



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zarama, 2015 ONCA 860

DATE: 20151208

DOCKET: C59115

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Catalina Zarama

Appellant

Bruce Simpson, for the appellant

Phillippe Cowle, for the respondent

Heard: December 3, 2015

On appeal from the convictions entered on April 30, 2014
    by Justice Diane M. Lahaie of the Ontario Court of Justice.

ENDORSEMENT

[1]

Two police officers responded to a 911 call in the middle of the night. The
    appellant made the call but it had been disconnected before she said anything.

[2]

The officers went to the home from which the call had been placed. It
    was the appellants parents home. The parents invited the officers in and
    explained that the call had probably been placed by the appellant, who lived
    with them and suffered from mental health challenges. They indicated that she
    had not been taking her medication. The officers indicated that they needed to
    speak with the appellant to determine why she had called and if she needed
    help. The appellant was in her bedroom, yelling, and would not open her locked
    bedroom door.

[3]

The appellants mother picked the lock on the bedroom door. When the
    officers stepped into the bedroom they saw the appellant lying on her bed,
    holding a serrated kitchen knife. She got up and walked toward the officers,
    yelling You want this? You want this?

[4]

The officers drew their guns and yelled at the appellant to drop the knife.
    When the appellant moved towards her mother and one of the officers, that officer
    dove at the appellant (and her mother who was standing between the appellant
    and the officer) to take the knife away. While he attempted to wrestle the
    knife from the appellant, she resisted and cut his lip and scratched the back
    of his ear and neck.

[5]

The appellant was convicted of a number of assault offences, but was
    later found to be not criminally responsible. She appeals against the findings
    of guilt only.

[6]

The foundation for the appeal is the appellants submission that the
    officers were trespassing when they entered her bedroom and, consequently, she
    was justified in repelling them.

[7]

We reject this submission.

[8]

In our view, the police officers were acting reasonably, and within the
    scope of their duties, in responding to a disconnected 911 call.  Therefore,
    they were never trespassing.

[9]

The officers were entitled to assume that the appellant, as the maker of
    the 911 call, was in distress.  They were also entitled to physically locate
    the appellant within the home so that they could determine her reasons for
    making the call and provide such assistance as might be required.  This is so
    despite the assurances of the appellants parents that she was not in need of
    aid.  Consequently, as the appellant refused to leave her bedroom, the officers
    had the right to enter it because there was no other reasonable alternative for
    ensuring that she would receive any needed assistance in a timely manner.  See
R.
    v. Godoy
,
[1999] 1 S.C.R. 311, 1999 CanLII 709, at paras. 16-18, 19.

[10]

The
    trial judges findings with respect to what transpired in the bedroom,
    including the struggle, are well-founded in the evidence. In any event, the
    appellants use of force cannot be said to have been reasonable, in the
    circumstances of this case.

[11]

These
    determinations are dispositive of the substance of the appeal, apart from two
    remaining matters.

[12]

First,
    the Crown asks that this court amend count #1 of the indictment, pursuant to s.
    683(1)(g) of the
Criminal Code
, R.S.C. 1985, c. C-46, to particularize
    the use of a weapon as part of the aggravated assault charge, in order to
    regularize the conviction on the included offence of assault with a weapon. Counsel
    for the appellant conceded that no prejudice will ensue from the amendment.

[13]

We
    would make the requested order and amend the charge in the manner sought by the
    Crown.  Consequently, the amended charge would read as follows:

On or about the 5
th
day of May in the year 2010 at
    the City of Ottawa in the East/De LEst Region did, in committing an assault on
    Cst. Earl COOK, wound, maim, disfigure, or endanger the life of the said Cst.
    Earl COOK by using a weapon, namely a knife, and thereby commit an aggravated
    assault, contrary to section 268, subsection (2) of the Criminal Code of Canada
.

[14]

Second,
    we are satisfied that pursuant to s. 270(2) of the
Criminal Code
, in
    light of the conviction on count #1, the conviction on count #2  assault of Cst.
    Cook with intent to resist or prevent lawful arrest or detention  should be stayed
    in accordance with the
Kienapple

principle.

[15]

Accordingly,
    the amendment to count #1 is ordered, in accordance with the foregoing, and the
    appeal is allowed in one respect only, namely, count #2 is stayed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

David
    Watt J.A.


