayed there but did not live there. Beyond that there was scant evidence of his residency, when weighed against direct evidence that persons other than the accused were authorized to live there.

[43]      In this case, the police eyewitness evidence of Mr. Gladue’s occupation, connection to and control of the dwelling is stronger than that of the complainant in R. v. Okemow, who merely asserted he was a tenant. In my view, the defence is not required to tender additional evidence of a rental agreement or call on the accused to testify that he was a resident of the basement unit. I find that the testimony of the police is sufficient to establish that the individual who answered the door and appeared to have control of the premises, who moved to his bedroom and bathroom, and kept his clothing in the dwelling, was a resident of the dwelling.

[44]      I am satisfied that there is sufficient evidence to find that not only did police understand that Mr. Gladue was a resident, there was no evidence to the contrary. Mr. Gladue had a reasonable expectation of privacy in the basement suite: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128. Accordingly, the burden is on the Crown to prove that police were acting in accordance with the law at the time they entered a private dwelling to arrest the accused.

[45]      A body of case law has developed in which the courts have held that a person’s privacy rights in places or things they share with others may be less attenuated, and attract a lesser degree of protection from state intrusion. The question of whether one cohabitant can consent to police entry into jointly shared premises was referred to but not decided by the majority of the Supreme Court of Canada in R. v. Reeves.

[46]      In R. v. Reeves, the accused’s common law spouse turned over a computer she shared with the accused on which she had discovered child pornography. She invited police to enter the home she shared with the accused who was at the time on court imposed conditions not to return to the spousal home. Police entered the home on the cohabiting spouse’s invitation in the absence of the accused. The SCC held that the accused had a reasonable expectation of privacy in the shared computer and he had not waived his privacy rights. The warrantless seizure of the shared computer violated the accused’s s. 8 Charter rights.

[47]      The majority in Reeves deferred addressing the issue of whether the police reliance on the sole consent of the accused’s spouse to enter their jointly shared home constituted a separate violation.

[48]      The central point arising from Reeves is that while a citizen may bear some risk of loss of privacy in sharing a computer (or a place or thing) with another, they do not bear the risk that the co-sharer can consent to waiving another person’s Charter rights in the computer by giving police permission to seize the computer without prior judicial authorization.

[49]      Justice Côté in Reeves was prepared to address the issue of whether one resident could validly consent to police entry into a shared home without the necessity of prior consent of other residents. Justice Côté said a cohabitant can consent to police entry into common areas of a shared residence, provided the consent is informed, voluntary, revocable, and limited to shared places or things. Justice Côté concurred with the majority that the warrantless seizure of the shared computer was unlawful.

[50]      Of note, the pre-Reeves appellate cases include the decision of the B.C. Court of Appeal in R. v. Clarke, 2017 BCCA 453, which held that a co-resident can grant consent to police to enter into commonly shared spaces. The accused in Clarke was found to be an “intermittent resident” and had a diminished expectation of privacy in the common or shared areas of the residence. However, the co-resident could not grant consent to police to search the accused’s private space. The Court noted at para. 62 that:

[51]      I note that the comments of the B.C. Court of Appeal in R. v. Clarke at paras. 55 and 62, are consonant with Justice Côté’s analysis but not adopted by the majority of the SCC in Reeves.

[52]      Also predating Reeves is Tymkin v. Ewatski et al., 2014 MBCA 4, a case which discussed consent entry to dwelling houses. The Manitoba Court of Appeal noted that a warrant to enter premises may not be necessary if police are given “consent to enter the premises for a valid investigatory purpose, rather than for the purpose of arresting an occupant, and obtain reasonable grounds to arrest the occupant during the in-house investigation”. The arrest of an occupant in the dwelling house without a warrant in such circumstances will be legal if a “sufficiently informed consent” was obtained from a person having a privacy interest in the dwelling house: paras. 73-78.

[53]      The consent of a co-resident for police to enter a dwelling house must be express and not implicit. It must be informed, voluntary and revocable. In R. v. D.C.R., 2017 BCPC 80 the court noted:

[54]      A number of other cases have considered the consent by one party for police to enter shared premises. In R. v. Couturier, the Court of Appeal found that the police were acting lawfully in entering a dwelling house after being invited by the father of the accused to do so. The accused had been involved in a hit and run, and had returned to the home he shared on weekends with his father. The father saw police on his property and gave an “unambiguous” invitation to them to enter the home, and implicated his son in the hit and run. The Appellate Court held that the police entered the home on a clear invitation of the owner and the entry was not for purposes of arrest but to continue the hit and run investigation.

[55]      R. v. Thrasher dealt with the issue of cohabitant consent and was decided after the SCC decision in Reeves. The Northwest Territories Supreme Court considered an appeal from conviction of, inter alia, resisting a peace officer engaged in the execution of his duty, contrary to s. 129(a) of the Criminal Code. The appellant’s sister was the sole tenant of an apartment suite and had given the appellant permission to stay with her after becoming his surety under a recognizance. The appellant had a set of keys to the unit, had his own bedroom, and contributed to the rent. Police attended at the door of the apartment after a neighbour’s complaint of curfew breach. The appellant’s sister consented to police entering into the apartment, over the objections of the appellant, to arrest him. The NWT Supreme Court affirmed that there was no breach of the appellant’s rights because his sister, as the primary resident and accused’s surety, gave an informed consent to allow police entry into common areas of the apartment. The appellant’s status within the dwelling appeared more to be an invitee than a resident.

[56]      In D.R.E., police obtained the consent of a cohabitant to enter the accused’s home for investigative purposes. Police left and continued to form their grounds for arrest, and returned to the accused’s home. They again received third-party permission to enter into the hallway, and asked the accused to accompany them to the detachment. Police waited until the accused was in the police truck parked outside the residence before arresting him. D.R.E. at paras. 34-38 discusses the cases relied on by the Crown, including Thrasher and Tymkin, and concludes that a co-tenant can validly consent to police entry into the common areas of jointly shared premises.

[57]      If any consistent legal principles can be discerned from the foregoing cases, they are:

[58]      Left unclear is whether or under what circumstances police have authority to arrest a person within the dwelling house after a consent entry is granted by one resident. There is a line of authority which holds that if the grounds for an arrest crystallize whilst police are in a dwelling house on a consent entry, they may detain or arrest a suspect found within the dwelling: R. v. Couturier at para. 42; R. v. Petri at para. 32.

[59]      The comments of the SCC in Reeves, albeit not squarely engaged with this particular issue, provide some guidance in addressing this point.

[60]      Under the analysis in Reeves, assuming that one co-resident can consent to police entry of a home they share with other residents, it is clear that the same co-resident cannot consent to the seizure of something in which the other resident has a reasonable expectation of privacy or other constitutional right. In circumstances where police gain entry to a shared residence through the consent of one resident, the scope of that resident’s consent would be limited to waiving the privacy and security interests of the person giving such consent and not the rights and interests of others in the residence. Reeves indicates that the boundary of a resident’s own consent to waive privacy or other constitutional rights ends where the privacy and liberty interests of the other co-resident begin or intersect.

[61]      I find that each officer gave their evidence in a straightforward manner, being generally reliable in their recall, and as accurate as they could be in testifying to the circumstances involving their interactions with Mr. Gladue. There is no dispute on the evidence that at all times police were interacting with the accused, Gerald Gladue, in his shared residence with the complainant.

[62]      On a totality of the evidence, I find as follows:

[63]      Based on a totality of the evidence, there is no doubt as to the offender’s identity, or the date and jurisdiction in which the allegation arose. Also on the totality of the evidence, I find that the police officers had reasonable and probable grounds to believe that the individual who appeared at the basement door in a half-dressed state lived in the basement unit and was the complainant’s housemate, Gerald Gladue. They had formed reasonable and probable grounds to believe that he was arrestable for the offence of uttering threats. I am satisfied police entered the dwelling for the purpose of making the arrest.

[64]      It is not in dispute that when the officers attempted to arrest him, Mr. Gladue was well inside the jointly shared dwelling house.

[65]      There were no exigent circumstances related to safety of persons because no one other than Mr. Gladue was present in the residence. Nor can it be said that there were extenuating circumstances such as disappearance or destruction of evidence related to the offence. This was not a case of fresh pursuit into the dwelling, another valid exception to the requirement for an entry warrant to go into a residence to arrest an occupant.

[66]      This leaves for consideration the issue of the apparent or implied consent of Mr. Gladue’s co-resident, Mr. Gardner, for police to enter the residence. The evidence falls short of establishing informed consent.

[67]      The facts in Thrasher and Couturier turn on the clear and informed consent of the primary resident. Mr. Gardner was not a witness at trial to confirm the nature or scope of his consent. On the facts I have found, police in the case at bar did not expressly seek Mr. Gardner’s prior consent to enter the basement unit. I accept that Mr. Gardner told police of Mr. Gladue’s presence in the dwelling house, and police likely understood he wanted the man gone from the home. At best, police assumed they had the implied consent of the complainant to enter the residence.

[68]      I conclude police did not have a valid consent to enter the basement suit and their entry was without legal authorization.

[69]      Even assuming a fully informed consent, I have determined the complainant as co-resident could not authorize or grant consent to police to enter a jointly occupied dwelling house, if entry was for the sole or primary purpose arresting the other co-resident inside the dwelling house. 

[70]      If, as noted by the SCC in Reeves, police are prohibited from relying on the consent of one party to enter premises to seize without a warrant a jointly shared object in which the other, non-consenting party, has an expectation of privacy, it seems even more compelling that a co-resident cannot consent to the warrantless entry of police into jointly shared premises if the sole or primary purpose of the entry is to detain and arrest the occupant.

[71]      Had Mr. Gardner been present within the dwelling and invited police to enter, and circumstances within revealed an air of urgency, this may have granted police authority under the exigent circumstances exception to effect the arrest without a warrant. These are not the facts in this case.

[72]      In the circumstances of this case, where police were at the doorstep of a jointly shared residence and the suspect, Mr. Gladue, was clearly inside the dwelling house, police required a Feeney warrant to enter to arrest him. Police could communicate with the suspect at the door front, but could not rely on their understanding of an implied consent of the joint householder, Mr. Gardner, to enter without a warrant because, on the facts I have found, the entry was for the purpose of arresting Mr. Gladue within the dwelling.

[73]      In my view, the fact that Mr. Gladue left his door open and walked away from police is not an invitation to enter. Petri is not of assistance because central to the lawfulness of the arrest in Petri was that police made a tentative and limited incursion just past the open doorway for investigative purposes, and no further than the entryway landing of the home. In the case at bar, police already had reasonable grounds to arrest Mr. Gladue when they followed him past the doorway entry point. Although the shared basement suite was not capacious, police were in the living and dining areas of the suite after entry and in a position to observe Mr. Gladue in his activities of daily living, including his use of the bathroom.

[74]      The prohibition against a warrantless entry into a dwelling house to arrest a person in their home protects the liberty, privacy and security interests of residents to be secure in their homes against state intrusion. In R. v. Stairs, 2022 SCC 11, the Supreme Court of Canada affirmed the privacy and sanctity of one’s dwelling as follows:

[75]      In my judgment, on the particular facts of this case, a co-resident’s consent for police to enter shared accommodation for the purpose of removing and arresting another resident creates a broad exception to the requirement that police obtain a Feeney warrant to arrest a person in a dwelling house. Mr. Gardner’s implied consent to police entry into shared premises is circumscribed by Mr. Gladue’s rights, as a resident and co-occupant of the dwelling house at the time, to require police to act in accordance with the legal framework for police entry into a dwelling house to make an arrest.

[76]      After a consideration of the totality of the evidence, and the applicable case law, I have concluded that a warrantless entry into a dwelling house is presumptively unlawful unless the Crown discharges the burden to show that the entry can be justified on the basis of common law or statutorily defined authority, including exigent circumstances, hot pursuit, or under a valid consent entry granted by a person having a reasonable expectation of privacy in the dwelling house or by a person having other legal authority to grant entry.

[77]      I conclude that police cannot rely on a cohabitant’s presumed consent to make a warrantless entry, particularly if such entry is not for investigative purposes but for the purpose of arresting another cohabitant within the dwelling house. In such circumstances police are required to obtain a Feeney warrant.

[78]      I conclude that the officers in this case engaged in an unlawful, warrantless entry into a dwelling house in which Mr. Gladue was present and the entry was for the purpose of arresting him. Mr. Gladue resisted the unlawful entry and arrest. In the result, the Crown has failed to prove an essential element of the offence of assaulting a peace officer in the execution of his duty. I find Mr. Gladue not guilty.

[79]      I conclude by thanking both Crown and defence counsel for their responsive and helpful written submissions on the facts and law, all of which were of great assistance to the Court.