R. v. Wallace et al Date:, 2003 BCPC 81

Citation: R. v. Wallace et al Date: 20030321 2003 BCPC 0081 File No: 126004-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAUL ELLIS NIELSEN ROSEMARY HELEN WALLACE VALENCIA NIELSEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ROSS TWEEDALE Counsel for the Crown: Colin Sweeney, Q.C. Counsel for Paul Ellis Nielsen: Kevin Filkow Counsel for Rosemary Helen Wallace: Simon Buck Counsel for Valencia Nielsen: Emil Doricic Place of Hearing: Vancouver, B.C.

Dates of Hearing: January 15, 16, 20, 21 and March 4, 2003 Date of Judgment: March 21, 2003 THE CHARGES Paul Nielsen is charged with: 1) obstructing a peace officer, P.C. Vilkas, in the execution of her duty, and 2) causing a public disturbance by shouting and screaming. Rosemary Wallace is charged with: 1) assaulting a peace officer, P.C. Kask; 2) causing a public disturbance by shouting and screaming, and 3) obstructing a peace officer, P.C. Kask in the execution of her duty. Valencia Nielsen is charged with: 1) assaulting a peace officer, P.C.

Kask, in the execution of her duty. [ 1 ] All the offences are alleged to have occurred around 9:30 p.m., on Monday, June 11, 2001, in a residential neighbourhood in East Vancouver. [ 2 ] June 11, was a sunny, warm evening and sunset was 9:17 p.m. In Vancouver on sunny evenings in June, it is commonly light in the sky for long after sunset. The natural light was generally good for seeing the events of the evening of June 11. WITNESSES CALLED BY THE CROWN

P.C. Denise Kask [ 3 ] P.C. Kask was a member of the RCMP for 4 years and then joined the Vancouver Police in February 1999. On June 11, she had been a police officer for about 6 1/2 years. [ 4 ] Shortly before 9:30 p.m., P.C. Kask and P.C. Vilkas were stopped and talking to two other Vancouver Police officers, P.C. Foster and P.C. Shaw at a traffic circle at Lakewood and Kitchener. All the police officers were in uniform and were driving marked police cars. [ 5 ] P.C. Kask noticed a black, late model, Honda Prelude, drive up to the circle, then turn and continue back on Kitchener from where it had come.

She said that the car was driven away at a bit above the speed limit of 50 kph and that there appeared to be four young males in the Honda. She was aware that the Honda Prelude was on a list of the 10 most stolen vehicles in Vancouver and young people often dumped cars in the area after joyriding. [ 6 ] P.C. Kask testified that the officers wondered if the car was stolen and decided to pursue the Honda for a traffic stop. They asked the dispatcher for a CPIC check to see if the car was stolen, but had to request the information again because the dispatcher had made a licence plate error. [ 7 ] P.C.

Vilkas turned on the flashing red, blue and white emergency lights but did not turn on the siren. The driver of the Honda pulled the car over to the right hand side of a laneway, very near the house in which he lived. The driver's name, it was later learned, was Joseph Nielsen. [ 8 ] No issue arises about whether the police officers had reasonable grounds or articulable cause to detain the driver of the Honda. [ 9 ] The police had the right to make a traffic stop, randomly. Their authority is derived from s. 73 of the British Columbia Motor Vehicle Act . 73

(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop.

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [ 10 ] This

section has been held inconsistent with s. 9 of the Charter of Rights and Freedoms , but saved by s. 1, as a reasonable limit. R . v Wilson 1993 CanLII 2875 (BC CA) , [1993] BCJ 2427 (BCCA) . [ 11 ] What then transpired between the officers and Joseph Nielsen led to his arrest and the arrest of three members of his family. [ 12 ] When Joseph Nielsen, stopped the Honda in the laneway, P.C. Vilkas said to him through his open window: "Going a little fast there guys" and laughed. According to P.C. Kask, he didn't respond. P.C. Kask then asked him if he was the owner.

The driver backed the Honda up about 5-6 feet and stopped. Both officers got out of their vehicle. [ 13 ] After P.C. Kask asked him to turn off his engine, he passed her his driver's licence. The passenger in the front seat passed the car registration to Joseph Nielsen who passed it to P.C. Kask. [ 14 ] In cross-examination, P.C. Kask said that when Joseph gave her his licence, she looked at it but could not recall whether the photo matched Joseph's appearance.

She did not ask him his name at that time, but he told her his address. [ 15 ] Joseph Nielsen then phoned someone on a cell phone from inside the car and P.C. Kask heard him say in a panicky voice: "Hurry up and get out here. The police are harassing me". It is just as likely he said the police were "hassling" him and he likely said he was parked in the laneway behind the family home. Within a very short time four or five people came out of the backyard gate of the Nielsen home. [ 16 ] The first Nielsen family member to speak to P.C. Kask was Rosemary Wallace. According to P.C. Kask, Ms.

Wallace asked in a raised voice, "What the hell are you doing?" [ 17 ] P.C. Kask asked her to step away from the Honda so she could continue interviewing Joseph Nielsen. Ms. Wallace said she was the driver's sister, she wanted to know what was going on, and she wasn't going anywhere. The two were standing very close together at this point. P.C. Kask asked her to move away again and told Ms. Wallace she would be arrested for obstructing a police investigation if she did not. [ 18 ] Ms. Wallace screamed that the police had no right to stop her brother, it was her laneway and she was not going to move. [ 19 ] P.C.

Kask had not completed her traffic stop investigation which she had embarked on earlier. She testified she was conducting a traffic stop under the Motor Vehicle Act and entering an investigation of a possible stolen car. She said the driver must give his name and

must confirm the identity of the registered owner of the car. Joseph Nielsen had not yet provided this information. [ 20 ] At this point, P.C. Vilkas radioed for a cover unit of police officers to come to the laneway. A few minutes later, P.C. Shaw and P.C. Foster drove up and stopped about 50 feet away from where P.C. Kask was standing beside the Honda driver's door. P.C. Shaw walked up to P.C. Kask and she testified she asked him to arrest Ms. Wallace for obstructing a police officer, namely herself. Ms. Wallace said, "You can't fucking arrest me." [ 21 ] P.C.

Kask said that she based the grounds for the arrest as Ms. Wallace standing too close to her, 1-2 feet away, shouting at P.C. Kask and refusing to move away when she requested her to do so. This prevented P.C. Kask, she testified, from continuing with her traffic stop investigation. In addition several - up to three - other women were yelling at P.C. Kask to leave Joseph Nielsen alone. [ 22 ] (PC Shaw testified in cross-examination that neither P.C. Kask or P.C. Vilkas asked him to arrest anyone at the scene.) [ 23 ] P.C. Kask then asked Joseph Nielsen if he had ever been dealt with by the police before.

He responded, "Check your fucking computer." [ 24 ] P.C. Vilkas had been dealing with an older man, at the driver's side of the Honda. This person, it was later learned, was Paul Nielsen, the father of Joseph Nielsen and Rosemary Wallace. [ 25 ] After Joseph Nielsen's last remark, Paul Nielsen asked P.C. Kask what she was doing. P.C. Kask told him that it was a traffic stop. She said that Paul Nielsen seemed relieved by this answer. P.C. Kask then told him to "back off" in a raised voice. She described Paul Nielsen's response as agitated and angry. He was red in the face. In a loud voice, according to P.C.

Kask, he said, "Lose your attitude." In his evidence he confirmed those words and said he added the word "dear", but denied being loud or angry. [ 26 ] At P.C. Kask's request, Joseph Nielsen got out of the car and came toward the officer. P.C. Kask responded by placing her hand on him and directed him in a firm voice to go to the front of the Honda. Joseph Nielsen hit P.C. Kask's hand away and said, "I want a fucking lawyer." She told him the matter could be dealt with quickly but if he refused to move away from Paul Nielsen and Ms. Wallace, who, she said, was still yelling, he could be arrested for obstruction.

Joseph Nielsen started flailing his arms around and P.C. Kask then told him he was under arrest for obstruction. She placed a handcuff on one arm. [ 27 ] Ms. Wallace came toward the officer yelling, "leave my fucking brother alone." At this point, Ms. Wallace, who was behind P.C. Kask, jumped on P.C. Kask and put her arms around P.C. Kask's neck. P.C. Kask testified in examination-in chief-that P.C. Shaw assisted P.C. Kask by grabbing the loose handcuff attached to Joseph Nielsen. [ 28 ] (In cross-examination and after reading the notes of P.C. Shaw and P.C. Foster, she agreed that she was mistaken and that P.C.

Foster, not P.C. Shaw had assisted her by grabbing the loose handcuff. She agreed with the suggestion that this error was due in part to the chaotic, unexpected and fast developing confrontation in the laneway.) [ 29 ] P.C. Kask then pushed Ms. Wallace away from her, took pepper spray from her belt and sprayed Ms. Wallace in the face. [ 30 ] Ms. Wallace responded by punching P.C. Kask in the side of the head and knocked off the officer's glasses. (She is near sighted but can see up to 20-30 feet away without glasses.) The officer then grabbed Ms. Wallace and pushed her to the ground. [ 31 ] P.C.

Kask saw a movement and someone kicked her in the chest, causing her to stumble backwards. (She was wearing a ballistic vest, so the impact of the blow was lessened.) She then stepped further backwards and sprayed the person she believed had kicked her. She then arrested Valencia Nielsen as the kicker and turned her over to other officers. Valencia Nielsen, is the daughter of Paul Nielsen and the sister of Joseph Nielsen and Rosemary Wallace. P.C. Kask had not seen Valencia Nielsen earlier that evening and had never dealt with any of the Nielsen family before. [ 32 ] When P.C.

Kask pepper sprayed Valencia Nielsen, Ms. Nielsen ducked and as a result P.C. Shaw who was standing behind Ms. Nielsen was also sprayed. P.C. Shaw, Rosemary Walker and Valencia Nielsen were treated for the pepper spray symptoms by paramedics at the scene, then the latter two were taken by police wagon to the 312 Main Street Jail. P.C. Steve Thomas Shaw [ 33 ] P.C. Shaw has been a peace officer with the Vancouver Police for 11 years. He confirmed the evidence of P.C. Kask of meeting at the traffic circle and P.C. Kask and P.C. Vilkas leaving to follow the black Honda.

He testified that about 30 seconds later, he heard the broadcast of the traffic stop in the south lane of the 2100 block Napier. In about another 30 seconds, the call for backup came and he and P.C. Foster said they would respond. It took a very short time for them to drive the 7 blocks, pull in to the laneway and park behind the police car of P.C. Vilkas and P.C. Kask. [ 34 ] There was a crowd of people in the lane, all unknown to P.C. Shaw, except for the other police officers. He heard loud voices and as he got closer to the black Honda he saw a man he later learned to be Paul Nielsen standing near to P.C.

Vilkas, yelling at her about something to do with the traffic stop. (P.C. Shaw made no notes about Mr. Nielsen's conduct toward P.C. Vilkas but testified he recalled it.) [ 35 ] P.C. Vilkas turned to P.C. Shaw and said, "We don't know what is going on. Family members have come to the car. Please deal with them while we deal with our traffic stop." P.C. Foster then spoke to Paul Nielsen and P.C. Shaw went over to speak to 5 or 6 nearby women, varying in age from teens to mid-50's. He later learned the name of the main speaker, Rosemary Wallace, who was upset and agitated.

She said the police had no right to stop the black Honda on her street. [ 36 ] He asked the group of women to let the police finish dealing with the driver. Ms. Wallace became more upset and complained that the police should deal with serious matters like the drug problem on the Downtown Eastside. P.C. Shaw tried to engage the group members in conversation but they kept moving and advancing toward P.C. Kask and P.C. Vilkas. Valencia Nielsen was a member of the

group and P.C. Shaw noticed that she walked with a limp. [ 37 ] Eventually the group moved near to the left rear of the two police cars. P.C. Shaw, whose back was to where the other police officers were, (i.e. he was facing east), glanced over his shoulder and saw P.C. Kask struggling with Joseph Nielsen. P.C. Foster was then near the passenger side of the Honda. Rosemary Walker swore at P.C. Shaw and knocked on his chest with her closed fist. As he was wearing a heavy protective vest this only slightly annoyed him. [ 38 ] Ms. Walker then ran past P.C. Shaw, toward where P.C.

Kask was continuing to struggle with a male near the front of the Honda. Ms. Walker lunged at P.C. Kask's upper body and her neck. P.C. Shaw was about 30-40 feet away from the two at this point. P.C. Kask rolled Ms. Walker off her and attempted to put her in a handcuffing position. P.C. Vilkas was struggling with someone to the east and P.C. Foster was on the passenger side of the Honda restraining two males (Paul Nielsen and Joseph Nielsen) using his arms and back to push them against a fence. [ 39 ] When P.C. Shaw next saw P.C. Kask, she was holding Ms. Wallace on the ground. P.C.

Shaw testified that he saw a person he later identified as Valencia Nielsen, come across his field of vision, take 2-3 steps and deliver a kick which hit P.C. Kask in the chin. He saw Valencia Nielsen in profile, but estimated he saw 70% of her face. [ 40 ] In cross-examination, he agreed there were up to eight women in the lane and that his notes of the physical description of Valencia Nielsen could have been written after her arrest and his observation of her at the jail. P.C. Shaw also agreed that the person who kicked P.C. Kask had no difficulty planting her foot, extending her leg and hitting P.C.

Kask in the head. The actual time P.C. Shaw was aware of and observed the kicker was a few seconds. [ 41 ] Very shortly after the kick, P.C. Shaw was hit in the face by pepper spray from P.C. Kask attempting to spray Valencia Nielsen. He was rendered virtually sightless but heard a fight going on around him and people yelling. He said he never saw P.C. Kask use pepper spray on anyone, including himself, that night. P.C. Shaw retreated toward nearby Lakewood as he was in a highly vulnerable position. [ 42 ] At the 312 Main Jail later that night, P.C.

Shaw saw the three accused and confirmed to himself that Paul Nielsen was the man berating P.C. Vilkas when P.C. Shaw first arrived in the laneway, that Rosemary Walker was the woman who assaulted P.C. Kask by grabbing her from behind and that Valencia Nielsen was the young woman he saw kick P.C. Kask. [ 43 ] In the process of writing their notes and their part of the report to Crown Counsel, all four police officers met in the report writing room at the police station and discussed what had occurred that night.

The report was the result of that discussion and even though it was soon after the incident in the laneway, P.C. Shaw agreed there was confusion about who had done what and therefore who should be charged and, presumably, with what offence(s). [ 44 ] There is nothing inherently wrong in police officers discussing a crime they have investigated. However, where one or more investigating officers are the alleged victims of the crime, care must be taken to minimize what is often called "witness tainting" - intentional and unintentional changes in evidence.

Without safeguards, evidence which purports to be the witness's evidence based on recollection, may, in fact, be based on what someone else told them. P.C. Darren Foster [ 45 ] P.C. Foster has been a police officer with the Vancouver Police for 11 years. He testified that he and P.C. Shaw arrived at the laneway within about 1 minute of the call to assist. As they drove into the lane he saw another police car with emergency lights on and 8 to 10 people milling around. [ 46 ] He walked up to P.C.

Vilkas who was on the passenger side of the black Honda and saw Paul Nielsen about one foot away from her saying, "Write the fucking ticket and get the hell out of here." [ 47 ] P.C. Vilkas asked P.C. Foster to assist her by getting Paul Nielsen away from her. P.C. Foster asked Mr. Nielsen to move away and he replied, "I can stand where I want. I'm not going anywhere." Mr. Nielsen was agitated and upset. [ 48 ] P.C. Foster then slid in between P.C. Vilkas and Mr. Nielsen and the latter refused again to move, repeating what he had just said. He added that P.C. Vilkas had a gun and could take care of herself.

At this point, P.C. Foster told him that he was obstructing P.C. Vilkas in the execution of her duties. P.C. Foster placed his hand on Mr. Nielsen's chest and walked him backwards to an area at the back of the black Honda. Mr. Nielsen did not resist, but remained hostile. [ 49 ] P.C. Foster said his practice in a situation like this is to use a calm, quiet, monotone and this is what he did with Mr. Nielsen. P.C. Foster explained to Mr. Nielsen that he was obstructing P.C. Vilkas, but Mr.

Nielsen ignored this explanation and made a number of remarks about the police dealing with drug dealers instead of law-abiding citizens who pay police salaries. [ 50 ] Paul Nielsen then moved from side to side in an apparent attempt to get past P.C. Foster and return to P.C. Vilkas. This continued for 30 to 60 seconds while he shouted at P.C. Vilkas around P.C. Foster, "Just write the fucking ticket " and "get the fuck out of here." [ 51 ] Shortly after, a person, who P.C. Foster believed was Valencia Nielsen, told P.C.

Foster that this was their lane and the police should leave. [ 52 ] She also told PC Foster to leave her father alone. In cross-examination P.C. Foster agreed that during this time, most of his attention was directed to Mr. Nielsen, not Valencia Nielsen. [ 53 ] P.C. Foster then noticed P.C. Kask and P.C. Vilkas at the front of Honda along a chain link fence struggling with a male (Joseph Nielsen) who had come from the Honda. P.C. Kask was holding Joseph Nielsen's left arm and P.C. Vilkas his right arm. P.C. Foster went to assist. During the continuing struggle, P.C.

Vilkas put a handcuff on Joseph Nielsen's right arm but was unable to handcuff his left because he was holding onto the fence with his left hand. Despite P.C. Kask and now P.C. Foster hitting Joseph Nielsen's hand, he

continued to hold onto the fence. The two officers eventually managed to get his right arm around his back and then P.C. Vilkas or possibly P.C. Kask attached the other handcuff to his left arm. P.C. Foster then turned Joseph Nielsen around to face him. [ 54 ] Meanwhile shouting continued behind his back and Paul Nielsen and Valencia Nielsen shouted several times, "Let him go." Hearing more loud shouting he turned and saw Rosemary Wallace lying in the middle of the lane with P.C. Kask bent over her with her hands on Ms. Wallace's chest. [ 55 ] A few second elapsed and then P.C.

Foster said he saw the person who had told him earlier to leave the lane and he later identified as Valencia Nielsen come into his view diagonally in a south west direction. She had a quick walk, she pulled back and kicked P.C. Kask in the upper chest area with her right leg. He was about 8 to 10 feet away from P.C. Kask when this happened. He said the kicker walked with a "stomp" and a slight limp. P.C. Kask was knocked up and backwards. P.C. Foster was shocked. [ 56 ] P.C. Kask regained her equilibrium, and began to move toward Valencia Nielsen. P.C. Foster testified P.C. Shaw may have grabbed Ms.

Nielsen's back. P.C. Kask then applied pepper spray in Ms. Nielsen's direction. Both P.C. Shaw and Ms. Nielsen were hit by the spray. Everything stopped for a moment. [ 57 ] Then Paul Nielsen began walking toward P.C. Shaw. P.C. Foster grabbed Paul Nielsen's sweater and pulled him back as hard as he could and against the fence. P.C. Foster confirmed he then lost sight of the young woman who had kicked P.C. Kask. P.C. Foster then held both Joseph and Paul Nielsen against the fence with his back pressed against them and a wrist lock on the handcuffed Joseph. [ 58 ] Paul Nielsen reached around P.C.

Foster's shoulders and applied a loose choke hold but there was no discomfort. When Paul Nielsen attempted to push against the officer a second time, P.C. Vilkas applied pepper spray to Paul Nielsen on his left side and he released the loose choke hold and offered no further resistance. P.C. Foster received a mild dose of pepper spray as well. Joseph Nielsen then remained where he was and did not struggle. About a minute later more police officers arrived and Paul Nielsen received treatment for the pepper spray. [ 59 ] Later the same evening at the jail, P.C.

Foster established the identity of the three accused that were charged. He testified he wrote his notes and report to Crown Counsel in the report writing room and discussed what had happened with police officers who had not been involved in the incident. He acknowledged that P.C. Vilkas and P.C. Kask may have overheard him describing the evening's events. [ 60 ] P.C. Foster agreed in cross-examination that he failed to note Valencia Nielsen's name in his report when describing the young woman who identified herself as Paul Nielsen's daughter and who P.C. Foster said kicked P.C. Kask in the upper chest.

Although he wrote notes describing the female kicker at the scene, the description is general, fitting a number of young women in the lane that evening: 5' 6'' medium build, dark curly hair with sun glasses atop her head. He described her wearing a green vest, a white shirt, light coloured pants and brown boots. He noted no distinctive physical features. Specifically there is no note in either the officers' notes or report to Crown Counsel that the kicker had a "sort of a limp." [ 61 ] P.C.

Foster also agreed that seeing Valencia Nielsen at an earlier trial (a mistrial was declared on the second day) and at the first two days of this trial may have solidified his identification of her as the kicker and made him more certain that the kicker had a limp. (As the evidence later makes clear, Valencia Nielsen has a pronounced severe limp due to a stroke she experienced when she was a child.) [ 62 ] P.C. Vilkas did not testify. I was told that she was on sick leave due to an accident and the Crown was not requesting an adjournment to hear her evidence. [ 63 ] Two other police officers, Sgt. Wager and P.C.

Black, testified briefly about going to the laneway after the incident was over. WITNESSES CALLED BY THE DEFENCE Paul Nielsen [ 64 ] Mr. Nielsen is 59 years old, a widower and the father of 12 children. [ 65 ] He is 6' 4" tall and weighs about 200 lbs. He is an interior designer and has no criminal record. He has lived in the same neighbourhood since he was 6 years old and his present house for 25 years. [ 66 ] On June 11, 2001, he was in the living room with four of his daughters: Rosemary 37 (or 38), Allura 36 (or 37), Serena 32, Valencia 26 (or 27).

He said the five of them each had a glass or two of wine that evening from a one litre bottle. [ 67 ] Around 9:20 p.m., his son Joseph phoned. Joseph who was then 22 years old, spoke to his sister Rosemary Wallace. She told Mr. Nielsen that Joseph was calling from the laneway behind their home, asking for his father, because he was being harassed (or hassled) by the police. [ 68 ] Mr. Nielsen, Ms. Wallace, Valencia Nielsen, Serena Nielsen and Allura Nielsen went immediately out their back door to the laneway. There Mr. Nielsen saw P.C. Kask on the driver's side and P.C.

Vilkas on the passenger side of a Honda driven by his son, Joseph. He heard P.C. Kask say into her radio, "The family is coming." [ 69 ] Mr. Nielsen's said that, as his father, he was concerned for Joseph. Paul Nielsen was a driver, knew of the police right to stop drivers routinely and said he had been subject to a traffic stop. In cross-examination, Mr. Nielsen mentioned that Joseph has a hearing disability. This may explain, in part, why he was more protective of his son and wished to be involved in the police investigation. Mr.

Nielsen agreed that he may have known that Joseph had been arrested and charged with a drug offence in the past. [ 70 ] Mr. Nielsen said, "I'm Joey's father. What appears to be the problem here." P.C. Kask said that they were investigating him for speeding. Mr. Nielsen testified he was relieved that this was a minor matter and said, "That's not a problem. Write him a ticket and I'm

heading in." He said this in a normal voice. [ 71 ] He then testified that P.C. Kask said to him in a raised voice, "Back off. Stay out of it." He said he firmly responded, "Look dear, lose the attitude and we'll talk about it." He said that P.C. Kask responded by screaming, "Stay out of it." [ 72 ] When asked in cross-examination about why he used the term "dear" when speaking to P.C. Kask, Mr. Nielsen said it was because he felt like he was dealing with one of his daughters. [ 73 ] Mr.

Nielsen testified that he stayed in the lane because his son was involved and if there was a problem he wanted to solve it and get an answer. He had become concerned when P.C. Kask had responded to his last comment by, in his words, screaming at him. Another of Mr. Nielsen's son's, Markus, was also in the Honda with Joseph Nielsen. Mr. Nielsen became suspicious that the police were investigating Joseph for more than speeding or why, he reasoned, did P.C. Kask scream at him. [ 74 ] He testified that he thought P.C. Kask was lying to him about the reason for the stop.

He said both police officers were "wired" and "screaming" for no reason. He said he intended to remain in the laneway to see what happened to his two sons. He confirmed he told P.C. Vilkas he could stand where he wanted. He testified he wanted to see if the police were going to hassle Joseph. [ 75 ] He said he was well aware of young people being hassled in cars.

"You think of this when you grow up on the East Side" he said. [ 76 ] Paul Nielsen did not give a responsive answer to why he felt the police had to answer any other questions or deal with him after saying they were investigating Joseph for speeding. [ 77 ] Mr. Nielsen's four daughters, as noted previously, were in the lane with him. He said Rosemary Wallace was about 2-3 feet from P.C. Kask and was asking her what was going on. Mr. Nielsen could not recall if Ms. Wallace was shouting at P.C. Kask. [ 78 ] About 30 seconds to one minute after this exchange between Mr. Nielsen and P.C.

Kask, P.C's Shaw and Foster arrived. P.C. Vilkas asked P.C. Foster to move Paul Nielsen away from the Honda because he was obstructing her in carrying out her investigation. Mr. Nielsen said he found this surprising because she had plenty of room to do her job and he only wanted to know what was going on with his son. Paul Nielsen said he was about 3 feet from P.C. Vilkas and he was not upset. [ 79 ] After P.C. Foster had moved Mr. Nielsen away from the Honda, the two began a conversation which included Mr. Nielsen's comment that he paid the police officer's salary. P.C.

Foster may have responded with a comment about taxes going to paying for other services including sewage. Mr. Nielsen denied he was trying to get around P.C. Foster to return to argue with P.C. Kask and did not intend to obstruct P.C. Vilkas or any police officer in carrying out their duties. [ 80 ] Everything was happening very quickly. After a short conversation, P.C. Foster grabbed Mr. Nielsen, turned him around and ran over to assist P.C. Vilkas and P.C. Kask who were struggling with Joseph Nielsen at the chain link fence. Mr. Nielsen testified that P.C. Vilkas was kicking Joseph Nielsen and P.C.

Kask and P.C. Foster were trying to break Joseph's grip on the fence. Mr. Nielsen went toward where Joseph was and shouted at the officers to stop what they were doing. P.C. Foster then took hold of Paul Nielsen and held him against the fence. There Mr. Nielsen heard Ms. Wallace screaming and saw her lying on her back with P.C. Kask standing over her applying pepper spray. He said Ms. Wallace was in agony. [ 81 ] Mr. Nielsen tried to get away from P.C. Foster to intervene but was handcuffed by him. Mr. Nielsen said he did not see anyone kick P.C. Kask. P.C.

Vilkas then came up to him and kicked him in the leg he said, and applied spray to his eyes. P.C. Foster may have got some spray too. [ 82 ] He did not see what Ms. Wallace had done before he saw her lying on the ground because he said he was being held against the fence by P.C. Foster. [ 83 ] Mr. Nielsen said he could not understand how the incident escalated. His simple desire, he said, was to talk to the police officers about their investigation of his son at a traffic stop. He described the resulting chaos as "a battle zone." [ 84 ] Mr.

Nielsen, Rosemary Wallace, Valencia Nielsen and Joseph Nielsen were arrested in the laneway that evening and taken to the city jail. [ 85 ] They were charged and released on bail the next day. [ 86 ] Paul Nielsen was aware that Valencia Nielsen was charged with assault of P.C. Kask, by her kicking the officer. The Nielsen family has, of course, discussed the events of the evening of June 11, including who kicked P.C. Kask. Mr. Nielsen testified that Valencia is physically incapable of kicking in the manner described. [ 87 ] Mr. Nielsen said that his daughter Serena admitted that she was the one who kicked P.C.

Kask. He justified his failure to tell Serena to go to the police and admit the assault on the basis he didn't trust the police to properly investigate and because they obviously had the identification of Valencia as the "kicker" so wrong. He felt confident Valencia would be acquitted because the evidence was clear that she could not physically do what the police officers described. [ 88 ] He testified he and his daughters all wrote statements of what happened that evening but Mr. Nielsen said he had not read his statement over for several months.

He explained this, in part by saying this event was not something that had left him for 1 1/2 years. Rosemary Wallace [ 89 ] Rosemary Wallace testified that in addition to her three sisters mentioned by her father, another sister, Amanda, was present in the family home.

[ 90 ] When Joseph Nielsen phoned home, she testified she said, "Dad, we have to go out there. Joey says the police are harassing him." She testified later that her brother did not overstate problems nor did he exaggerate. She suspected that the police were doing something to Joseph Nielsen that they should not be doing. [ 91 ] When she, her father and sisters came out into the lane, she went up to P.C. Kask and asked her in a normal voice what was going on. [ 92 ] The scene was calm when she first arrived in the lane. P.C. Kask said they had stopped her brother for speeding.

She did not recall demanding to know "what the hell" the police were doing. Ms. Wallace also could not recall P.C. Kask asking her to step away from the area beside the driver's side of the Honda. [ 93 ] She denied P.C. Kask telling her to step away or she would be charged with obstruction. She denied saying that the police had no right to stop Joseph Nielsen and denied saying it was "our lane." She did not recall if she said, "Leave my fucking brother alone." [ 94 ] P.C. Shaw and P.C. Foster arrived and Ms. Wallace began talking with P.C. Shaw.

She described herself as uptight because the police seemed to be making a big deal out of a minor traffic matter. Ms. Wallace said the police could more productively use their time dealing with drug dealers on Main Street. P.C. Shaw responded that he had worked in that area for a considerable time. [ 95 ] Ms. Wallace said her sisters, Serena and Valencia were present during this conversation with P.C. Shaw. Ms. Wallace denied yelling at P.C. Shaw.

She commented that she was concerned about her family and was getting emotional and tense as matters appeared to be escalating. [ 96 ] She was alarmed that there were 4 police officers present and confused that they were necessary but said, "I wasn't losing it." [ 97 ] She could not recall whether she knocked P.C. Shaw's chest protector. [ 98 ] She did not see Joseph Nielsen get out of the Honda nor see P.C. Kask direct him to walk to the front of the Honda. [ 99 ] When she next saw Joseph Nielsen, he was close to the chain link fence, surrounded by and struggling with police and screaming. Ms.

Wallace ran toward him. She testified that she was shocked and just reacted because the police were doing something she considered improper to her brother. She was unresponsive when she was asked if she was angry with the police. [ 100 ] She denied jumping on, lunging at, or attempting to make contact with any police officer. She recalls being grabbed by the hair, dragged down to the ground and pepper sprayed as she went down.

She does not know who grabbed her. [ 101 ] She said she ran toward her brother, Joseph, who was near the fence because he was surrounded by police but did not know what she was going to do when she got there. She said she was shocked to see what the police were doing, and whatever she was going to do was to help her brother. She did not recall how close she was to her brother when she was pulled down. She did not see anyone kick a police officer that evening. [ 102 ] She participated in the family discussion where it "came out" that Serena Nielsen and not Valencia Nielsen had kicked P.C. Kask. Ms.

Wallace cannot recall if Serena was there for the discussion, but at sometime, Serena admitted to Ms. Wallace that she had kicked P.C. Kask. The reason Ms. Wallace gave for the family not encouraging Serena to admit the assault to the police was that they all knew Valencia could not be convicted because she was physically unable to have kicked P.C. Kask. Valencia Nielsen [ 103 ] Ms. Nielsen testified that she lives in the family home with two of her sisters, two brothers, Joseph and Markus Nielsen, and her father. [ 104 ] When she was young, she suffered a stroke as a reaction to polio vaccine.

She was paralyzed on the left side. She is 5' 3" tall and weighed 104 lbs. on June 11, 2001. [ 105 ] She described being in the family living room when the phone call came from her brother, Joseph and walking out into the laneway with her father and three sisters. She saw P.C's Kask and Vilkas dealing with her brother and then P.C. Shaw came to speak to her and other family members. [ 106 ] She said she was initially not upset or angry with the police because she did not know what was occurring. She then said, "everything went crazy" and Rosemary Wallace went to see what was happening with P.C. Kask, who Ms.

Nielsen thought, was trying to get Joseph out of the Honda. [ 107 ] The next thing Valencia Nielsen saw of importance was Rosemary thrown to the ground by P.C. Kask and the officer applying pepper spray to Rosemary. Valencia went to help her sister and as she approached Rosemary, P.C. Kask applied pepper spray to Valencia, then flung her aside. A nearby neighbour named Angela caught Valencia. Valencia heard P.C. Kask ask a plainclothes police officer to arrest Valencia. The officer, she said, slammed her head into the back end of a car.

She was arrested and taken to jail. [ 108 ] That night, she was wearing tan pants, a white shirt, a green vest and black sneakers. She wore glasses. She said that her sister Serena is about 5" 8"" tall, weighs about 130-135 lbs. and is 5 years older than Valencia. She said that she and her sister do not look alike. That evening, Valencia said, Serena was wearing dark jeans, a green sweater and work boots. [ 109 ] Valencia denied kicking P.C. Kask or seeing anyone kick the officer. [ 110 ] Serena did not tell her that she kicked P.C. Kask. Her explanation for not trying to find out who did kick P.C.

Kask, even though Valencia believed she was obviously wrongly charged was this, "I accept my punishment because the police think it was me."

[ 111 ] Valencia Nielsen then demonstrated in the courtroom, in response to her lawyer's questions, her ability to walk, plant her foot and kick. [ 112 ] She did this several times, and it was clear that she had difficulty walking and could not plant her foot or lift her foot even slightly without falling over. [ 113 ] She explained that due to her stroke, her toes curl so it is difficult to remain stable. When she is nervous, as she said she was during the incident in the laneway, her left arm and hand also seize up, which she was able to show in the courtroom.

The condition of her arm and hand is so noticeable, that any person describing Valencia for identification purposes would most certainly include this characteristic. [ 114 ] In examination-in-chief, Ms. Nielsen said her disability was the same today as it was on June 11, 2001. In cross examination she said that an operation in December 2000 had led to some improvement but that after how she was treated (I gather she meant physically) by the police on June 11, she said she was more sick at the time of the trial than before the incident. Serena Nielsen [ 115 ] Ms. Neilsen is 33 years old.

She testified about being in the family home when the phone call came from her brother Joseph and proceeding to the lane with her father and three sisters. When she arrived in the lane she saw her brother in the black Honda and two uniformed police officers, one on either side of the vehicle. When her father, Paul Nielsen, asked the officers what was going on she said they responded a little aggressively. Very soon afterward, she saw one of the officers take Rosemary Wallace down to the ground and saw the officer then pepper spray Ms. Wallace.

She said that everything happened very quickly. [ 116 ] Serena Nielsen said that her defence mechanism slipped in so she walked quickly up to P.C. Kask and "pushed" the officer with the flat of her foot, with not very much force. Serena Nielsen said she was pepper sprayed before she kicked/pushed P.C. Kask. She said she went into the house after being pepper sprayed and after the kick/push. She was not arrested or charged. [ 117 ] She testified that she never saw Valencia Nielsen involved with any police officer that night.

She said she is taller and heavier than Valencia and does not look like her sister. [ 118 ] She did not see Joseph Nielsen being dealt with by the police officers at the chain link fence. [ 119 ] When asked in cross-examination why she did not tell her family right away that she was the person who had pushed/kicked P.C. Kask, she said she didn't know.

THE LAW Identification evidence - need for special caution [ 120 ] Although the principles related to the frailties of eyewitness identification apply to the evidence of all witnesses in this case, the need for special caution applies most critically to the Crown evidence of the assault of P.C. Kask by Valencia Nielsen. [ 121 ] R v. Edwardson [1993] BCJ 261 , and many BC and Supreme Court of Canada cases since have confirmed: All eyewitness identification is subject to certain inherent weaknesses and the fact finder must recognize this. Edwardson at para 37 citing the earlier decision of R . v.

Mastin (1991) 1991 CanLII 1138 (BC CA) , 65 CCC (3d) 204 (BCCA) Where a case against an accused depends wholly or substantially on the correctness of one or more eyewitness identifications of the accused which the defence allege to be mistaken, the fact finder must apply special caution (sometimes referred to as "great care") before convicting in reliance on such identification.

Edwardson para. 42 The underlying rationale for this recognition of inherent weaknesses and the need for special caution (or great care) is the past miscarriages of justice resulting from erroneous eyewitness identifications; the fact finder should be aware of the rationale. Edwardson para. 50 [ 122 ] In R . v.

Virk [1983] BCJ 713 (BCCA) the Court of Appeal at para. 27 provides a helpful outline from the Ontario Model Jury Charges of some of the factors the fact finder should consider in assessing identification evidence. [ 123 ] In this case, the guilt of Valencia Nielsen consists entirely on the eyewitness identification of three witnesses. [ 124 ] P.C. Kask testified that her eyesight was adjusting to having her glasses knocked off by Rosemary Wallace and she was recovering from the unexpected kick, so that she could not be certain that it was Valencia Nielsen who kicked her. [As noted in reviewing P.C.

Kask's evidence, the officer had not seen Valencia Nielsen earlier that evening or ever before.] [ 125 ] In the case of P.C. Shaw, his opportunity to observe Valencia before and during the kick was fleeting. Almost immediately after the kick, P.C. Shaw was sprayed accidentally with pepper spray by P.C. Kask. He had no vision and lost track of the kicker. The next time he saw Valencia Nielsen was at the jail. It was there that he probably wrote down a description of her. He was in no condition to write a description at the laneway. [ 126 ] P.C.

Foster described the kicker as having a slight limp, which is very different from the pronounced disability I observed in the courtroom. The kick was totally unexpected, his observation time of the assailant was brief and he quickly lost sight of the kicker. At the same time, P.C. Foster was also struggling to keep hold of Joseph and Paul Nielsen against the fence. He then received a mild dose of pepper spray.

[ 127 ] In addition, Serena Nielsen, who the defence says kicked P.C. Kask was not arrested. This meant that none of the eyewitnesses had an opportunity to compare what Serena and Valencia looked like that evening. [ 128 ] No line-up was held which may have supported the initial identifications. The three accused were unknown to the police officers. There are no admissions of guilt or other evidence supporting the guilt of Valencia Nielsen. [ 129 ] I also place considerable reliance on the evidence of Valencia Nielsen. Ms.

Nielsen would have to be a very clever actor to have demonstrated the effects of her physical disability so convincingly at trial. Although there is no independent medical evidence, it is likely she had similar physical characteristics on June 11, 2001. [ 130 ] The three police officers honestly, but perhaps mistakenly, have identified Valencia Nielsen as the kicker. THE REASONABLE DOUBT PRINCIPLE [ 131 ] In R . v. Guess 2000 BCCA 547 (CanLII) , [2000] BCJ 2023 , Mr. Justice Hall discussed R . v.

Lifchus , 1997 CanLII 319 (SCC) , [1997] 3 SCR 320 , 118 CCC (3d) 1 . [ 132 ] In Lifchus , Cory, J. wrote that the fact finder should convict if they were "sure" that the accused committed the offence. [ 133 ] The trial judge in Guess had said that a reasonable doubt is a doubt that is rational and reasonable under the circumstances of the case and went on to use the term "firmly convinced", approved by Ginsburg, J. in Victor v. Nebraska (92-8894), 511 U.S. 1 (1994). [ 134 ] Hall, JA. confirmed that "firmly convinced" was equivalent to "sure".

Guess at para. 25 [ 135 ] Based on the weaknesses in the eyewitness identification discussed previously and the evidence of Valencia Nielsen, I cannot be sure that the accused committed the offence. I am not firmly convinced of her guilt and I therefore find her not guilty of the assault of P.C. Kask. [ 136 ] I have based my verdict on the weakness of the Crown evidence and have not taken into account the evidence of Serena Nielsen. That is because I don't believe her. [ 137 ] Serena Nielsen was very uncomfortable giving evidence. This may have been because she was admitting to have committed an assault of P.C.

Kask or because she was lying about the assault out of some misguided family loyalty to protect her sister, Valencia. [ 138 ] She did not seem to recall very much about what had occurred in the lane. It seems likely she should have been able to recall a lot more of what had occurred if she had actually been in the lane and directly involved. [ 139 ] The push/kick she described was very different in kind and force than that described by P.C's Kask, Shaw and Foster. Her evidence was almost completely lacking in detail about anything other than her

part in the assault on P.C. Kask, which Valencia Nielsen was charged with, and even that part of her evidence she kept very simple. [ 140 ] It is likely that Serena Nielsen did not assault P.C. Kask and has given this evidence to help raise a reasonable doubt about Valencia's guilt. [ 141 ] However, mere disbelief by me of Serena Nielsen's evidence that she kicked P.C. Kask does not constitute proof that the evidence was false in the sense of being fabricated. [ 142 ] Disbelief in this case does not add to the weight of the Crown evidence that Valencia Nielsen was the kicker.

My rejection of Serena Nielsen evidence means that I treat her evidence as if it had not been given. [ 143 ] See R . v. Davison and others (1974) 1974 CanLII 787 (ON CA) , 20 C.C.C. (2d) 424 (OCA) for a discussion of the principles supporting these conclusions. See also R . v. Webster

(1986) BCJ 75 (BCCA) . [ 144 ] If there was independent proof of fabrication or the subornation of perjury by a party in support of her defence, a consciousness of guilty may be inferred although it is not conclusive evidence of guilt. R . v. Watt (1905) 20 Cox C.C. 852 cited in Davison at page 428. [ 145 ] In this case, there is no independent proof of fabrication or suborning of perjury which would permit me to draw an adverse inference. Therefore the reasonable doubt that I have regarding Valencia Nielsen has not been weakened and the not guilty verdict remains.

OBSTRUCTION OF A PEACE OFFICER [ 146 ] The charges of obstruction, the assault of P.C. Kask by Ms. Wallace and causing a disturbance are related to the powers given to P.C. Kask and P.C. Vilkas by the Motor Vehicle Act , Offence Act and Criminal Code of Canada . [ 147 ] In the laneway, Joseph Nielsen had produced a driver's licence and given a registration and insurance document for the Honda to P.C. Kask, as required by s. 33 (1) of the Motor Vehicle Act . According to P.C. Kask, he had given his address verbally.

Although he hadn't stated his name, he had provided a B.C. photo licence with his name on it. [ 148 ] When members of his family arrived in the laneway, P.C. Kask and P.C. Vilkas were trying to confirm the correct name and address of the owner of the Honda. This is required of the driver by s. 73 (2). They were entitled to continue investigating whether his driver's licence was current, whether it was suspended, his impairment, if any, from alcohol or drugs, whether the car was properly licenced and insured, and the mechanical fitness of the car. See R . v.

Ladouceur (1990) 1990 CanLII 108 (SCC) , SCJ 53 at para. 60 (SCC) .

[ 149 ] (Although not specifically mentioned in Ladouceur , the officers may also have had the authority during the random stop, to ascertain whether Joseph Nielsen had permission to drive the Honda.) [ 150 ] P.C. Kask was entitled to direct Joseph Nielsen to the front of the Honda and away from family members in order to continue her investigation. Joseph was not entitled to apply force to P.C. Kask in response to that request and her placing a hand on his upper body directing him forward. The law relating to wilfully obstructing a peace officer in the execution of her duty "obstruct" in s. 129(

a) means: to impede; to interpose impediments to; the hindrance or frustration of some act or service; as to obstruct an officer in the execution of his duty. Black's Law Dictionary 5 th edition, quoted with approval in R . v. Soltys [1980] BCJ 909 (BCCA) at para. 11 . the concept of duty as described in s. 129(

a) is a broad one. R . v. Noel [1995] BCJ 1852 (BCCA) at para. 14 . whether a peace officer is in the execution of her duty will depend in each case on the nature of her activities at the time she is obstructed. Noel at para. 17. the unlawful conduct is conduct undertaken with the intention to obstruct the peace officer in the execution of her duty; and the intention to obstruct must be with the knowledge of the accused that

a) the person obstructed is a peace officer and

b) the officer is engaged in the execution of her duty. Noel at para. 20. it is not necessary to prove that the intention to obstruct is tied to a specifically defined duty; it is sufficient that the accused is aware or knew at the time of the obstructive conduct that the peace officer was engaged in the execution of a duty . Noel at para.21 in most cases, the peace officer who is being interfered with will caution the offending person; such warning will lessen or eliminate the doubt of whether the offending person knows the officer is engaged in the execution of her duty. Noel at para. 22.

The law relating to causing a public disturbance [ 151 ] In R . v. Lohnes 1992 CanLII 112 (SCC) , [1992] SCJ 6 , the Supreme Court of Canada considered what constitutes a public disturbance under s. 175 (1)(a). ) McLachlin, J., for the court, cited with approval, the reasons of MacKeigan, CJNS in R. v. Swinimer (1978) 1978 CanLII 2293 (NS CA) , 40 CCC (2d) 432 (NSCA) in setting out the first four principles below (at para. 15) the Criminal Code speaks of disturbance of a public place, not of someone's mind.

"disturbance " is an objective term relating to the noise and confusion created by specified means, i.e. in the present case, by shouting and screaming. to convict, it must be shown beyond a reasonable doubt, from the nature and degree of shouting and screaming (in the present case) that the "peace and quiet" of the area has been disturbed. whether a disturbance has occurred is a question of fact and depends on the degree and intensity of the activity complained of and on the degree and nature of the peace which should be expected in the particular public place at the particular time; in other words the context in which the activity takes place must be considered.

Canadian courts have rarely, if ever, convicted absent an overtly manifested disturbance which affected people's conduct, be it found in the act itself or its effect, para. 17. [ 152 ] In

summary, to be unlawful, the conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question. This may be proved by direct evidence or inferred under s. 175(2), para.18. [ 153 ] The practical application of the criminal law suggests that the narrower "public disturbance"

interpretation is preferable to the broader "emotional disturbance" standard, para. 26. [ 154 ] Interference with the ordinary and customary conduct at or near the public place may consist in something as small as being distracted from one's work. But it must be present and must be externally manifested, and the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place, para. 31.

Paul Neilsen Obstructing a Peace Officer, PC Vilkas [ 155 ] When Rosemary Wallace told her father, Paul Nielsen, that Joseph was parked in the lane behind their house and was being hassled or harassed by police, the reaction of the Nielsen family was immediate. [ 156 ] Five members of the family quickly made there way to the lane where Joseph was stopped by the police. Two of Mr. Nielsen's sons were in the car, Joseph, who was the driver and Markus. [ 157 ] Seven members of the Nielsen family were in the lane, within a few minutes of the traffic stop. On Mr. Nielsen's evidence, he intervened and asked P.C.

Kask what the problem was. P.C. Kask, according to him, gave a responsive answer - they were investigating Joseph for speeding. Even if he used the words he said he used, he was telling P.C. Kask how to do her job: "Write him a ticket and I'm heading in."

[ 158 ] P.C. Kask was fully entitled to tell Mr. Nielsen to back off and stay out of the matter. Her traffic stop was not complete. [ 159 ] Paul Nielsen seemed to think there was nothing wrong with telling P.C. Kask, "Look dear, lose the attitude and we'll talk about it." [ 160 ] The gratuitous "dear" was intended to be disrespectful, not because he felt like he was dealing with one of his daughters. Mr. Nielsen was not dealing with one of his daughters. He was dealing with a uniformed police officer who was carrying out a traffic stop as part of her police duties. There is no question that P.C. Kask and P.C.

Vilkas were in the execution of their duty. Mr. Nielsen was not entitled to "protect" his son by questioning the police officers about how they were carrying out their duties. [ 161 ] I pause to note that Mr. Nielsen is not charged with obstructing P.C. Kask, but with obstructing P.C. Vilkas. The forgoing evidence is relevant to Mr. Nielsen's conduct toward the two police officers. P.C. Foster's evidence is that when he first spoke to P.C. Vilkas, that Paul Nielsen was about one foot away from her, standing over her (P.C. Vilkas is much shorter than Mr. Nielsen). Mr. Nielsen was telling P.C.

Vilkas to "write the fucking ticket and get the hell out". P.C. Vilkas asked P.C. Foster to assist her by getting Mr. Nielsen away. When P.C. Foster asked him to move away, Mr. Nielsen, who was described as agitated and upset said he could stand where he wanted and was not going anywhere. [ 162 ] P.C. Foster, warning Mr. Nielsen at this point that he was obstructing P.C. Vilkas moved Mr. Nielsen backwards, and he complied but remained hostile. Paul Nielsen continued to interfere with P.C. Vilkas as she attempted to deal with Joseph by shouting at her around P.C. Foster. [ 163 ] Mr.

Nielsen tried to get around P.C. Foster several times, and he continued shouting at P.C. Vilkas. [ 164 ] Paul Nielsen was told that the police had stopped his son Joseph for possible speeding; however a routine random stop is not confined to speeding. The officer is entitled to carry out the activities permitted by the Supreme Court of Canada in Ladoceur , above. [ 165 ] Paul Nielsen was entitled to remain in the lane if he did not obstruct the police officers.

His hostile questioning was not justified by his reasoning that because "my son was involved and if there was a problem I could help solve it and get an answer." [ 166 ] If Paul Nielsen wanted to assist his son and the police, he was required to stay well back from the officers while they questioned Joseph. [ 167 ] Paul Nielsen appeared to impede P.C. Vilkas from continuing her police duties as part of a traffic stop. He hindered the orderly investigation she was conducting.

His attempt at physical intimidation and loud shouting, along with his attempt to return to where she was standing, which was prevented by P.C. Foster, likely amounted to obstruction of P.C. Vilkas. [ 168 ] However, in his closing argument, Crown Counsel, Mr. Sweeney, asked that the obstruction charge against Mr. Nielsen be dismissed. He took this position because P.C. Vilkas, was not called as a witness and hence, did not testify that she was obstructed. [ 169 ] Although I am able to draw inferences from the evidence of others that P.C. Vilkas was obstructed, Crown counsel asked that Mr.

Nielsen be found not guilty. On that basis, I did not ask Mr. Nielsen's lawyer to argue this point and I find Paul Nielsen not guilty of the offence of obstruction of P.C. Vilkas. CAUSING A PUBLIC DISTURBANCE [ 170 ] The chaotic scene in the lane behind the Nielsen home was caused by Joseph Nielsen and the confrontational actions of the five Nielsens who came out in answer to Joseph's phone call. Rosemary Wallace, Valencia Nielsen and Paul Nielsen all spoke harshly to police officers at various times. Other women in the lane were also shouting and screaming at the police. Paul Nielsen's shouting at P.C.

Vilkas no doubt contributed to the lack of peace and quiet of the neighbourhood on an otherwise peaceful, sunny evening. [ 171 ] But it is far from clear whether it was the physical confrontation in the lane, the arrest of Joseph, the two assaults (or more) on P.C. Kask, the struggle at the chain link fence and the use of pepper spray which caused the disturbance or whether it was the shouting and screaming by Mr. Nielsen (and Ms. Wallace). [ 172 ] Mr. Nielsen contributed to the confrontation in the lane - both physically and through loud noise. Mr.

Nielsen's angry, agitated words which he shouted, were part of the interference with the ordinary and customary use of the lane. [ 173 ] In Lohnes , above, McLachlin, J. wrote that, to be unlawful, the conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question. This may be proved by direct evidence or inferred under s. 175(2), para.18 [ 174 ] A disturbance was likely caused by the conduct of various members of the Nielsen family (including Ms. Wallace).

However, the evidence of shouting and screaming is so intermingled with the evidence of the assault and obstruction that I am not firmly convinced that a disturbance was caused, to the necessary degree, by the shouting or screaming of Mr. Nielsen. [ 175 ] I find Paul Nielsen not guilty of causing a public disturbance. Rosemary Wallace Assault and Obstruction of a Peace Officer, P.C. Kask [ 176 ] The immediate response of the Nielsen family to Joseph's phone call, as discussed above, supports the Crown's case that the Nielsens went to the lane to intervene on behalf of Joseph.

Joseph was subject to a random traffic stop. If he was being hasseled or harrassed by the police, neither he nor any other person gave evidence to support such an allegation.

[ 177 ] Rosemary Wallace became involved with P.C. Kask from the time Ms. Wallace arrived in the lane, in answer to Joseph's call for assistance. Ms. Wallace interfered with P.C. Kask from carrying out her traffic stop investigation. I do not believe Ms. Wallace when she says she merely ran over to where P.C. Kask was trying to handcuff her brother. [ 178 ] P.C. Shaw confirmed P.C. Kask's evidence of Rosemary Wallace being upset and agitated. He also confirmed Ms. Wallace saying the police had no right to stop the Honda on "her street" and that the police needed to deal with real crime on the Downtown Eastside.

I think it likely that Ms. Wallace did swear at P.C. Shaw and knock on his chest. [ 179 ] P.C. Shaw confirmed P.C. Kask's evidence that Ms. Wallace assaulted P.C. Kask from behind by lunging at and jumping on her upper body and grabbing her neck. [ 180 ] P.C. Foster did not see Rosemary Walker assault P.C. Kask, but that is probably because just prior to seeing P.C. Kask bent over Ms. Wallace, P.C. Foster had been involved in the struggle at the chain link fence trying to handcuff Joseph. [ 181 ] The evidence called by the defence witnesses does not assist Ms. Wallace in her denial of having assaulted P.C.

Kask. [ 182 ] Paul Nielsen's evidence was that he did not see what Ms. Wallace was doing prior to seeing her lying on the ground with P.C. Kask applying pepper spray. [ 183 ] Valencia Nielsen testified that she did not see what Ms. Wallace was doing before P.C. Kask applied pepper spray to Ms. Wallace. [ 184 ] Serena Nielsen said she saw Ms. Wallace taken to the ground and being pepper sprayed by P.C. Kask but did not see what Ms. Wallace was doing before that. [ 185 ] Based on my review on the evidence, including the evidence of Ms.

Wallace's attitude toward the police during the random stop, and the confirming evidence from P.C. Shaw, I am firmly convinced that she did assault P.C. Kask. [ 186 ] I think it likely she was then pepper sprayed and attempted to renew the assault. In doing so she punched or hit P.C. Kask in the head. [ 187 ] Mr. Sweeney, for the Crown, said that his position was that the evidence supported the conclusion that P.C. Kask had applied the spray before Rosemary Wallace punched or hit P.C. Kask, so that the second assault may have been unintentional.

He therefore asked that I not take into account that punch as part of the findings supporting as assault conviction. Based on that concession, I therefore find Ms. Wallace guilty of assault of P.C. Kask which consisted of applying force to the officers back and throat. The assault took place near the chain link fence when P.C. Kask was attempting to handcuff and arrest Joseph Nielsen. OBSTRUCTION [ 188 ] The basis for the obstruction allegation is P.C. Kask's evidence that Ms. Wallace was standing too close to her, shouting at her and refusing to move away when she asked her to do so. P.C.

Kask said this prevented her from continuing with her traffic stop investigation. [ 189 ] The confrontation between P.C. Kask and Rosemary Wallace was of a short duration. After the initial few verbal exchanges, P.C. Shaw arrived and he asked a group of about 5 or 6 women including Ms. Wallace, to let the officers carry out the traffic stop without interference. Fairly soon after, he convinced them to move away from where P.C. Kask was standing by the Honda and to the rear of one of the two police cars. [ 190 ] The suspension by P.C.

Kask of her continuing traffic stop investigation lasted for a short period of time. On being told by P.C. Kask that she was going to be arrested for obstruction, Ms. Wallace moved to an area away from P.C. Kask and began a conversation, albeit confrontational, with P.C. Shaw. I take P.C. Kask's statement that she wanted P.C. Shaw to arrest Ms. Wallace for obstruction to amount to a warning that if Ms. Wallace did not leave the immediate area and stop shouting she would be arrested. This was the type of situation where the peace officer who is interfered with should caution the offending person.

Noel at para. 22 [ 191 ] Ms. Wallace did leave and did stop shouting which permitted P.C. Kask to continue her investigation. As such, the Crown has not proved Rosemary Wallace obstructed P.C. Kask. I find her not guilty. CAUSING A DISTURBANCE [ 192 ] As noted regarding Paul Nielsen, above, the evidence of shouting and screaming was intermingled with the evidence of the assault and obstruction. This is also true for the case against Ms. Wallace. I am not convinced the disturbance was caused, to the necessary degree, by Ms.

Wallace's shouting and screaming. [ 193 ] I find Rosemary Wallace not guilty of causing a public disturbance.

SUMMARY [ 194 ] I find Paul Nielsen: 1) Not guilty of obstructing a peace officer. 2) Not guilty of causing a disturbance. [ 195 ] I find Rosemary Wallace:

1) Guilty of assaulting a peace officer, P.C. Kask. 2) Not guilty of causing a disturbance. 3) Not guilty of obstructing a peace officer, P.C. Kask. [ 196 ] I find Valencia Nielsen: 1) Not guilty of assaulting a peace officer, P.C. Kask. ______________________ Ross Tweedale, P.C.J.