R. v. Campbell, 2012 ABQB 466

Court of Queen ’ s Bench of Alberta Citation: R. v. Campbell, 2012 ABQB 466 Date: 20120719 Docket: 100695279S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Steve Charles Campbell Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G. Park _______________________________________________________ Appeal from the Conviction by The Honourable Judge Redman Convicted on the 27 th day of July, 2011 (Docket: 100695279P1) Facts [ 1 ] The Appellant (Campbell) appealed his assault conviction under s. 266 of the Criminal Code .

It arose after the trial judge found him not guilty of assault causing bodily harm under s. 267 (

b) of the Criminal Code based upon the Crown’s concession the trial evidence disclosed no bodily harm or bodily injuries occurred to the complainant (Guthrie).

[ 2 ] On the night of May 28, 2008 Guthrie crashed his motor vehicle into a parked motor vehicle in the northwest area of the City of Calgary in the Province of Alberta. When the arresting officer (Krezanoski) arrived on the accident scene she found him to be “very impaired”. Guthrie exhibited bloodshot and glassy eyes, slurred speech, clumsy hand gestures and the smell of alcohol on his breath. He could not walk a straight line and admitted he had “too much” to drink. He was arrested for impaired operation of a motor vehicle.

Krezanoski took him to a Calgary Police Service district office breathalyzer room where he met Campbell. Campbell, as an accredited breathalyzer technician, had begun preparing the breathalyzer instrument in order to accept breath samples from Guthrie. [ 3 ] The breathalyzer instrument sat on a desk with Campbell standing on one side of the desk. Guthrie took a standing position on the opposite side of the desk.

The third side of the desk to Campbell’s left abutted a wall while the fourth side to Campbell’s right allowed free passage for a person to walk from Campbell’s position to Guthrie’s position. [ 4 ] Campbell explained the procedure that was to be followed in giving a breath sample into a breathalyzer instrument to Guthrie. Campbell specifically told Guthrie not to touch the breathalyzer instrument and to keep his hands by his side.

Campbell then entered some further data into the breathalyzer instrument and while the breathalyzer instrument was self-calibrating, Campbell saw Guthrie reach out with his right hand and grab onto the exhaust tube located on the back of the breathalyzer instrument. [ 5 ] In response to Guthrie not following directions, and touching the breathalyzer instrument, Campbell shouted at Guthrie and told him “let go of the exhaust tube”. Guthrie immediately released the exhaust tube. Campbell told Guthrie that he could not touch the breathalyzer instrument. Guthrie responded by stating that he had not touched it.

Campbell thought it strange that Guthrie would lie about touching it when he clearly had done so in front of Campbell. Campbell again told Guthrie to keep his hands by his side and not to touch the breathalyzer instrument. Campbell further told Guthrie that if he continued to touch the breathalyzer instrument he could be charged with obstruction, a criminal offence, or if he damaged the breathalyzer instrument he could be charged with mischief to property, a criminal offence. [ 6 ] Campbell next readied the breathalyzer instrument to accept a breath sample from Guthrie.

A new mouth piece was placed on the end of the breath tube. Guthrie was asked to step forward to his edge of the desk. Campbell again provided Guthrie with instructions to keep his hands at his sides and not to touch the breathalyzer instrument. Campbell raised the breath tube towards Guthrie. However, Guthrie refused to follow the instructions and instead grasped the breath tube with his right hand above the location where Campbell was holding it.

Guthrie pulled the breath tube out of Campbell’s hand and picked up one side of the breathalyzer instrument and raised it to an approximate height of 4 to 5 inches off the desk. These actions moved the breathalyzer instrument towards Campbell resulting in Guthrie’s fist being approximately 8 inches from Campbell’s face. [ 7 ] Campbell’s testimony indicated at this point he was not certain of Guthrie’s actions relating to the breathalyzer instrument.

This uncertainty revolved around 3 possible scenarios in Campbell’s mind: 1) Whether the breathalyzer instrument would be pulled back toward Guthrie and off the desk. 2) Whether the breathalyzer instrument would be pushed forward toward Campbell. 3) Whether the breath tube would be dislodged from the breathalyzer instrument. [ 8 ] In each of the 3 scenarios Campbell was concerned of possible damage to what he believed was a fragile breathalyzer instrument. Consequently Campbell extended his right arm straight across the desk and his fist connected with Guthrie’s mouth.

According to Campbell his purpose was not to hurt Guthrie but to stun him in order to cause Guthrie to release his grip on the breathalyzer instrument and have it returned to the desk top. Campbell’s testimony revealed it was not a forceful blow in that neither his body or shoulder turned towards Guthrie. Krezanoski, who was present, noted the punch was not hard as it was quick and straight and without any wind up by Campbell. She observed Guthrie’s head was not moved much by the force of the punch. She indicated Guthrie did not react to the punch as if hurt.

Indeed Guthrie suffered no injury. [ 9 ] Campbell advised in testimony that due to having only a split second to respond to Guthrie’s actions in grabbing the breathalyzer instrument and grasping the breath tube, his response was to strike Guthrie rather than grabbing the breathalyzer instrument or pulling the breath tube out of Guthrie’s hands. Campbell believed the latter actions would involve a possible wrestling match over the breathalyzer instrument. A wrestling match could cause damage to the breathalyzer instrument.

Campbell indicated he could not reach Guthrie to gain control over him due to the presence of the desk between them. Finally Campbell testified his prior police training

instructed him to use stun techniques in any instance where a person was holding onto an object and not complying with policeinstruction. [10] After the punch Guthrie released the breath tube and his grip on the breathalyzer instrument and stepped back from the desk.Campbell proceeded around the desk and grasped Guthrie’s shoulder and arm in an effort to control Guthrie’s unpredictable actions.Campbell next placed his arm around Guthrie’s neck and pulled him into a seated position on the floor.

The purpose of this manoeuveraccording to Campbell was to gain further and better control of Guthrie in a seated position as opposed to a standing position. [11] While Guthrie was seated Campbell instructed him to keep his hands by his side and not to touch the breathalyzer instrumentwhile providing breath samples. Guthrie advised he understood and would not touch the breathalyzer instrument again. Guthrie wasallowed to return to a standing position. Campbell returned to the other side of the desk and after due preparation of the breathalyzerinstrument he received 2 breath samples 20 minutes apart from Guthrie.

The 2 breath samples provided blood alcohol readingsrespectively of 210 and 220 milligrams of alcohol in 100 millilitres of blood. [12] No initial complaint was made to the police by Guthrie. Rather the police contacted Guthrie. Standard of Review [13] Fish, J. in the unanimous judgment of the Supreme Court of Canada in R. v. Clark, 2005 SCC 2, at para. 9 stated in part: ...Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable.

The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well- Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377 (S.C.C.); Toneguzzo-Norvell (Guardian ad litem of) v. BurnabyHospital, (SCC), [1994] 1 S.C.R. 114 (S.C.C.); Schwartz v. R., (SCC), [1996] 1 S.C.R. 254 (S.C.C.);Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 (S.C.C.). [14] Errors of law are reviewed on a standard of correctness. See Housen v.

Nikolaisen, supra. [15] Errors of mixed fact and law are reviewed on a standard of “palpable and overriding error”. See Housen v. Nikolaisen, supra,at paras. 8-37. A palpable error is one that is plainly seen. Errors of mixed fact and law involve a trial judge applying a legal standard to aset of facts. See Canada (Director of Investigation and Research) v. Southam Inc., (1997) (SCC), 1 S.C.R. 748 atpara. 35. [16] In the case at bar Campbell argued the trial judge misapprehended the evidence and consequently committed palpable andoverriding errors.

An error based on a misapprehension of the evidence is succinctly described by Doherty, J. A. in delivering theOntario Court of Appeal decision in R. v. Morrissey (ON CA), 97 C.C.C. (3d) 193, at paras. 83, 84, 88 and 89 whereit was stated in part: 83... A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substanceof the evidence, or a failure to give proper effect to evidence.

Where, as in the case of Crown appeals from acquittals (s. 676(1)(a)) andappeals to the Supreme Court of Canada pursuant to s. 691, the court's jurisdiction is predicated on the existence of an error of law alone,characterization of the nature of the error arising out of the misapprehension of evidence becomes crucial. The jurisprudence from theSupreme Court of Canada demonstrates the difficulty in distinguishing between misapprehensions of the evidence which constitute an nom. R. v. B. (G.) (No. 3)) (1990), (SCC), 56 C.C.C. (3d) 181 [77 C.R. (3d) 370] (S.C.C.); R. v. Morin (1992), 1992

40 (SCC), 76 C.C.C. (3d) 193 [16 C.R. (4th) 291] (S.C.C.). The recent trend in that court suggest that most errors which fallunder the rubric of a misapprehension of evidence will not be regarded as involving a question of law: R. v. Morin, supra; J. Sopinka andS.M. Gelowitz, The Conduct of an Appeal (Markham: Butterworths, 1993), pp. 85-89. 84 The need, for jurisdictional purposes, to classify a misapprehension of the evidence as an error of law, as opposed to an error of fact ormixed fact and law, does not arise in this court where the appeal is from conviction in proceedings by way of indictment. Section 675(1)(

a) gives this court jurisdiction to consider grounds of appeal which allege any type of error in the trial proceedings. The wide sweep of s.675(

a) manifests Parliament's intention to provide virtually unobstructed access [FN3] to a first level of appellate review to thoseconvicted of indictable offences. 88 In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this courtshould first consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will beentered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned amiscarriage of justice (s. 686(1)(a)(iii)).

If the appellant is able to show that the error resulted in a miscarriage of justice, then theconviction must be quashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict wasunreasonable or that the error produced a miscarriage of justice, the court must consider the vexing question of whether themisapprehension of evidence amounted to an error in law (s. 686(1)(a)(ii)).

If the error is one of law, the onus will shift to the Crown todemonstrate that it did not result in a miscarriage of justice (s. 686(1)(b)(iii)). 89 In considering the reasonableness of the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review ofthe evidence adduced at trial: R. v. B. (R.H.), supra, at pp. 198-99 [CCC., p. 120 C.R.]. This court's authority to declare a convictionunreasonable or unsupported by the evidence does not depend upon the demonstration of any errors in the proceedings below. Theverdict is the error where s. 686(1 )(a)(

i) is properly invoked. A misapprehension of the evidence does not render a verdict unreasonable.Nor is a finding that the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable. In casestried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in an argument that theresulting verdict was unreasonable. An appellant will be in a much better position to demonstrate the unreasonableness of a verdict if theappellant can demonstrate that the trial judge misapprehended significant evidence: R. v.

B. (R.H.), supra, at p. 200 [C.C.C., p. 122C.R.]. [17] The references to s. 686(1)(a)(i), (ii), (iii) and s. 686(1)(b)(iii) in Morrissey are equally applied to

summary convictionappeals under s. 822(1) of the Criminal Code. Reasons [18] The trial judge indicated he had a great deal of difficulty accepting the evidence of Guthrie where it differed from theevidence of Campbell and Krezanoski. He provided explicit examples as to why he did not accept Guthrie’s evidence. [19] The trial judge accepted Campbell’s evidence. He found it was given in a straight-forward manner. As a result in accordancewith Campbell’s evidence he found Guthrie touched the breathalyzer instrument on 2 occasions.

He accepted Campbell warned Guthriethat he might be charged with obstruction or mischief after Guthrie touched the breathalyzer instrument on the first occasion. He foundGuthrie lifted a corner of the breathalyzer instrument off the desk. The trial judge accepted Campbell punched Guthrie once in the mouthand quickly moved around the desk and placed Guthrie into a take-down manoeuver. [20] Campbell argued the trial judge misapprehended the evidence and consequently erred in the

interpretation and application ofs. 25(1) of the Criminal Code. [21] The trial judge posed 3 questions to himself from the facts. In doing so he relied on a decision rendered by the Alberta Courtof Appeal in a civil cause of action based in assault, Crampton v. Walton, 2005 ABCA 81. The 3 questions were: 1. Was Constable Campbell required or authorized by law to perform an action in the administration or enforcement of the law?

2. Did Constable Campbell act on reasonable grounds in performing that action? 3.

Did Constable Campbell use reasonable force? [ 22 ] Answering the first question he found Campbell had a legal duty under the Criminal Code to take breath samples and as a result he was authorized to instruct and direct Guthrie in the process. [ 23 ] On the second question he established Campbell had reasonable grounds to administer a breath test as a result of Krezanoski’s reasonable and probable belief that Guthrie had committed the offence of impaired driving and Krezanoski’s resulting actions in arresting Guthrie and delivering him to Campbell, the qualified breath technician, for the purpose of Guthrie providing samples of his breath pursuant to s. 254(3) of the Criminal Code . [ 24 ] On the third question the trial judge decided while reasonable force could be used to convey Guthrie to appear before a breath technician, force could not be used to compel Guthrie to provide breath samples.

He correctly found that any force used to compel a provision of a breath sample is unnecessary. [ 25 ] Section 25(1) of the Criminal Code states: Protection of Persons Acting Under Authority 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or a public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. [ 26 ] In his analysis under s. 25(1) of the amount of force used by Campbell, he found Campbell used more force than necessary and that force was unreasonable and excessive.

From that finding and combined with the earlier finding that a breathalyzer technician cannot use force to compel a provision of a breath sample, the trial judge rejected s. 25(1) as providing a defence for Campbell. [ 27 ] While the trial judge was correct in his analysis that any force used to compel a breath sample is an unnecessary force, a force used to compel a breath sample was not a trial theory advanced by either the Crown or Campbell. Campbell in his defence had not argued he was using reasonable force to compel Guthrie to provide breath samples.

Rather Campbell’s argument under s. 25(1) was based on a duty to prevent Guthrie from damaging the breathalyzer instrument. [ 28 ] In my view a proper application of a s. 25(1) defence must entail a further analysis of Campbell’s requirement or legal authorization respecting his duties as a peace officer in administering breath tests to Guthrie. Not only was he authorized to engage in the process of obtaining breath samples from Guthrie, and not only was he acting on reasonable grounds in performing the breath tests, it must be recognized he had further legal requirements or duties.

One such duty required him to protect and preserve the integrity of the breathalyzer instrument, the property of the Calgary Police Service, from any damage or potential damage which could be inflicted upon it by Guthrie in the process of providing the breath samples. Finally Campbell, as a certified breathalyzer technician, had a further implicit requirement or duty under the Criminal Code to administer the breath tests such that Guthrie would be providing accurate and

proper breath samples. This extended duty requires Campbell to protect the integrity of the breathalyzer instrument from failure ordamage which could impact the accuracy and dependability of the breath samples.

Provision of accurate and dependable breath samplesis a duty owed to Guthrie and the proper administration of justice. [29] In reaching the finding Campbell used unreasonable, excessive and unnecessary force the trial judge observed once Guthriehad touched the breathalyzer instrument initially, it became objectively reasonable to anticipate Guthrie would touch it or may touch itagain. [30] Accordingly he determined that Campbell should have considered a response to any anticipated second touching of thebreathalyzer instrument.

In that sense, he did recognize Campbell’s warning to Guthrie that if Guthrie touched the breathalyzerinstrument a second time, Campbell could charge Guthrie with a Criminal Code offence (ie: mischief). [31] However the trial judge concluded Campbell’s response was a reaction borne out of frustration in which Campbell reflexivelypunched Guthrie. The trial judge went on to detail alternative actions which Campbell could have employed.

Such alternatives included asecond warning to Guthrie to release the hold on the breath tube; manual removal of Guthrie’s hand from the breath tube; holding thebreathalyzer instrument in place to avoid any risk or damage to it; finally, if a sudden application of force to Guthrie’s body wasnecessary (which the trial judge concluded was not necessary), such an application of force could have been directed to strike atGuthrie’s arm. In his final conclusion the trial judge in considering the proportionality of Campbell’s actions found the punch andsubsequent take down were grossly disproportionate.

He based this disproportionate application of force on his factual finding theevidence disclosed little or no harm could have reasonably been occasioned to the breathalyzer instrument. In turn it was determined theforce employed was more than necessary and consequently was unreasonable and excessive. [32] The trial judge correctly found Campbell acted on reasonable grounds in performing the breath test. However again in myview the trial judge did not proceed far enough in his analysis of that second question. The proper analysis requires reference to para. 43in the Crampton decision.

It states: 43 Because both the second and third branches of the s. 25(1) defence use the modified objective standard to review police conduct, thedemarcation between the two elements are sometimes blurred. To clarify, the second branch requires the court to determine whether thepolice acted on reasonable grounds in carrying out the action. The police could, for example, establish reasonable grounds for usingforce. The third branch focuses exclusively on the amount of force used.

Even if the police acted on reasonable grounds in executing thewarrant in an aggressive manner, they will be denied the protection of s. 25(1) if they used excessive force. [33] Accordingly an extended analysis of the second test must determine whether Campbell had reasonable grounds to use force toprotect the breathalyzer instrument from damage. While the trial judge found reasonable force could not be used to compel Guthrie toprovide a breath sample, he failed to determine whether Campbell had reasonable grounds to use force to protect the physical integrity ofthe breathalyzer instrument.

Protecting the physical integrity of the breathalyzer instrument would protect it from damage and wouldensure that it could provide Guthrie and the administration of justice with accurate and proper samples of his breath. [34] The trial judge instructed himself on the principles set out in R. v. W.(D.), (1991) (SCC), 1 S.C.R. 742 atpara. 28. He accepted the Appellant’s evidence respecting Guthrie’s actions in tugging on the exhaust tube, grasping the breath tube onone side lifting the breathalyzer instrument off the desk.

The trial judge further accepted Campbell’s evidence that he believed the fragilebreathalyzer instrument could be damaged. In the absence of any contrary evidence demonstrating the breathalyzer instrument was notfragile, it is my opinion Campbell’s belief was objectively reasonable in the circumstances. On the evidence Campbell establishedreasonable grounds to use force to protect the breathalyzer instrument from possible damage.

Although he did not specifically testify hewas protecting the integrity of the breathalyzer instrument in order to ensure accurate and proper breath samples it can be inferred that inprotecting the breathalyzer instrument from damage, such consequent protection would preserve the integrity of the breathalyzerinstrument in order to ensure accurate and proper breath samples and readings. [35] Both s. 25 and the decision in Crampton, supra, require a court to determine whether unnecessary force was used. [36] The trial judge found Campbell’s punch and subsequent take down was grossly disproportionate.

Initially it should beobserved that the force used was a “stun punch” for which no injury occurred. The subsequent take down was a wrestling hold by which

Guthrie was forced to a sitting position from which he shortly was released. The trial evidence of Campbell indicated the force was used to stun Guthrie in order to release Guthrie’s grip on the breathalyzer instrument and have it set back on the desk. In my opinion that evidence clearly denoted the force was applied to prevent damage to the breathalyzer instrument. [ 37 ] Using the modified objective standard as required under the third branch of a defence proffered under s. 25(1) the question must be asked: did Campbell believe the amount of force was required and was that belief objectively reasonable?

In this connection the Alberta Court of Appeal in Crampton , supra , set out a court must not use hindsight in order to determine whether a lesser amount of force or different force techniques could have been used. It must be recognized a police officer in the exigency of the moment cannot be expected to measure the precise amount of force the situation requires or cannot be expected to use the least amount of force to achieve the desired result.

Misjudgment by the officer as to the degree of necessary force will still allow the use of s. 25(1) as a defence if the officer acted reasonably. [ 38 ] Although the trial judge warned himself of the mistake in looking at Campbell’s use of force in hindsight, it is my view that is exactly what the trial judge did. In examining the amount of force used by Campbell the trial judge suggested after Campbell observed Guthrie touch the breathalyzer instrument on one occasion it became objectively reasonable to anticipate Guthrie would touch it again.

The trial judge believed Campbell should have anticipated a second touching and an appropriate response be considered. In using the lens of hindsight the trial judge stated: Constable Campbell testified that he did not consider any other alternative course of action, that he simply reacted out of reflex when he punched Mr. Guthrie in the mouth. When considering the proportionality of Constable Campbell’s actions I find that there was little or not (sic) harm that could have reasonably been occasioned to the Breathalyzer instrument and that punching Mr. Guthrie in the face was grossly disproportionate.

The subsequent take down was also grossly disproportionate. Constable Campbell could have verbally directed Mr. Guthrie to release his hold on the breath tube, an action which worked the first time. He could have manually removed Mr. Guthrie’s hand from the breath tube, or he could have held the Breathalyzer instrument in place so as to avoid any risk or damage to it. Even if a sudden application of force to the body of Mr. Guthrie was called for, which I’ve concluded it was not, he could have batted away or otherwise struck at Mr. Guthrie’s arm.

Accordingly, I find that Constable Campbell used more force than was necessary and that the force used was unreasonable and excessive. [ 39 ] In his assessment the trial judge failed to appreciate the exigency of the situation and Campbell’s concern respecting the immediate injury to the integrity of the breathalyzer instrument.

While the trial judge considered it would be objectively reasonable to anticipate Guthrie would touch the breathalyzer again after having been warned not to touch it, and after having been advised to the possibility of a criminal charge of mischief being laid, conversely it must be recognized, it would have been objectively reasonable to conclude Guthrie would not touch the breathalyzer instrument after having been warned not to touch it again and after being advised of the possibility of the criminal charge. But such limited objective reasoning misses the mark respecting the exigency of the situation.

Campbell’s concern was the immediate injury to the breathalyzer instrument by Guthrie’s actions. To lay a subsequent criminal charge of mischief does not alleviate the agony of the moment. The laying of the criminal charge would occur at a later time. A subsequent laying of a criminal charge does not contemplate the immediacy of the situation which required an instant response to prevent a subsequent interference by Guthrie respecting the breathalyzer instrument.

That interference might impact upon the physical integrity of the breathalyzer instrument or upon the functuality of the breathalyzer instrument in providing accurate and dependable breath sample readings. The alternative courses of action suggested by the trial judge were no immediate guarantees against damage or possible damage to the breathalyzer instrument. A verbal direction to Guthrie, who was more physically involved in his interference with the breathalyzer instrument on the second occasion, would not necessarily ensure the physical integrity of it.

A refusal or a delay by Guthrie or further physical interference, despite Campbell’s command, could possibly occur and result in immediate and serious injury to it. The manual removal of Guthrie’s hand or holding the breathalyzer instrument in place could have resulted in a struggle between Campbell and Guthrie. A struggle again could have impacted the physical integrity of the breathalyzer instrument.

The suggested alternative of striking at Guthrie’s arm could not guarantee the immediate physical integrity of the breathalyzer instrument and indeed could leave Campbell open to a charge for striking the arm and a conviction for common assault if his defences were rejected at trial. [ 40 ] However in countering the trial judge’s suggested alternatives, I, too, have looked at the use of force through the lens of hindsight. Rather a judge must only look at Campbell’s actions in the exigency of the moment.

Here Campbell was not certain of Guthrie’s future actions after Guthrie grabbed the breath tube and lifted the breathalyzer instrument off the desk. At that moment he was concerned about the possibility of immediate and serious injury to the breathalyzer instrument. In the split second he had to react, his training taught him to deliver a stun blow to Guthrie in an attempt to cause Guthrie to release his hold on the breathalyzer instrument.

The blow was one delivered in a forward motion with no body torque or great force applied. There was no intention to hurt Guthrie and indeed Guthrie was not injured. The trial judge did not examine or assess this evidence in the light of Campbell’s concern respecting the physical integrity of the breathalyzer instrument under s. 25(1) .

The trial judge did not examine or assess this evidence because he had reached the determination that a sudden application of force to Guthrie was not called for in the circumstances. [ 41 ] The misapprehension of the evidence, by the trial judge was a palpable and overriding error. Further while I recognize the determination by a trial judge of whether force used in a particular circumstance was excessive is one that is owed considerable deference, I am satisfied, despite this deference, the trial judge made a palpable and overriding error in his determination the force used was excessive.

It affected the reasonableness of the verdict. [ 42 ] As a result under the reasoning set out in the preceding paras. minimal use of force in the exigency of the circumstances meets the provisions of s. 25(1) of the Criminal Code . The Crown cannot as well disprove any of those provisions under s. 25(1) beyond a reasonable doubt on the evidence provided by Campbell and accepted by the trial judge. In my opinion s. 25(1) provides a complete defence to Campbell. [ 43 ] After rejecting Campbell’s defence under s. 25(1) the trial judge proceeded to deal with Campbell’s defence under s. 27 of the Criminal Code .

It states: Everyone is justified in using as much force as is reasonably necessary (

a) to prevent the commission of an offence, (

i) for which, if it were committed, the person who committed it might be arrested without warrant, and (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or (

b) to prevent anything that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in para. (a). [ 44 ] In assessing the s. 27 defence the trial judge found the breathalyzer instrument was valuable. He considered if it was damaged, the indictable offence of mischief might have occurred. Although he accepted it would be reasonable to conclude that Guthrie may have committed the indictable offence of mischief by interference with the breathalyzer instrument, he indicated he was not satisfied such interference was likely to cause immediate or serious harm to the breathalyzer instrument. Consequently the trial judge found the provisions of s. 27 (

a) did not provide Campbell with a defence. [ 45 ] The trial judge further determined the alternative defence under s. 27 (

b) of the Criminal Code was not applicable. Although he found Campbell’s evidence, when assessed under s. 27 (b), allowed Campbell to form a subjective belief that harm may be occasioned to the breathalyzer instrument, he determined the required objective point of view was not met by Campbell’s belief. He reached that determination after finding the gist of Campbell’s evidence indicated that Campbell did not “really think” so much, but rather reacted from a belief that harm may be occasioned to the breathalyzer instrument. The trial judge indicated he did not accept Campbell’s belief met the required “reasonable grounds” under s. 27 (

b) wherein, Campbell, would be acting to prevent an offence enumerated under s. 27 (a). I note the trial judge reached that conclusion that Campbell’s belief did not meet the required objective standard despite his earlier acceptance of Campbell’s evidence respecting Guthrie’s actions and interference with the breathalyzer instrument. In the face of that acceptance, he found the evidence did not disclose immediate or serious injury to the breathalyzer instrument. That finding was made by his reference that Guthrie stopped touching the breathalyzer instrument on the first instance after being instructed to stop.

Although the trial judge found Guthrie immediately touched it again with greater force, he concluded there was no risk of immediate or serious injury to the breathalyzer instrument. The trial judge noted Krezanoski formed no conclusion that there was any risk of immediate or serious injury to the breathalyzer instrument.

Finally he found Campbell reacted out of frustration as opposed to a concern about a risk of immediate and serious injury to the breathalyzer instrument. [ 46 ] In this appeal Campbell submitted the trial judge misapprehended the evidence in making the finding he was not satisfied on an objective basis Guthrie’s interference with the breathalyzer instrument was likely to cause immediate or serious harm to it. Campbell

argued there was no supporting evidence for that finding. In turn Campbell submitted this factual error resulted in a subsequent error in the determination whether s. 27 of the Criminal Code provided defences. [ 47 ] The only evidence accepted by the trial judge came from Krezanoski and Campbell, who were both certified breathalyzer technicians. In particular he accepted the evidence of Campbell and Krezanoski over the evidence of Guthrie and he preferred the evidence of Campbell in certain areas over the evidence of Krezanoski.

Their evidence resulted in his finding that Guthrie touched the breathalyzer instrument on 2 occasions. Further he found Guthrie was warned of the possibility of charges of obstruction or mischief after the first touching. Finally he found Guthrie lifted the breathalyzer instrument off the desk. Both the evidence of Campbell and Krezanoski indicated breathalyzer instruments are fragile and susceptible to damage. Krezanoski agreed, if the breathalyzer instrument fell to the ground, it could be damaged.

More importantly she indicated her concern for the possibility of the breathalyzer instrument being damaged as it sat on the table. She pointed out the breathalyzer instrument could be damaged by pulling the “hose out”. Her testimony indicated breathalyzer technicians do not wish persons touching the breathalyzer instrument due to the possibility of damage. [ 48 ] Campbell further indicated in his evidence that due to the somewhat fragile nature of some components within the breathalyzer instrument, bumps or bangs could cause it not to work properly.

According to his training breathalyzer instruments are not to be subjected to abuse. [ 49 ] In my view against this background of factual findings there was no evidence upon which the trial judge could find Guthrie’s actions were not likely to cause immediate or serious harm to the instrument. Guthrie’s actions included pulling on the exhaust tube and lifting the breathalyzer instrument off the table. Campbell testified he was concerned that Guthrie’s actions could pull the breath tube off or cause it to be pushed or pulled off the desk.

There was no measuring stick to be found in the evidence to demonstrate such actions were insufficient to cause immediate and serious harm to the breathalyzer instrument. Indeed the opposite is true. Pulling the hose out or dropping the breathalyzer instrument back to the table, or possibly on the floor, could cause damage to this fragile breathalyzer instrument or its components. Accordingly there was no evidence to contradict the evidence of the two police officers. For the trial judge to make a contrary finding of little or no harm, which could be caused by Guthrie’s actions, defied the trial testimony.

There was no evidence to indicate Guthrie’s actions or potential actions (if he had not been stopped by Campbell’s intervention) could not have caused immediate and serious injury to the breathalyzer instrument. It must be borne in mind that s. 27 of the Criminal Code contemplates the use of reasonably necessary force to prevent the commission of an offence which would likely cause serious and immediate injury to the property (the breathalyzer instrument) for which a person can be arrested without warrant if the offence was committed.

The immediacy of any injury or possible injury to the breathalyzer instrument is a given due to Guthrie’s handling of the breathalyzer instrument. The potential of the seriousness of the injury or damage must be looked at by an analysis of Campbell’s subjective belief at the time he employed the force to prevent the commission of the offence. Of course the subjective belief must be reasonably grounded.

There was no evidence before the trial judge which could allow him to make a finding that Guthrie’s actions were “de minimus”in nature or were insufficient to cause serious injury or damage to the breathalyzer instrument. There was no evidence adduced to demonstrate what Guthrie’s actions would have been relating to the breathalyzer instrument without Campbell’s intervention.

The fact that a subsequent and proper breathalyzer test reading was provided by Guthrie after Campbell’s actions does not in itself in hindsight establish no immediate and serious injury to the breathalyzer instrument could have been occasioned by Guthrie’s actions.

At the moment of intervention Campbell would have no means of knowing the possible extent of any imminent and serious injury to the breathalyzer instrument by Guthrie’s actions or Guthrie’s possible subsequent actions, had intervention not occurred. [ 50 ] The trial judge based his finding of no immediate or serious harm to the breathalyzer instrument on his perception Guthrie was cooperative and was not otherwise disruptive, obstructive or combatant in that Guthrie listened to Campbell immediately after Campbell advised him to stop touching the breathalyzer instrument in the first instance.

On the second occasion when Guthrie grabbed the exhaust tube the trial judge found no risk of immediate or serious harm based on Krezanoski’s conclusion no such risk was involved. But the evidence provided no such foundation for such findings. Krezanoski preferred no such evidence nor did she reach any such conclusion. A review of her evidence does not reveal any direct evidence or inferential evidence that Guthrie’s handling of the breathalyzer instrument would not present any risk of immediate or serious harm to the breathalyzer instrument.

Her evidence indicated her police training as a certified breath technician taught her the breathalyzer instrument is quite fragile. She observed Guthrie’s actions could damage the breathalyzer instrument as it sat on the desk. Krezanoski was not asked whether Guthrie’s actions presented any risk of serious or immediate injury to the breathalyzer instrument. Under cross examination she adopted her witness statement.

In it she stated it appeared to her that Campbell was trying to stop Guthrie when he struck Guthrie, causing Guthrie to release his grip on the breathalyzer tube which was in turn causing the breathalyzer instrument to be lifted off the desk. Guthrie, despite the warning, elected to grab the exhaust tube and lift the breathalyzer instrument off the desk. In the face of such instructions and his contrary actions Guthrie hardly could be found to be cooperative, non-obstructive, non-combative and possessing appropriate listening skills.

The trial judge’s factual conclusion that he was not satisfied on the evidence that Guthrie’s actions were not likely to cause immediate or serious injury to the breathalyzer instrument was a misapprehension of the evidence and must be found to be incorrect. It was a palpable and overriding error, which affected the reasonableness of the verdict. [ 51 ] Certainly bearing in mind the inherent fragility of a technical instrument, which is charged with providing proper, accurate and dependable breath samples of an accused person, it is my view such actions by Guthrie on an objective basis could likely cause

immediate and serious injury to the Calgary Police Service’s property, namely the breathalyzer instrument. The immediacy of the injury is founded on Guthrie’s current actions as demonstrated in the evidence of Guthrie’s interference in his second handling of the breathalyzer instrument prior to Campbell’s intervention. The seriousness of the injury is founded on a concern Guthrie’s actions inferentially could result in inaccurate readings being provided by a damaged instrument. Such inaccurate readings would strike at any subsequent trial evidence on Guthrie’s charges under s. 253(1) (

b) of the Criminal Code . [ 52 ] It must further be borne in mind s. 27 (

b) of the Criminal Code provides Campbell with an alternative defence to his assault charge in that he is allowed to prevent anything being done on reasonable grounds that he believes would, if it were done, be an offence mentioned in s. 27 (a).

Mischief is one of those offences. [ 53 ] Campbell could have been remiss in his duty if he had not applied some force in the form of a stun move, as he testified he was trained to do, in order to deal with an intoxicated individual who was disruptive and obstructive in his actions prior to providing breath samples. [ 54 ] The reasoning set out in the preceding paras. justifies the use of reasonably necessary force by Campbell under the provisions of s. 27 of the Criminal Code . [ 55 ] Accordingly without dealing with the trial judge’s further rejection of s. 39(1) of the Criminal Code , it is my view the trial evidence provided Campbell with complete defences under the provisions of s. 25(1) and s. 27 of the Criminal Code . [ 56 ] In my opinion the errors are plainly identified and they affected the result of the trial and the result of the verdict.

If an appellant succeeds on a ground of misapprehension of the evidence an acquittal must be entered. I do not find it necessary to set aside the conviction and remit the matter for a new trial. Rather Campbell’s conviction under s. 266 of the Criminal Code is set aside and an acquittal is entered. Heard on the 20 th day of January, 2012. Dated at the City of Calgary, Alberta this 19 th day of July, 2012. A. G. Park J.C.Q.B.A. Appearances: Julie Snowdon for the Crown Willie deWitt

for the Appellant