R. v. Hrvacanin Date:, 2014 BCPC 396

Citation: R. v. Hrvacanin Date: 20140529 2014 BCPC 0396 File No: 201256-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VELJKO BRANKO HRVACANIN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. A. OULTON Counsel for the Crown: J. Lester Counsel for the Defendant: J. Myers

Place of Hearing: Surrey , B.C. Dates of Hearing: Feb. 5, 6, 20, 21; Aapr. 15, 17, 24, May 15, 2014 Date of Judgment: May 29, 2014 [ 1 ] THE COURT : Veljko Hrvacanin is charged on a four-count Information, 201256, with two counts of obstruction, one count of assaulting a peace officer, and one count of attempting to take a peace officer's gun, all while the peace officers were engaged in the execution of their duties. [ 2 ] This is my ruling on a Charter voir dire in this case in which defence alleges breaches of Mr.

Hrvacanin's rights under s. 7, 8, 9 and 10(a), and seeks either a remedy under s. 24(2) or a stay of proceedings under s. 24(1). [ 3 ] The issues raised are: 1. Was Mr. Hrvacanin detained? 2. If so, when and under what authority? 3. Was the detention arbitrary? 4. Was there a breach of s. 10(a)? 5. Was the arrest lawful? 6. Was the manner of arrest unreasonable? In other words, was there a breach of s. 7 on these facts? [ 4 ] Defence bears the onus of proof on a balance of probabilities.

FINDINGS OF FACT [ 5 ] On July 25th, 2013, between 5:00 and 5:30 p.m., an anonymous caller called 9-1-1 to report that a Caucasian male in his mid- 40's, approximately five-seven or five-eight, wearing a grey tank top and black shorts, was driving a mountain bike erratically in traffic in the vicinity of 88th and King George, braking in front of buses. The male was "possibly suicidal", the caller reported, and had been behaving in this fashion for several minutes. [ 6 ] Mr.

Nash, a civilian in the area, observed a male of the same physical and clothing description at the same time and place, riding his bike oppositional to traffic at rush hour on King George “playing chicken with buses and cars”. He observed the man for about five minutes. He was not the anonymous caller to 9-1-1. [ 7 ] Cst. Sidhu responded to this "check well-being" call. Cst. Sidhu, at the time, was an officer with less than a year's experience, at the end of his 12-hour shift that day (6:00 a.m. to 6:00 p.m.) He attended alone, in uniform, and in a marked police vehicle.

He arrived at 5:12 to 5:15 p.m. and searched the area for ten to 15 minutes but he did not find anyone matching the description of the anonymous caller to 9-1-1. [ 8 ] At around this time, he heard a report over the radio of a cyclist being hit by a bus three blocks away.

Thinking it was perhaps the person he was looking for, he was leaving the area to check when he saw on the sidewalk, travelling, riding standing up, on a mountain bike without a helmet, wearing a grey tank top and black shorts in a fashion of dipping the bike low to the right, then low to the left, a Caucasian male in his mid-40's approximately five-foot-seven or five-foot-eight, matching the description of the caller to 9-1-1. [ 9 ] Cst.

Sidhu was travelling northbound in his marked police vehicle but he did a U-turn in the intersection, pulled his police car over to the left lane, put its lights on, got out of the car and ran to the median, shouting at the man, "Hey, stop, police." He yelled again, standing on the concrete median about 50 to 80 metres north of 88th, "Stop. Police. What are you doing? You're going to hurt yourself." At this point, the man was on his bike right in front of the officer but had not reacted to the officer's shouts. [ 10 ] Cst. Sidhu wanted to speak with him as soon as possible.

He felt he matched the 9-1-1 call description and his driving pattern on the sidewalk gave the officer concern that he could take his bike into traffic again. The man rode past and Cst. Sidhu shouted again, "Stop. What are you doing? You're going to hurt yourself." The man stopped and looked at Cst. Sidhu. The light turned red for northbound traffic and Cst. Sidhu ran towards the sidewalk where the man was. The man stopped and said, "I didn't do anything. What happened?" His tone was rude and his manner aggressive. He raised his hands in the air and said again, "I didn't do anything." Cst.

Sidhu said, "Sir, what are you doing? There's so much traffic, you're going to hurt yourself." He stayed ten feet away from the man. [ 11 ] The man started pacing back and forth. He was sweating profusely. "His tank top was almost wet," said Cst. Sidhu. Cst. Sidhu asked for his name. In testimony, he explained: "I need to know who I'm dealing with," he said. "Identity is primary”. So he asked: “Sir, what's your name?" The man would not look at him. He was looking around, looking over his shoulder, looking as if he might flee at any moment. "Sir, what is your name?

You shouldn't be doing this, you're going to hurt yourself." [ 12 ] Cst. Sidhu had not requested backup at this point. He asked for the man's name three or four times, and the man kept saying, "I didn't do anything. What did I do? What do you want?" Finally, Cst. Sidhu tells him, "We got a call. You're slamming your brakes into traffic. You're not wearing a helmet." The man looked back and forth, sweating, making arm gestures in the air. "No, no, I didn't do anything." Cst. Sidhu approached closer to the man, about four or five feet away.

He called dispatch on his portable radio and advised that the man was not telling his name and described the man's demeanour. The man said, "I don't have any ID. What you want? I didn't do anything." He kept repeating these things. Cst. Sidhu persisted in asking for his name. He heard on his portable radio that a police

dog officer was coming to assist. The man said, "What do you want? I don't have any ID on me. Why do you want to know my name?" Cst. Sidhu said, "I need to ID you. I need to know who I'm talking to." [ 13 ] Sgt. Shaw arrived; he arrived at 5:35 p.m. He was aware of the contents of the initial anonymous 9-1-1 call and he was providing assistance to Cst. Sidhu. He had never met Cst. Sidhu before. Sgt. Shaw noted the man was very agitated and sweating profusely. He was looking around and would not make eye contact. He appeared to Sgt. Shaw to be intoxicated and he looked like he might flee. [ 14 ] Mr.

Nash was on the way to the bus stop at 88th and King George with his bike when he observed the man he had seen earlier “playing chicken” with traffic on the grass being spoken to by police. Cst. Sidhu warned the man, "If you're not telling me your name, you're under arrest for obstruction." The man took a step backwards. "No, no, I'm not under arrest." His tone was rude and aggressive still. Sgt. Shaw joined in asking the man for his name. The man said his name. They heard Waco (phonetic) Hrvacanin. It was mumbled, so Cst.

Sidhu asked him to spell it. “V-a-c-o H-a-r-v-a-c-a-n-i-n, 17:25, date of birth January 13th, 1966”, was the notation in Cst. Sidhu's notebook. The second time that Mr. Hrvacanin gave his name, Cst. Sidhu said he gave it very clearly and loudly. He also gave an address, 10970 128th Street in Surrey. [ 15 ] Cst. Sidhu went to run the name with dispatch, leaving the man with Sgt. Shaw, who directed the man to the grass. No entries matched that name. [ 16 ] Cst. Sidhu returned and said, "Sir, you have to tell us your real name." "No, no, I told you my name. And I've already spoken with Cst.

Lee." "Give me your name again." Cst. Sidhu made another request to dispatch, this time with the Cst. Lee information. Nothing came back. Cst. Sidhu said, "You're under arrest for obstruction." [ 17 ] Cst. Sidhu moved to Mr. Hrvacanin's right side, Sgt. Shaw to his left. A lengthy and difficult struggle ensued. [ 18 ] Mr. Nash watched with an unobstructed view from the bus stop, ten to 15 metres away, and confirms the officers' general view of the chronology of events.

That is, first, there was one police officer for about two minutes, then two police officers for about two to three minutes, which is when the struggle happened, and finally a third police officer, Cst. Shaw, arrived on the scene. Cst. Shaw had a taser and announced that, but did not use it. [ 19 ] The man resisted arrest very aggressively. The police were yelling, "Get down. You're under arrest. Stop resisting." The man knocked Cst. Sidhu in the shoulder, and the blow hit his radio off. Cst. Shaw heard scratching on the radio, and that is what brought him, a third officer, to the scene.

He arrived at 5:40 to 5:45 p.m. Mr. Hrvacanin also elbowed Cst. Sidhu in the stomach. Mr. Nash described Mr. Hrvacanin in this exchange as "hulk-like, very aggressive. He looked under the influence. He kept lifting his arms." [ 20 ] At one point, Sgt. Shaw felt that his gun, which was in his right drop-leg holster, was being touched. He could feel the barrel against his leg and the gun pulled away from the holster. Cst. Sidhu, who saw Mr. Hrvacanin reach with his left hand to the gun in the drop-leg holster on Sgt. Shaw's right leg, saw that and saw Mr.

Hrvacanin unlatch the thumb-latch from the top of the gun, and he yelled, "Gun. Gun." [ 21 ] The two police wrestled with Mr. Hrvacanin until they were close enough to the Chevy Tahoe van for Sgt. Shaw to release the police dog, A.J., who fastened first on the man's right thigh and then on his left calf. [ 22 ] Cst. Shaw arrived on the scene when the police dog, A.J., was out and helped the two police officers on scene handcuff the man. The man then went into convulsions on the ground. He was shaking, really hot and sweaty, and thrashing. Cst.

Shaw accompanied him to the hospital where he was given medication to reverse the effects of whatever was going on with him. He remained conscious throughout. [ 23 ] Cst. Shaw got a name with a proper spelling at 18:41. Veljko Hrvacanin, V-e-l-j-k-o H-r-v-a-c-a-n-i-n. He said when he received the name. it was the first time anything the man said was intelligible to him. [ 24 ] After the arrest of Mr. Hrvacanin, Sgt.

Shaw noted the initial bar of his holster was flapped down, which was the first point of his three-point security system on the holster. [ 25 ] There were some discrepancies in the testimony of the four witnesses called by the Crown. These were due mainly to their different perspectives and different time of involvement with the incident. None were material to my findings of fact on this application. [ 26 ] I find that the man stopped by Cst. Sidhu, Mr. Hrvacanin, was the same man who had earlier been observed playing chicken on his mountain bike in traffic. [ 27 ] I find that Mr.

Hrvacanin was also "on" something. That is, I infer he consumed some intoxicating substance based on all four witnesses' descriptions of his physical state and his aggressive demeanour. “Eyes massive, pupils tiny, and sweating profusely”, according to Cst. Shaw. [ 28 ] I do not accept Mr.

Hrvacanin's testimony in the following four areas: when he says he was not the one “playing chicken” in traffic earlier; when he says he was not “on anything” that day; when he says he had a black bag with identification in it with him on that day which has gone missing; and finally, I do not accept his portrayal of the police officers that day, in particular, Sgt. Shaw and Cst. Sidhu, as engaged in random, spontaneous and sadistic targeting of an innocent civilian, him. In particular, and with respect to the release of the police dog from the Chevy Tahoe van by Sgt.

Shaw, based on all of the evidence I heard, Mr. Hrvacanin's story was not credible, based as it was on an assertion that the police that day were engaged in interfering with his liberty for no reason. [ 29 ] The reliability of Mr. Hrvacanin's account is also suspect, given that he estimated that this encounter took place at 3:30 p.m., two hours earlier than it did, and given his mental and physical state at the time.

THE ISSUES 1. Was Mr. Hrvacanin detained? If so, when? [30] Mr. Hrvacanin was detained when he obeyed Cst. Sidhu's direction and stopped on his bike. Cst. Sidhu said, "I would not havelet him go." A detention occurs when the police, by demand or direction, assume control over the movement of a person. R. v. Hufsky, (SCC), [1988] 1 SCR 621. 2. Under what authority? [31] Cst. Sidhu was asked by Crown, and said he was aware of his powers under the Criminal Code, the Motor Vehicle Act and theMental Health Act. Cst. Sidhu believed he was dealing with a possibly suicidal or at least unstable man.

The man was also "on"something. The difficulty arises in this case because Cst. Sidhu, other than using the generic phrase, "You're going to hurt yourself,"several times, did not tell Mr. Hrvacanin that he was concerned about his mental health. [32]

Section 28 of the Mental Health Act allows an emergency protective apprehension by a police officer, if the police officer issatisfied from personal observation, or information received, that the person

a) is acting in a manner likely to endanger that person's ownsafety or the safety of others, and

b) is apparently a person with a mental disorder. The police officer is to take the person he or sheapprehends immediately to a physician for examination, and the person apprehended must be released if a physician does not complete amedical certificate. [33] Police powers of protective apprehension under s. 28 of the Mental Health Act are different from, but analogous to, powers ofarrest under the Criminal Code. I find, therefore, that police may also briefly detain an individual under s. 28 of the Mental Health Act,provided that they reasonably suspect that the person may fit the criteria under that

section for a protective apprehension. The briefdetention will allow the police to assess whether an apprehension, a much greater interference with liberty, is necessary. It balances theright of the individual to be left alone, with the necessity to curtail that freedom if an individual is at risk of causing harm to himself orothers. [34] With respect to a protective apprehension under the Mental Health Act, it was clear that this concern was uppermost in Cst.Sidhu's mind.

In order to exercise his powers of apprehension under s. 28 of the Mental Health Act, does the police officer need to knowthe name of the person with whom he is dealing? As he testified, “eventually they are going to need to know his name”, meaning, “if Iapprehend someone under this section, at some point a doctor or someone at the hospital will want to know his name”. But he agreedthat it was not a precondition to a protective apprehension that he know a person's name. This must be the case.

I can imagine timeswhere a psychotic and/or suicidal person would not readily provide his or her name, but a police officer would still be justified inapprehending them under s. 28 of the Mental Health Act. However, Cst. Sidhu did not protectively apprehend Mr. Hrvacanin under theMental Health Act. [35] What of the fact that he was riding his bike without a helmet on the sidewalk, two ticketable infractions under the MotorVehicle Act? Cst. Sidhu did not tell Mr. Hrvacanin that he was going to issue him a violation ticket and needed his name for thatpurpose.

In fact, he did not issue him a violation ticket, or testify that he intended to do so (see: R. v. Moore, (SCC),[1979] 1 SCR 195). The fact that he could have done so was put in evidence. However, I have to judge a police officer by what he did,not by what he could have done, and this relates both to the Motor Vehicle Act and the Mental Health Act in this case (see: R. v.Whitaker 2008 BCCA 174; R. v. Dhillon 2012 BCCA 254). Where, as here, there is an interference with an individual's liberty throughdetention, a common-law investigative detention can only be lawful where the police officer's conduct: 1.

Falls under the general scope of any duty imposed by statute or recognized at common-law, and; 2. Such conduct involves a justifiable use of powers associated with the duty. R. v. Mann, 2004 SCC 52 , [2004] SCJ No. 49at para 24; R. v.Dedman (1985), 20 CCC 3d 17 (SCC) at pp. 119-120. [36] As to the subject of execution of duty, the police have a “mandate to investigate crime and keep the peace, and therefore, policeofficers must be empowered to respond quickly, effectively and flexibly to the diversity of encounters experienced daily on the frontlines of policing”: R. v. Mann, supra, at para 16.

The powers and duties of a peace officer emanate from common law and from statute. The general duty of a peace officer is to preserve the peace as it relates to the protection of life and property: R. v. Dedman, supra. [37] I find that the authority to detain Mr. Hrvacanin in these circumstances came from a police officer's common-law duty topreserve the peace and protect life and property. The police conduct in fulfilling that duty must involve a” justifiable use of powers”. [38] Here, the use of powers was wanting to know Mr. Hrvacanin’s name and requiring him to give it.

The legitimate purpose inwanting to know the man's name was to assist Cst. Sidhu in assessing the man's mental health history, including any previous suicidalityor violence. This would have had, as its focus, the safety of the man, Cst. Sidhu, and all members of the public in the vicinity. [39] The information he sought would have also possibly permitted Cst. Sidhu to perhaps conclude, depending on all thecircumstances, that this was a case of mistaken identity and the man he had stopped was not, in fact, the man who had been “playingchicken” in traffic earlier.

In the context, it was an objectively necessary, and minimally invasive, use of police powers. 3. In this context, what about s. 10(a)? [40] The Supreme Court of Canada decision of R. v. Suberu affirmed the right to be advised of the reason for detention immediatelyupon being detained. The primary benefit of s. 10(

a) is to permit an informed decision as to whether to exercise the s. 10(

b) right tocounsel: R. v. Latimer (1997), (SCC), 112 CCC 3d 193 (SCC) at 205. However, the context here was not theinvestigation of a crime. Mr. Hrvacanin was detained, but under the police common-law power to preserve the peace, protect life andprotect property. There were concerns about his mental state, his safety and the safety of others, as a result of the behaviour he had beenengaging in, in the previous half-hour.

[41] In rapidly developing situations on the street, it would be unreasonable to expect police to provide the suspect with precise andcomprehensive details as to why they are being detained. In this case, Cst. Sidhu told Mr. Hrvacanin, "You're going to hurt yourself," afew times, and eventually, "We had a report you were braking in traffic." That was in fact the reason he was being detained, and he wastold. I do not find a breach of s. 10(

a) on these facts. 4. Was the detention arbitrary? [42] Police may investigatively detain someone briefly, provided they reasonably suspect the person to be involved in a criminaloffence, and that detention will not be arbitrary, provided there is an “objective constellation of factors” which justifies it. [43] In this case, Mr. Hrvacanin was not detained for the investigation of a suspicion that he had committed a crime; rather, he wasdetained on an “objective constellation of factors” because Cst.

Sidhu reasonably suspected that his mental state could be unstable, andhis identity would have been a crucial tool in assisting with that endeavour. Cst. Sidhu wanted to speak with Mr. Hrvacanin, wanted toassess his mental state and, responding alone in rush-hour traffic to a situation where a man was possibly suicidal, he wanted to knowwho the man was for the man's safety, for officer safety and for public safety. [44] I have considered the argument that it is not so clear at this point that Mr. Hrvacanin was under a legal obligation to provide hisname to the police officer: R. v.

Greaves BCCA 2004 484 at para 50. On these facts, and in this context, with no identification on hisperson, behaving as he was, the police would have been remiss in their common-law duty if they had not pursued more informationabout this individual before allowing him to go on his way. In these circumstances, the identification procedure was essential todetermining whether Cst. Sidhu should bring the detention to a close. This was a means of investigation that was likely to confirm ordispel suspicions quickly. In the circumstances, Mr.

Hrvacanin was under a legal obligation to provide his name. [45] On the facts of this case though, Mr. Hrvacanin did provide his name to Cst. Sidhu. A detention is not arbitrary if it isauthorized by law, either statute or common-law. In the circumstances here, the brief detention under police common-law duty, whichbegan when Mr. Hrvacanin stopped his bike in response to Cst. Sidhu's request, was not arbitrary, and there is no breach of s. 9. 5. Was the arrest for obstruction lawful? [46] An arresting officer must have subjective reasonable and probable grounds on which to base an arrest.

Those grounds must, inaddition, be justifiable from an objective point of view. However, arresting officers are not required to establish a prima facie case forconviction before making an arrest: R. v. Storrey, (SCC), [1990] 1 SCR 241 at para 17. [47] Cst. Sidhu lawfully detained Mr. Hrvacanin under a common law duty to preserve the peace and protect life and property. Hewas concerned for his own safety and for that of Mr. Hrvacanin, and so after compelling him to stop and saying, "You're going to hurtyourself," he asked him repeatedly for his name.

He did this because he wished to know the background of the person he was dealingwith before proceeding further. [48] I note that English is not Cst. Sidhu's first language, and that Mr. Hrvacanin's last name is unusual in spelling andpronunciation, even for native English speakers. It begins with three consonants. Even native English speakers could mishear a "B" fora "V" in an unusual name. In a high-pressure situation as described, Mr. Hrvacanin may not have misspelled his own name but I amcertain that Cst. Sidhu was entirely sincere in how he heard it. Subjectively, Cst.

Sidhu had a basis for believing he was being given afalse name, and objectively, Mr. Hrvacanin was sweating profusely and looking around in a manner that suggested to police that hemight flee at any moment. His demeanour had been rude and belligerent from the start, despite the fact that he did comply with theofficer's request that he stop. He appeared to be “on something”. On an objective view of this situation, there were grounds to arrest Mr.Hrvacanin for obstruction. 6. Was there a breach of s. 7?

Was the manner of arrest unreasonable? [49] Police officers are authorized to use as much force as reasonably necessary to effect an arrest: s. 25 CCC. Given Mr.Hrvacanin's level of resistance to what I have found to be a lawful arrest, the force used was no more than was necessary. The two policeofficers involved in the initial struggle were using their hands to attempt to arrest Mr. Hrvacanin. This struggle lasted approximately twominutes. Sgt. Shaw released the police dog after both police officers either saw or felt Mr. Hrvacanin attempting to access the gunlocated in the holster on Sgt.

Shaw's right leg. [50] While release of the police dog could be said to be intended or likely to cause Mr. Hrvacanin grievous bodily harm, it occurredafter Cst. Sidhu and Sgt. Shaw believed on reasonable grounds that it was necessary to preserve them both from death or grievous bodilyharm. [51] As to s. 8, having found a lawful arrest, the police are entitled to confirm the identity of the person they arrested. I have notfound a breach of Mr. Hrvacanin's rights under any of the sections alleged. The Charter application is dismissed. (RULING CONCLUDED)