R. v. Milino

R. v. Milino

The trial judge correctly held the warrantless apprehension under s.28 of the Mental Health Act was unlawful because the officers did not have the statutorily required satisfaction that the respondent was an 'apparently a person with a mental disorder' acting in a manner likely to endanger herself or others and...

Source-derived case information.

Citation
2009 BCSC 1802
Parties
Crown/appellant: Regina; Accused/respondent: Kelly Lee Milino
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
29 December 2009
Procedural Posture
Criminal Appeal / Crown Appeal From Provincial Court to Supreme Court of British Columbia (judgment on Appeal)
Outcome
Crown's appeal dismissed; acquittals upheld
Legal Topics
Warrantless Entry, Mental Health Act S.28 Apprehension, Exigent Circumstances, Assault on a Peace Officer, Reasonable and Probable Grounds, Search and Seizure, Duty to Protect Life
Source Language
english
Criminal Law Mental Health Law Constitutional Law Warrantless Entry Mental Health Act S.28 Apprehension Exigent Circumstances Assault on a Peace Officer Reasonable and Probable Grounds +2 more

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Summary, issues, holding and outcome

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Parties

Regina

Crown/appellant

Kelly Lee Milino

Accused/respondent

Procedural Posture

Criminal Appeal / Crown Appeal From Provincial Court to Supreme Court of British Columbia (judgment on Appeal)

Legal Issues

  1. 1 Whether the warrantless apprehension under s.28 of the Mental Health Act was lawful
  2. 2 Whether the officers were 'satisfied' a person was a 'person with a mental disorder' as defined in the Act
  3. 3 Whether exigent circumstances or common law power to enter justified entry and continued presence in the dwelling

Ratio Decidendi

The trial judge correctly held the warrantless apprehension under s.28 of the Mental Health Act was unlawful because the officers did not have the statutorily required satisfaction that the respondent was an 'apparently a person with a mental disorder' acting in a manner likely to endanger herself or others and exigent circumstances had ceased; therefore the respondent was not in lawful custody and the escape and assault charges could not be sustained.

Court Disposition

Crown's appeal dismissed; acquittals upheld

Orders

  • Crown's appeal dismissed
  • Acquittals of the respondent on charges of unlawful escape from lawful custody (Criminal Code s.145(1)(a)) and assaulting a peace officer (Criminal Code s.270(1)) upheld