Unlawful Arrest

R. v. Barrow, 2011 ONCJ 239 (CanLII)

[2] The incident giving rise to both charges took place at a women’s shelter. Ms. Barrow was not a resident of the shelter and her presence was not welcome there. As a result, the police were called to intervene. The lone office who arrived on the scene found the defendant in the midst of eating breakfast. When the officer was unable to persuade Ms. Borrow to leave the premises immediately, she attempted to take physical control of the defendant without formally arresting her.

[3] The defendant was not compliant and resisted the officer’s attempt to take physical control over her. In the ensuing struggle, the defendant reached for the officer’s firearm. The firearm was loaded. The defendant had her hand on the firearm for a very short period of time before the officer successfully pried Ms. Barrow’s hand away. The gun never left the officer’s holster. With the assistance of staff members, the defendant was arrested for attempting to disarm the officer but not without incident. The defendant was verbally abusive and physically resistive. The defendant was never charged with trespassing.

[34] I find that the defendant used excessive force and took unreasonable and dangerous measures in resisting the officer’s assault on her. From the moment she formed the intention to reach for the officer’s weapon and acted upon it, the officer was under a legal obligation to respond to preserve the peace and prevent a potentially lethal offence. Any suspension of the officer’s execution of lawful authority was in effect “lifted”. In the circumstances, I therefore find that the defendant’s conduct having endangered not only the officer’s safety, but that of the residents and staff at the shelter, went well beyond an assault simpliciter on the officer. I am satisfied beyond a reasonable doubt that the offence of attempt to disarm a police officer is made out.

[35] With respect to the charge of assault resisting arrest, I found the defendant not guilty on the basis that she was entitled to resist an unlawful arrest. In this regard, I, regrettably, focused too narrowly on the defendant’s resistance prior to reaching for the firearm. A closer and more considered review of the evidence in fact supports a finding of guilt based on Ms. Barrow’s conduct following what I found to be her lawful arrest on the charge of attempting to disarm a police officer. In addition to forcefully resisting the officer at the shelter Ms. Barrow continued to resist arrest while in the scout car. She also spat on officer Davydova at the station. In the circumstances, a finding of guilt on that count should have been the proper result.