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www.1law1.com 2011/08/22 Article
"Judge dismisses assault charge"


By Kenneth W. Golish

Justice Lucy C. Glenn of the Ontario Court of Justice dismissed a charge of assaulting a peace officer in a Chatham court today.  The defendant was charged with that offence in March, 2010.

After receiving a complaint about an overturned table and candlesticks damaged, police attended the nearby apartment unit of the defendant.  Defence counsel Kenneth Golish argued the defendant did not assault the two police officers who arrested him, that in fact, the officers assaulted the defendant.  Police claimed the arrest took place outside the apartment unit, but the defendant and his mother testified he was pulled from inside his residence.  The judge accepted this evidence and rejected the prosecutor's argument that the police were there by invitation, the invitation arising from the defendant calling the police to make his own complaint about an assault.  Absent emergency circumstances, the police may not arrest an individual in a residence without a warrant:  The arrest being illegal, there could not have been as assault.  The trial judge did not comment on the point, but defence counsel noted that the authority of the police to arrest an individual in a residence did not depend on the lawfulness of their presence.  The authority should not be confused with the plain view doctrine that permits the police to act upon evidence in plain view, as long as their presence is lawful.

The judge then found the defendant guilty of mischief, but Kenneth Golish advised the court he would be asking for a stay of the charge and the case was adjourned to a later date.


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