The Defence Toolkit – October 21, 2023

Evidence in the blended Voir Dire:

 [5] The Court has heard the evidence of two police officers who attended at the accused residence on December 12, 2022, on two separate occasions. All of the events were filmed on police body warn camera entered as Exhibit 1 in the Voir Dire.

[6] Cst. Fischer has been a member of Calgary Police Service since February 1, 2021. On December 12, 2022, he was working the night shift with his partner, a more senior officer, Cst. Trim, the second Crown witness.

[9] In response to the dispatch call the officers arrived at the residence at 23:15:09 hours in their marked patrol car. A man standing in the living area of the residence identified himself as the landlord who made the call. The man directed officer Fischer and his partner to the downstairs access stairs located at the rear of the residence. Police went down the stairs and knocked at a door indicating that they wanted to chat with the occupant. A man, later identified as the accused, came out of the bedroom in the basement. He immediately said “Get the F--- out of my house”. The accused was belligerent and confrontational. There was a female present in the basement who identified herself as the sister of the accused.

[10] Initially the female attempted to put some distance between the accused and the police officers. The accused, according to Officer Fischer, shoved the female out of his way. Officer Fischer thought the accused was “very drunk”. He identified signs of glazed eyes and slurry speech. The officer endeavoured to verbally de-escalate the tension in the room. He was successful, the accused appears calm as depicted on the body worn camera at 23:19:39 hours.

[11] The police then engaged in a conversation with the female. She informed the officers that she came to see the accused because her boyfriend assaulted her. The officers have a conversation, and it is determined that the sister of the accused would be departing the residence shortly, via Uber.

[12] Officer Fischer testified “we were confident that this was the end of the disturbance”. The police depart after speaking to the landlord on their way out of the residence.

[13] Thirty minutes later, Officer Fischer and his partner receive another call back to the same address. This time they were informed that the female, the sister of the accused had come upstairs asking the landlord to call police. On the way back to the residence police officers checked CPIC/ Sentry systems and determined that the accused was bound by conditions of release to have no intoxicants. They also determined that there were outstanding warrants for the arrest of the accused. There was a picture on the police system which they confirmed was the same person that they were dealing with earlier at the residence, the accused, Muddy Brazeau. The officers returned to the residence. The body worn camera is activated again. They proceed to the rear of the residence at the direction of the landlord. This time the police enter the residence from the back door. They proceed down the same staircase into the basement. On the way down to the basement the landlord expresses his displeasure that troubles are continuing with the people in the basement of the residence. There was brief involvement with another occupant in the basement suite. This occupant complained that the female who had earlier interacted with police is now in his bedroom. The officers descend the stairs into the basement. They see the accused standing in the landing area of the basement. Officer Fischer informs the accused that he is under arrest “for warrants and breaches”. It is officer Fischer’s intention to isolate the accused from other occupants in the basement. The female who had identified herself as the sister of the accused now tells police “he hit me, he stabbed me”. Officer Fischer testified that he knows that he has authority to arrest the accused for breaches of release conditions which prohibit the accused from consuming intoxicants. The officer also knows that there are warrants outstanding for the accused.

[14] Officer Fischer proceeded to the accused. He grabbed his right arm, placing it behind his back, while placing a handcuff on the right wrist. Officer Fischer testified that as he was going to secure the left hand of the accused in order to complete the handcuff, he determined that the accused “jerks away”. Officer Fischer testifies that the left hand of the accused came up. Officer Fischer testifies “I thought he was going to punch my partner in the face”. Officer Fischer then proceeds to instantly take the accused to the ground. In seconds, the accused is on the ground. As he is taken to the ground his head strikes the door. He sustains a head injury with active bleeding. [Emphasis by PJM]

[15] The body worn camera, Exhibit 1, records the arrest. The Court can clearly see the accused taken to the ground. He is now lying on the floor with blood flowing from a head wound. The force of the accused’s head striking the door and hitting the ground causes the accused to lose consciousness. Officer Fischer explained to the Court that his decision to take the accused to the ground when he perceived that the accused had jerked away during the handcuff process is safer as it would give police “more control” over the accused person. According to the officer “he was less likely to be hurt”.

[17] Officer Fischer explained that the injury occurred as the arrest was undertaken in “a confined space”. The close quarters, in officer Fischer’s opinion, made it difficult to take the accused into custody. In addition to obstruction of the furniture and room layout there were also other people in this basement space. Officer Fischer explained to the Court that he thought the movement of the accused after he had placed the handcuff on the right hand was what he perceived to be a swing of the left arm. Officer Fischer testifies that “once I saw him swing, my priority is to get him to ground”. Officer Fischer described the physical movement of the accused in detail. He testified that as the accused went to ground, he rotated to the right and swung around with the left arm. The accused continued to rotate on his way to the floor. In the officer’s opinion the accused’s head hit the door and the ground thus rendering the accused unconscious. The Court can see that the accused is unconscious and actively bleeding on the floor from a wound to his head caused by the take down. The Court observed the officer bending over the accused holding his shoulders or other parts of his body.

[18] After a period of approximately two minutes the accused appears to regain consciousness. The Court watches his movements as he regains consciousness. The body worn camera shows the accused clearly in medical distress, actively bleeding, groggy, gradually regaining consciousness. The Court hears the officers say to the accused, “You have some warrants, you got arrested”. The officers say to the accused “we will sit you up”.Officers were observed then assisting the accused to sit up. He was still on the floor. The officers asked, “you ok?”. The accused responds “Yeah”.

[19] At this point in time, officer Fischer places a call for EMS. Officer Fischer testifies that once again “he started belligerent behaviour”. Officer Fischer tells the Court “I thought we need to get him out of the house”. The situation is escalating by the second and officer Fischer’s partner is dealing with a highly verbal, upset female, the sister of the accused. Officer Fischer tells the Court that this is “now a bad situation”. The removal of the accused from the floor of the basement residence up the narrow stairs to the rear exit door of the residence is filmed on the officer’s body worn camera, Exhibit 1. It is clear from the events recorded on the body worn camera that the situation has escalated. The accused has an active bleeding wound on his head. The accused is told to stop kicking by the officers. There is a violent struggle between police and the accused on the stairs. The accused spits at Officer Fischer’s partner, as the two officers’ endeavor to physically haul the accused up the stairs in order to get him out of the residence.

[20] Officer Fischer tells the Court that mid-way through this attempt to extricate the accused from the basement landing up the stairs he realizes that he will need additional help from other officers as his partner is diverted to deal with the female in the basement. The accused asked the officer “what do you want from me”. The accused yelled at the officer “get off me”. The accused is highly agitated. As officer Fischer drags the accused up the stairs the other police officers arrive, Cst. Leroux and then Cst. Lee. The body worn camera depicts the police dragging the accused by his feet across the landing doorway into the outside area. His head strikes the sill of the doorway and the accused cries out in pain. Once the two police officers, officer Fischer and officer Lee drag the accused across the doorway of the residence to the outside they stand him up. The accused spat at officer Fischer. The officer explained that the accused spat directly on his face and mouth area. [Emphasis by PJM]

[22] Officer Fischer tells the Court that EMS personnel “cleared” the accused once he arrived outside the residence. There is no evidence as to the nature of the examination conducted by medical personnel once the accused was extricated from the residence.

[24] Officer Trim, the second Crown witness testified that the physical takedown of the accused to the ground was necessitated because the accused tensed and rotated to the left with his free arm moving in towards the officer’s partner. The Court has watched the body worn camera as the officer testified about his perception that the accused was moving his left arm towards the officer’s partner. The Court cannot see the manner of movement of the accused’s left arm, as described by officer Fischer or by officer Trim. [Emphasis by PJM]

[25] The body worn camera discloses an instantaneous act by police of taking the accused to the ground during the process of handcuffing. It does not appear to the Court that the accused raised his arm toward either officer. [Emphasis by PJM]

[26] Officer Trim who is a senior officer with Calgary Police has eighteen- and one-half years on the force. Officer Trim testifies that when the accused had one handcuff placed on him it “appeared that he tried to pull away”. Officer Trim testifies that he reached in towards the accused to grab his hand. A he did so the accused was forcefully taken down to the ground by officer Fischer. Officer Trim agrees that the accused hit his head. Officer Trim testified that he participated in endeavouring to pull the accused out of the basement, up the stairs and out the back door. There is a violent physical struggle as the accused is pulled up the stairs. There is no question that during the physical struggle to get the accused up the stairs that the accused is highly agitated and that he spit at officer Trim’s face. Officer Trim testifies that he felt the accused saliva hit the whole side of his face whereupon he punched the accused in the face. Understandably the officer was concerned about the transmission of disease as he was not wearing any protective face gear at the time of the spitting by the accused. The officer was required to go for extensive lab testing every six weeks for a period of time to ensure there had been no transmission of disease in the saliva of the accused.

[27] Officer Trim explains that there were extenuating factors in the arrest of the accused. The arrest occurred in close quarters. The officers were also dealing with a female, the sister of the accused who was obviously upset. Officer Trim, like officer Fischer testified that he perceived he did not have control of the accused during the process of handcuffing him. He perceived that the accused was pulling away which required police to revert to use of force “to gain control”.

[28] …The issue is whether the officers used proportionate force necessary in the circumstances to effect the arrest as is required by section 25 of the Criminal Code of Canada. The guiding case with respect to the scope of the police officers’ powers during the course of arrest is R v Nasogaluak, 2010 SCC 6. While police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, “the degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness” Nasogaluak, supre, at paragraphs 32-34.

[29] …The Court agrees that the use of force does allow the officers a degree of discretion and the Court must not judge the officers’ actions against a standard of perfection. The Court agrees that a range of responses may be reasonable when officers effect the power of arrest. It is equally important that the Court recognize the inherently dangerous nature of police work and the emergent circumstances that arise which require police officers to make instantaneous decisions. An officer’s actions are not to be judged by the Court with the benefit of hindsight. The Court agrees that, provided the officer acted reasonably given the known circumstances, the officer may be entitled to latitude with respect to the amount of force applied during the course of arrest. The Court cannot characterize the actions of a police officer with exactitude. Rather the Court must examine the use of force in the context of the surrounding circumstances and the knowledge of the officers at the time, to determine if the force applied was proportionate to the risk presented, and ultimately reasonable.

[30] …The Court cannot see resistance by the accused which would justify the taking the accused to the ground in the manner that was undertaken in this case. The Court agrees with Defence submissions that the police appear to have overreacted to what could objectively be described as “very mild resistance to the second handcuff being placed on (the accused)” (Defence Brief paragraph 9). The Court concludes that the take down of the accused in the constrained physical environment of the basement landing involved an application of excessive force which was disproportionate to the risk objectively presented by the accused in the process of being handcuffed.

[31] In the Courts view the use of excessive force does not end after the accused is taken down to the ground. He loses consciousness. The officers wait for him regain some level of consciousness and then begin to physically haul him up the stairs from the basement to the landing by dragging him while he is injured and actively bleeding. The dragging of the accused prone body across the doorway of the house was objectively unreasonable. It is clear that the accused is injured by the take down, bleeding profusely, and only barely conscious….

…The applicant has established on a balance of probability, excessive use of force by police, not protected by section 25 of the Criminal Code. The excessive force interfered with the physical and psychological integrity of the body of the accused. The Applicant proves a breach of section 7 of the Charter.

I. Overview

[1] Malin Nyhus (Appellant) appeals his conviction by the Honourable Justice Andreassen (Trial Justice) for child abduction in contravention of a Parenting Order under s 282 of the Criminal Code.

[2] The trial proceeded in the Alberta Court of Justice on May 6, 2022. The Trial Justice convicted the Appellant of parental child abduction with reasons delivered on August 24, 2022. The Appellant was sentenced to a 3-month suspended sentence, which was fully served as of November 2022.

[3] The allegations related to a 3-day period where the Appellant failed to return his son (C) to the mother (M), in accordance with a Parenting Order delivered by Justice Lema on December 23, 2021 (Parenting Order). The Parenting Order was outlined in a written endorsement (Nyhus v Chambers, 2021 ABQB 1025 (Judgment)) that was filed on December 23, 2021. Several elements of the offence were admitted in an Agreed Statement of Facts (ASF). The Crown’s case included only the ASF and the Judgment, which were admitted as exhibits by consent. No viva voce or other evidence was tendered by Crown or Defence.

[4] The issue was whether the Crown had proven beyond a reasonable doubt that the Appellant had the requisite mens rea, specifically, whether the Appellant had actual knowledge that he was in breach of the Parenting Order with the intention of depriving M of the child. The Trial Justice inquired as to the appropriate use that could be made of the information contained in the Judgment. No authorities were provided to the Trial Justice on the question raised.

III. Brief Conclusion

[6] The appeal is allowed. The Trial Justice improperly relied on parts of Justice Lema’s findings of fact and reasoning in the Judgment that had a bearing on the mens rea of the charged offence. This amounted to an error of law. Justice Lema’s findings arose in the family law context on the civil standard of proof. Relying on those findings to convict a person of an offence beyond a reasonable doubt contravenes procedural fairness and evidentiary rules.

VI. The Trial Justice’s Decision

[16] Citing R v Muirhead, 2008 PESCAD 5 and R v McDougall (1990), 62 CCC (3d) 174 (Ont CA), the Trial Justice found that the ASF proved all elements of the offence except the following:

1) That the accused must know that there is an existing custody order made by a Canadian court. It may be that he must also know that his detention of the child is in violation of that order; and,

2) That the child’s detention must have been done with an intent to deprive the mother of possession of the child.

[17] The Trial Justice then concluded, with no objections raised by counsel that the background as recited by Justice Lema, the portions of the Appellant’s Affidavit, as quoted in the Judgment, and the Parenting Order itself, form part of the evidentiary basis of the Crown’s case. Specifically, the Trial Justice found that he could consider as evidence the background, findings of fact, excerpts of the sworn Affidavit, conclusions, and terms of the Parenting Order as contained in paras 28 – 34 of the Judgment. The Trial Justice was clear that Justice Lema’s reasoning is not evidence and that he was free to agree, disagree, or ignore it. [18] The Trial Justice concluded that there was no direct evidence that the Appellant was aware of the Parenting Order. However, the element of knowledge could be satisfied either by inferring knowledge through circumstantial evidence, or by a finding that the Appellant was willfully blind to the Parenting Order. The Trial Justice concluded that the circumstantial evidence did not prove the Appellant’s knowledge beyond a reasonable doubt. However, the only reasonable inference available from the evidence was that by disappearing for several days without having learned of the Parenting Order, the Appellant chose not to make himself available to receive notification from his lawyer or ask his lawyer whether a decision had been issued. This was sufficient to support a finding that the Appellant was willfully blind to the Parenting Order, thus satisfying the mens rea for parental child abduction.

2) The Trial Justice did err by relying on certain other facts contained in the Judgment

[42] The Trial Justice erred in relying on inadmissible facts contained in the Judgment. The Trial Justice made several direct references and drew conclusions that bear directly upon the mens rea of the offence based on inadmissible facts from the Judgement and Parenting Order. The Trial Justice’s description of the factual background of the case, reasoning, and conclusions relied partly on information contained in the Judgment that went beyond the permissible use of a civil judgment in a criminal trial. Certain key facts set out in the Judgment not included in the ASF were accepted as having been proven beyond a reasonable doubt in the Appellant’s criminal trial.

[43] The inadmissible facts included in the Judgment and Parenting Order included the history of the family law proceedings between the Appellant and M, reproductions of prior judgments made by Justice Lema in relation to the proceedings between the Appellant and M, contents of emails from the Appellant’s counsel and M’s counsel, a reproduction of portions of the Appellant’s Affidavit submitted in the Stay Application, excerpts from the written arguments provided by counsel for both the Appellant and M, and Justice Lema’s reasons for dismissing the Appellant’s Stay Application.

[44] The Trial Justice incorrectly relied on the following facts from the Judgment:

• The Appellant knew that Justice Lema treated M’s application to return primary parenting to her as sufficiently urgent, such that it was dealt with in Regular Chamber rather than Special Family Chambers, which would have happened some distance off in the future.
• There was an acrimonious current court proceeding where the issue was whether to stay an order with which the Appellant had very recently chosen not to comply.
• The Appellant’s family lawyer explained the Judgment and Parenting Order to him before the Appellant decided on December 19, 2021, not to obey it.
• The materials and argument with respect to the Stay Application were submitted on December 21, 2021.
• Justice Lema gave no indication as to when he would render a decision.
• Justice Lema had been treating the parenting issue as urgent since November 2021. The Appellant knew that Justice Lema was giving the matter his urgent attention, especially after he agreed to hear the Stay Application under tight timelines. The Appellant’s family lawyer would have been aware of Justice Lema’s disapproval with the Appellant having taken primary parenting in May, the deadline to return C on December 19, 2021, the tight deadlines to provide materials in support of the Stay Application, and the holiday period which would have been starting the day after the Judgment was filed.
• The Appellant’s family lawyer had shown that he prioritized this file by sending an agent to court in November, and again, by preparing affidavit and argument on the Stay Application within a day.

[45] The Trial Justice also accepted as proven facts hearsay portions of the Appellant’s Affidavit as described in the Judgment. Specifically, that the Appellant decided to disobey the December 16, 2021 Order after receiving specific advice from police, C’s reaction to overhearing that he would be taken to M’s, that M’s stepfather had physically disciplined C and, during a conversation between C and M’s stepfather, M’s stepfather used profanity and threatened the Appellant.

[46] The Trial Justice recognized the hearsay nature of this evidence but determined that because the parties consented to the evidence being considered, he did not have to address the hearsay issue. This was an error of law. Counsel consented to the consideration of the Appellant’s Affidavit as reproduced in the Judgment, but not to any exception to the hearsay rule. Hearsay evidence may only be admitted if it is necessary and reliable: R v Khan, [1990] 2 SCR 531 at 540 – 42; R v Starr, 2000 SCC 40 [Starr] at para 213. Once hearsay evidence is found to be admissible, it still must be weighed to determine the ultimate reliability of the evidence: Starr at para 217. Other than a brief statement of the effect of hearsay, the Trial Justice did not address how the information met the burden of proof on the criminal standard, given that the evidence on the Stay Application was in relation to a family proceeding, tendered through affidavits without the benefit of viva voce evidence and cross-examination, and subject to a lower standard of proof. [Emphasis by PJM]

[47] The Trial Justice also erred in using representations from counsel as described in the Judgment. Specifically, the Judgment describes that the Appellant decided to disobey the Parenting Order. These representations by counsel are not evidence; they constitute hearsay, are unsworn, and are untested in cross-examination. Further, the ASF differs from this representation of counsel. The ASF states that the Appellant did not return C by the December 19, 2021, deadline and instead made an application for a stay of the Parenting Order because C made concerning comments. [Emphasis by PJM]

[49] It is unfortunate that counsel led the Trial Justice astray. However, I agree with Appellant’s submission that despite the consent by counsel that the Court could rely on information contained in the Judgment as evidence, the Court should not take this as having the same effect as a formal factual admission under s 655 of the Criminal Code. Despite the consent of counsel, issues of the admissibility and the evidentiary effect of the Judgment are legal questions over which the Trial Justice had the ultimate responsibility as gatekeeper. [Emphasis by PJM]

[50] In R v RAH, 2017 PECA 5, trial defence counsel consented to the admission of two video recorded statements under s 715.1 of the Criminal Code. The trial judge admitted the videos without further consideration, which was found to be an error on appeal. The Appeal Court explained that an admission that the requirements of s 715.1 of the Criminal Code were met is not an admission of fact, but only counsel’s opinion: para 52. Counsel’s opinion cannot usurp a trial judge’s duty to ensure that the admissibility requirements are met before admitting evidence. The Trial Judge, not counsel, must be satisfied that the conditions are met: para 53.

X. Conclusion

[51] The Trial Justice erred by accepting the joint submissions of counsel that he could rely on supplementary background information contained in the Judgment that extended beyond the procedural history of the family law proceedings.

[52] The Trial Justice further erred by accepting the information contained in the Judgment as having been proven beyond a reasonable doubt without engaging in the necessary analysis. The admissibility of a prior judicial decision in a criminal trial does not automatically lead to the acceptance of the information or findings contained in the decision without the usual evidentiary rigors required to meet the burden of proof beyond a reasonable doubt on all elements of the alleged offence. The Trial Justice did not turn his mind to whether the information contained in the Judgment met the necessary evidentiary safeguards required in a criminal trial. The failure to conduct an analysis of the credibility, reliability, and evidentiary weakness of the findings of fact in the Judgment was an error of law. The Trial Justice’s use of such information amounts to a breach of procedural fairness as it was relied upon without the benefit of viva voce evidence and cross-examination such that the credibility and reliability of the information could be properly tested. [Emphasis by PJM]

[53] With respect to the other evidence in the Judgment cited by the Crown in its argument, it was entirely within the Crown’s control to introduce supplementary evidence through different avenues, such as transcripts of the oral hearing on November 25, 2021, or viva voce evidence from M, M’s family lawyer, the police, or the Appellant’s family lawyer.

XI. Remedy

[54] The appeal is allowed, the Appellant’s conviction is quashed, and an acquittal is entered.