RCMP officers had no legal authority to enter man's home, make arrest: B.C. court

Handcuffs are pictured above in this file photo.

A B.C. man has been found not guilty of assaulting two RCMP officers – with the court finding he was resisting an "unlawful entry and arrest" in his home before he was tasered, taken down and hauled away in handcuffs.

The decision in the case was handed down in provincial court on April 3 and posted online Thursday.

"This case raises a number of issues related to the lawfulness of arrest of a person in a dwelling house," Judge Harbans Dhillon wrote.

The court heard that Gerald Gladue was charged with assaulting Const. Hutchins and Const. Craig Abraham in his Burnaby basement suite in August of 2021. There was no dispute that Gladue resisted the arrest, in part, by biting an officer's thumb while police were attempting to cuff him.

"Police sustained minor but painful injuries, and Mr. Gladue sustained two episodes of electric shock incapacitation and blows to his body on being subdued for purposes of arrest," the decision says.

The judge explained that to convict someone of assaulting a peace officer, the Crown must prove that "at the time of the alleged assault, that peace officer was in the execution of his or her duty."

Gladue's lawyer argued that this could not be proven in this case.

"The defence position is that police officers were not acting in the lawful execution of their duties when they entered the residence without a warrant, and the accused was entitled to resist in the manner in which he did," the decision says.

"The law is well settled that a police officer unlawfully on premises is not acting in the course of their duty and a person lawfully in possession may resist the trespass," the judge also explained.

The court heard that on the day of the alleged assault, officers were responding to a report of uttering threats. Gladue was the suspect, accused of having threatened his roommate who police found outside, sitting on the curb "several hundred feet away" from the home when they arrived on the scene.

After speaking with the alleged victim, police approached the home where they found a man who was in his underwear, according to the decision.

"Mr. Gladue left the door of his residence open, with police standing at the threshold. Police did not seek Mr. Gladue’s consent to enter and Mr. Gladue did not expressly and voluntarily invite the police into the unit," it continues.

The judge noted that not only did the police not have Gladue's permission, they also did not have a warrant.

"The prohibition against a warrantless entry into a dwelling house to arrest a person in their home protects the liberty, privacy and security interests of residents to be secure in their homes against state intrusion," the court heard.

Police can – in certain cases – enter people's homes with neither a warrant nor permission.

However, those circumstances were not present in this case. There was no imminent risk to anyone's safety – including the officers', no concern that Gladue would attempt to destroy evidence, and no "hot pursuit" into the home. In addition, the judge rejected the Crown's argument that Gladue's roommate gave or was in a position to give the legally required permission.

"The officers in this case engaged in an unlawful, warrantless entry into a dwelling house in which Mr. Gladue was present and the entry was for the purpose of arresting him. Mr. Gladue resisted the unlawful entry and arrest. In the result, the Crown has failed to prove an essential element of the offence of assaulting a peace officer in the execution of his duty," the judge concluded.

"I find Mr. Gladue not guilty."

The decision also says that while Gladue was charged with uttering threats, those charges were stayed.