Ontario Criminal


Assault

ASSAULTING PEACE OFFICER
Accused’s minimal resistance to unlawful arrest not unreasonable

Accused was arrested following search which resulted in him being charged with possession of cocaine. Accused’s response to his arrest led to further charge of assaulting two police officers with intent to resist his lawful arrest. Words he is said to have uttered during subsequent strip-search at police station resulted in third charge, that of uttering threat to cause death. Accused applied to exclude evidence. Police initiated pat-down search of accused based on complaint that there were “druggies” in the building. Arrest not lawful, accused not guilty of assault to resist arrest, evidence of seized cocaine and accused’s allegedly threatening utterances ordered excluded, all charges dismissed. Accused’s minimal resistance to that unlawful arrest, as described by officers, was not so disproportionate to be unreasonable. There was no basis for charge, as particularized, of assaulting both named officers “with intent to resist the lawful arrest of himself”. Simply put there was no “lawful arrest” to which accused resisted.

R. v. Jarrett

(Nov. 18, 2011, Ont. C.J., Green J.) 98 W.C.B. (2d) 589 (18 pp.).

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