Her Majesty the Queen - v. -, 2012 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 003 Date: January 16, 2012 Information: 44660130 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - W.R.G.

Appearing: Bobbi Fehr For the Crown Barb Degenstein For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT P.S. KOLENICK , J _____________________________________________________________________________ BACKGROUND

[ 1 ] The accused is charged that he did, on or about September 25, 2010, at Saskatoon, unlawfully assault a peace officer while engaged in the lawful execution of his duty, contrary to s. 270(1) (

a) of the Criminal Code . [ 2 ] It is alleged by the Crown the assault had occurred by spitting. The police had located the accused hiding in a cramped, dark and dirty attic enclosure at a private residence. They were attempting to take him into custody on outstanding warrants. The Crown claims he was resistant to their efforts so that the officers had to exercise some force in order to effect the arrest. The accused concedes that he did indeed spit but it had not been his intention to do so at the peace officer.

Rather, he was choking on insulation fibre and spitting because the police had pushed his face into some insulation in the immediate vicinity, where it had remained for roughly five minutes while they were in that process. [ 3 ] Therefore the following issues have arisen: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had the necessary intent to assault the peace officer by spitting? Was the accused able to rebut the presumption that, by his actions, he had intended to assault the peace officer by spitting?

EVIDENCE FOR THE CROWN Constable Cory Goodwin [ 4 ] At 1:37 p.m., Constable Goodwin, a canine handler with Saskatoon Police Services was dispatched to 207 Avenue H South regarding the accused. Other peace officers attended as well. He did not enter the premises immediately, but waited outside. There were several persons in the premises. Eventually he received confirmation from one of the sergeants that they had permission to enter to search for the accused and went in the front door with other officers as well. Once inside the accused was not immediately located.

The layout in the house was unusual, with several cut outs in walls, and a hidden stairwell. The accused was not easy to locate because there were a lot of hiding places. [ 5 ] The officer made his way in the course of the search to the attic, and had not located him in his initial somewhat cursory check there. He called out “police” or words to that effect and there was no reply. [ 6 ] In due course the officer returned to the attic because they were running out of search options and he was concerned he might be there. He hoisted himself up the entry to the attic and looked into it. It was dark and dirty.

The officer believed the accused might be hiding at the far end of the attic. Both he and his colleague, Constable Olafson, crawled across a 2 x 6 beam in order to search a spot across the attic around some insulation where someone might be hiding near to a second attic area. Constable Olafson shouted “City Police” and they both shut off their flashlights. The accused, who was identified in court, was located by Constable Olafson in the second attic. Both officers struggled to subdue and control him so that he could be taken into custody.

They were attempting to deal with the accused, while balancing on a beam, because there was no other solid place under foot. All the while the accused was struggling, flailing, kicking his feet and he had also spit on the officer. [ 7 ] In order to get control of the accused Constable Goodwin had been required to use two or three knee blows and three or more elbow strikes on the accused. The purpose of the force had been to gain compliance and control of the accused.

He believed that nature and extent of force had been necessary for that stated purpose. [ 8 ] There were other sharp objects in the attic including nails in the ceiling. The accused had continued to struggle and refused

to co-operate in his removal. As they made their way back to the attic opening, another hole came open off the beam. He was deposited on a mattress through that new hole which had been positioned for that purpose on the floor below. Constable Goodwin had suffered some cuts and scrapes from the nails as a result of this encounter. [ 9 ] In cross-examination Constable Goodwin confirmed that the lighting at the outset had been poor but he could see Constable Olafson’s whole shape. They had both shut off their flashlights and when Constable Olafson lit his, it was shone down into the sub- attic.

As well, before any search had occurred at the premises, one of the sergeants had confirmed consent had been granted for that to occur. [ 10 ] Once they were in the attic and had both crossed using the beam for support, Constable Olafson had aimed the light down into the second attic area and yelled “police” or words to that effect. Constable Goodwin could see somewhat from that light. Suddenly he believed Constable Olafson was getting dragged down through the attic ceiling and grabbed him by his ankles. He could see very little except there had been a drop of some nature.

Therefore, he held onto Constable Olafson’s ankles and pulled him up as he was holding onto the accused. Constable Olafson pulled the accused up to where they were located and he was placed near the beam between the two peace officers. As well he was placed in cuffs, by Constable Olafson at that spot, from behind while kicking and struggling. He agreed that the accused’s face may have been in the insulation. [ 11 ] He advised also that the force applied to the accused had been on initial contact at the far end of the attic, from a kneeling position. The accused had been spitting, kicking and punching.

He was of the view that the spit had been directed at him even though everyone was suffering from breathing problems in the dust. He advised also that it was dark and he did not see Constable Olafson strike the accused and had not seen everything the officer had done. Further, he did not see the accused get his leg stuck in the removal process. Constable Kelly Olafson [ 12 ] Constable Olafson is also a canine handler with the Saskatoon Police Services. He had arrived at the scene and remained outside until consent to conduct the search was confirmed by one of the sergeants.

It was a difficult place to search with hidden rooms. [ 13 ] In due course he had hoisted himself up to look into the attic and was accompanied by Constable Goodwin. Once they were in the attic it was completely dark. The two officers made their way across the attic on the beam in order to check the insulation as a possible hiding spot. He found a sub-attic at the other side and tried to shine his flashlight down into it. When he adjusted the beam somewhat there was the accused huddled in it. He shouted “police” again. At that time his light was no longer shining.

However he was able to feel the accused strike him a blow, so the officer struck back at the accused. He pulled the accused and himself from the sub-attic despite that, the accused continued to resist, kick and struggle. As well, he had spat on Constable Goodwin. [ 14 ] Regardless, the officer had to drag the accused across the attic along the beam, still kicking and struggling. After that he made his way through a hole which had broken through the attic ceiling where a mattress had been placed for him to land on the floor.

The officer had suffered a gash to his head from a nail and scrapes on his shin and forearm. [ 15 ] In cross-examination Constable Olafson advised that permission to conduct the search had been confirmed by one of the sergeants. Thereafter, once he was in the sub-attic with Constable Goodwin, he could see the accused down there in fetal position. He was warned “police”, “show me your hands” but there was no answer. He put his light into a pocket and felt a strike from the accused. Therefore the officer struck down with a closed fist, making contact with the shoulder and head area.

He struck repeatedly until the accused stopped with his blows. Thereafter the two officers dragged the accused out of the sub-attic onto the beam. Both the accused and the officers had their faces in the insulation. He was able to grab the accused in the buttocks area and pin him with his leg to stop the struggle, with no more blows. [ 16 ] There were no lights and the officer could not see if Constable Goodwin had struck any more blows. Together the officers pushed the accused backward down the beam toward the intended exit.

Although he could not see in the dark whether the accused had spat, he heard Constable Goodwin say “don’t spit again”.

Constable Dennis Baron [ 17 ] Constable Baron of the Saskatoon Police Service was also at the scene. There were warrants for the arrest of the accused and he was believed to be in the premises. After a delay of fifteen minutes it was concluded that a search warrant would not be necessary and permission for entry was confirmed. Once they were inside, Constable Baron waited by the attic door while the others searched elsewhere. Soon he hoisted both Constable Olafson and Constable Goodwin up the attic access so they could do a more thorough search. He heard Constable Olafson yell to come out and heard a scuffle.

He was also able to hear spitting and Constable Goodwin saying to stop it. The accused had also been told to stop resisting and comply. At that time also, the accused began coming head first through a hole in the ceiling, so the officer positioned a mattress to cushion the fall to the floor, for his safety. He landed on his head and spine with some support from the mattress.

Thereafter the officer read the accused his Charter rights and warning, as well as placing him under arrest. [ 18 ] The officer had also initiated taking pictures of the accused by Identification staff, which were entered as an exhibit by consent. In general they show minor cuts, bruises, scrapes with some swelling, bruising and dry blood.

All of the injuries would appear to be consistent with having occurred during the struggle for his removal. [ 19 ] In cross-examination Constable Baron advised that once the accused was on the mattress Sergeant Kay had carried him in his arms to a police vehicle and placed him there. Shortly thereafter Constable Baron had placed the accused in his police vehicle and told the accused he was under arrest for outstanding warrants. He had also read the accused his Charter rights and warning when placed under arrest.

His usual practice is to place the accused in a secure spot like that to read this information to better ensure there is no misunderstanding. [ 20 ] Further the accused had not been placed under arrest at that time for assault. Subsequently the charge was laid and the alleged spitting was the basis for it. [ 21 ] It was also confirmed that the accused had made a complaint to the police regarding improper conduct by police services at the material time. [ 22 ] In re-examination the officer advised that five to ten minutes at most had elapsed from the time of detention to arrest and rights being read.

EVIDENCE FOR THE DEFENCE Constable Kelly Olafson [ 23 ] The Crown had re-opened their case by consent and Constable Olafson was cross-examined on the contents of his notes, as it related to his earlier testimony. He confirmed his evidence as to how matters had allegedly occurred despite that his notes had indicated in some aspects a different sequence of events. Regardless it was not apparent that he had any confusion in his own mind and reiterated the validity of his earlier testimony and placed those notes in proper context herein for these purposes.

In any event, none of this undermined Constable Olafson’s credibility.

W.R.G. - The Accused [ 24 ] The accused confirmed that before he had been located by the police he had been crouching and was completely hidden. In due course he was grabbed by one of the peace officers and pulled out on a beam where the officers had been crouched. Once he was at that level, the accused came in contact with some insulation which caused him to have some problems breathing.

He had been laying on that insulation for about five minutes, otherwise he had been standing on the beam because he was heavy enough to fall through the ceiling. [ 25 ] Further in regard to the insulation, he had only been resisting the officers because of problems being able to breathe. As well, he could not see properly because of the poor lighting. The peace officer had the only light and he shone it in the accused’s face. He was sneezing and spitting.

He felt really sick from breathing in the insulation and the police had pushed his face into it as well as striking him the physical blows. [ 26 ] At the time he was sneezing and spitting out the insulation, he could not see where he was spitting and did not intend to spit on anyone, particularly any of the peace officers. The accused also confirmed the photos contained in Exhibit P-1.

With some minor exceptions, he had not suffered any of the wounds or injuries before the alleged encounter with the police. [ 27 ] In cross-examination the accused confirmed that initially he had intended to surrender himself into custody knowing there was a warrant for his arrest. When the police arrived there were so many of them that he panicked and decided to hide at the spot where he was located. [ 28 ] There was very little light up there. At first he had crawled across the same beam on which the officers had returned him across that space.

While he was in hiding he had heard the police announce their presence and that there were dogs but chose not to surrender. Instead he kept quiet. When they found his hiding place he still resisted and had to be pulled out of his hiding place and was struck by the officer in that process. Although he was struggling somewhat, in his view, the force which the officers had used on him was excessive and unnecessary. As well, he could not see what was happening when the officer was shining the flashlight in his face.

Eventually he gave up because there was no longer any wish on his part to resist the officers in their duties. [ 29 ] Regarding the spitting, he had insulation in his face when he spat. He had no intention to spit on the officer and did not know where he had spat on him. He had not spat down on his shirt or elsewhere but could not see. [ 30 ] The accused also confirmed that on September 22, 2010, he had provided a false name and date of birth in order to secure his own release. That was at least one of the warrants outstanding for his arrest at the time.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had the necessary intent to assault the peace officer by spitting? Was the accused able to rebut the presumption that, by his actions, he intended to assault the peace officer by spitting? [ 31 ] The accused has filed herein the judgment in R. v. Bear, 2003 SKPC 117 , wherein my colleague Judge Whelan set forth the following general principles, commencing at para. 14, in the context of those particular circumstances: [14] The assault peace officer charge was contrary to s. 270(1) (

a) of the Criminal Code which provides as follows:

(1) Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer; [15]

Section 265 of the Criminal Code defines assault and provides in part:

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose; or . . . [16] Credibility and reliability are key to my decision and as such I have reviewed the decisions of R. v. W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221, 106 C.C.C. (3d) 1 (Sask.C.A.). I accept the testimony of the Defendant, Mr. Bear. The evidence of what occurred before and after the alleged assault is consistentwith his testimony.

Where the testimony of Officer Johnstone is inconsistent with that of Mr. Bear, I reject it. The evidence demonstratedthat this Officer used inappropriate force in response to what he perceived to be an assault by spitting. Further, he initially failed to reporthis wrongful behaviour. I do not accept that his failure to report his behaviour was an oversight. As such I am not prepared to rely uponhis perceptions and the claim that Mr. Bear deliberately spit toward him. [17] This allegation of assault peace officer is pursuant to s. 265(1)(

b) of the Criminal Code. It matters not that the spit missed theOfficer. However, intent is an essential element of an assault. Mr. Bear was careless when directing the spit; he maintained that he didnot intend to spit at the Officer. As the gesture or action toward the Officer was the result of carelessness and was not intentional theDefendant must be acquitted. See R. v. Starratt (1971), (ON CA), 5 C.C.C. (2d) 32, [1972] 1 O.R. 227 (C.A.). TheCrown has essentially argued that the Defendant deliberately spit at the Officer and that he is presumed to intend the naturalconsequences of his act.

In Starratt the Court stated: The respondent submits there is a presumption that a man intends the natural consequences of his acts and while the appellant did notintend to hit the complainant in the mouth, in fact he did so as a result of his intentional swinging of the hand containing the handcuffs.We agree that there is such a presumption, but it is a rebuttable presumption and the [page 34] appellant gave evidence which, in ourview, rebutted it.

In this case I find as well that the Defendant has rebutted the presumption and did not intend to spit at the Officer. [32] Therefore, this Court shall consider the credibility of the various witnesses in that context.

At the outset, one must confirmproblems with the accused’s reliability in light of him having provided false information to the authorities in the first place which had ledto his improper release and being subject to this particular warrant for his arrest. [33] Despite that, however, he insisted in his testimony to ending up having his face in insulation for roughly five minutes as thepolice attempted to get him under control in the course of making a lawful arrest. As a result of that, he felt sick from breathing ininsulation which caused him to sneeze and spit it out.

It was dark in the attic and he could not see where he was spitting but had notintended to spit on any peace officer in those unusual circumstances. Further he stood up reasonably well in careful and thorough cross-examination. Likewise, there was nothing in the evidence of any of the Crown witnesses that undermines the accused’s description ofwhat occurred to any significant extent at least as it related to the spitting actions of the accused. It was apparent from the Crown

evidence that this particular location where they had encountered the accused was poorly lit, such that Constable Goodwin could only see Constable Olafson’s shape. The officers made minimal use of their flashlights. As well everyone in the attic was suffering to some extent from breathing problems in the dust and insulation. [ 34 ] The light was too poor for Crown witnesses to clearly see the accused when he spat. However, he was told to stop spitting and complied with that request. It was not apparent that he had spit any more than the one occasion.

As well, despite the hard feelings which the accused felt from the alleged force used by the police, he had not used any vulgar or abusive language against them at the material time. Evidence of that type of activity would tend to support the inference that the accused had intended to assault the peace officer by spitting, but the testimony did not so indicate. [ 35 ] Applying the principles in Starratt , supra and McKenzie, supra, the evidence for the Crown is not sufficiently credible to prove beyond a reasonable doubt that the accused had committed the offence of assault peace officer contrary to s. 270(1) (

a) of the Criminal Code . Although he had spat on the officer, it was not appropriate in the circumstances for the Court to infer and conclude that the accused had intended the natural consequences of his acts by spitting. He is not guilty. ______________________________ P.S. Kolenick, J