Officer had no lawful authority to enter unit and lacked consent from accused

Ontario criminal | Appeal

GROUNDS

Officer had no lawful authority to enter unit and lacked consent from accused

Appeal by accused from his conviction for assaulting police officer in execution of his duty. Investigating officer and second officer attended at accused’s condominium unit in response to noise complaint. Accused identified himself as owner of unit but he refused to give his name to investigating officer. Investigating officer and second officer entered into private residence and investigating officer refused to leave when accused asked him to do so. Investigating officer’s admitted purpose was to investigate completed offence of mischief and not to make arrest. Investigating officer was not going to leave residence until he completed investigation, which required him to obtain accused’s name, and he acted as he did in spite of clear lack of consent from accused. Accused was arrested after he pushed investigating officer in chest. Accused was originally charged with mischief in addition to assault charge but it decided not to pursue mischief charge. Appeal allowed. Conviction was set aside and accused was acquitted. Investigating officer had no lawful authority to enter unit and he lacked consent from accused. In addition, he could not bring himself within any of exceptions to sanctity of home principle. Investigating officer was trespasser and Crown could not prove that he acted in execution of his duty. Trial judge failed to analyze case in this manner because she made three significant errors and these errors caused her to erroneously conclude that investigating officer acted lawfully and in execution of his duty.
R. v. Zargar (Mar. 5, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-0000065-00AP) 112 W.C.B. (2d) 112.

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