R. v. Garbauski Date:, 2003 BCSC 487

Citation: R. v. Garbauski Date: 20030331 2003 BCSC 487 Docket: 17492 Registry: Smithers IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: REGINA RESPONDENT AND: LYLE MARK GARBAUSKI APPELLANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HALFYARD Counsel for the Appellant W. Chapman Counsel for the Respondent D. Brennan Date and Place of Hearing: March 21, 2003 Smithers, BC [ 1 ] This is an appeal by Lyle Mark Garbauski from his conviction by the Honourable Judge Jack on May 14, 2002, at Houston, of the offence of obstructing a peace officer, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] In

summary, the appellant was charged with obstructing Cst. John McNaul, a peace officer engaged in the execution of his duty, by resisting arrest, on July 20, 2001, at Houston. [ 3 ] I would paraphrase the grounds of appeal that were argued by counsel for the appellant, as follows: (

a) The learned trial judge erred in finding that Cst. McNaul was engaged in the execution of his duty, when he arrested the defendant. (

b) The learned trial judge erred in law in failing to give reasons to explain how he resolved the conflicts between the defendant's evidence and the evidence of the two Crown witnesses, and in failing to explain why he rejected the conflicting evidence of the defendant. (

c) The learned trial judge erred in law in failing to resolve the conflicts between the evidence of Lola Furrer and the evidence of Cst. McNaul. [ 4 ] The essential thread which runs through all of the grounds of appeal is that the reasons for judgment of the learned trial judge were deficient in that they prevented meaningful appellate review of his assessment of credibility, and that his reasoning is not otherwise apparent from the remainder of the record.

It was further argued that, as a consequence of all of this, there is much uncertainty as to whether the learned trial judge correctly applied the principles concerning the burden of proof and the standard of proof beyond a reasonable doubt, in deciding the central issue of credibility. [ 5 ] At the outset of the trial, the defendant was charged with three offences, all of which arose from the same incident which occurred in a trailer residence at Houston, on July 20, 2001. Those offences were: (

a) Count 1: Being unlawfully in a dwelling house with intent to commit an indictable offence, contrary to s. 349(1) of the Criminal Code . (

b) Count 2: Obstructing Cst. McNaul in the execution of his duty (the offence of which he was convicted). (

c) Count 3: Assaulting Cst. McNaul, a peace officer engaged in the execution of his duty, contrary to s. 270(1) of the Criminal Code . [ 6 ] Two witnesses testified for the Crown, Lola Furrer and Cst. John McNaul.

[ 7 ] At the close of the Crown's case, defence counsel applied for dismissal of all charges, on the ground of no evidence. The trial judge dismissed count 1 on the basis that there was no evidence which could prove the required intent. He dismissed count 3 for the reason that there was no evidence that the defendant committed an assault on Cst. McNaul. The trial judge ruled that there was a case to answer on count 2. The trial resumed, and the defendant testified in his own defence. [ 8 ] The essence of the Crown's case was that Ms.

Furrer had rented a trailer residence owned by the defendant and his former common-law wife, Janice Miettinen. Ms. Furrer was a long-time friend of both these persons, and she had stayed at the trailer with the permission of the defendant, on a number of occasions, in May and June 2001. The defendant, who had apparently moved out of town, had told her that she could stay in the trailer, if she paid the rental fees for the trailer pad, and looked after his belongings. He also told her not to tell Ms. Miettinen about this. The defendant and Ms.

Miettinen had previously terminated their relationship, on a date not disclosed in the evidence. [ 9 ] However, Ms. Furrer wanted to rent the trailer for herself and her family for a specific period of time. She tried to contact the defendant to arrange this, but she was unable to reach him. Then she contacted Ms. Miettinen, and it was agreed that she would rent the trailer for $400 per month. Ms. Furrer, her common-law husband John Heikkila, and her 13-year-old son moved into the trailer on or about June 29, 2001.

On or about July 1, she spoke to the defendant by telephone, and told him that she had rented the trailer from Ms. Miettinen. The defendant complained about her renting the trailer from Ms. Miettinen, and not through him, but did not tell Ms. Furrer that she could not live in the trailer. [ 10 ] On July 20, 2001, Ms. Furrer came home from work and found the defendant in the trailer, together with Mr. Heikkila. The defendant had already packed up her belongings, and he told her she had to move out of the trailer, immediately. Ms. Furrer did not want to leave. She telephoned Ms.

Miettinen and told her what the defendant was doing. She also asked Ms. Miettinen for the return of her rent money. When Ms. Miettinen suggested that the defendant was in the wrong, and that the police should be called, Ms. Furrer agreed with her. [ 11 ] Ms. Miettinen did call the R.C.M.P. and spoke to Cst. McNaul. She told him that the defendant was trying to forcibly remove the tenants and their belongings from her trailer. Cst. McNaul went to the trailer right away, and arrived a few minutes later. When he got there, Lola Furrer, John Heikkila and the defendant were in the trailer.

There was no apparent disturbance at that time. The defendant was not doing what Ms. Miettinen had complained of. Ms. Miettinen was having a beer. [ 12 ] Ms. Furrer showed the police officer a rental receipt that she had received from Ms. Miettinen, told him that the defendant was trying to put her out, and on being asked by Cst. McNaul if she wanted the defendant to leave, she said yes. She was upset. Cst. McNaul told the defendant that he would have to leave the trailer. [ 13 ] The defendant told Cst. McNaul, in effect, that he was a part-owner of the trailer, that he had not agreed to rent it to Ms.

Furrer, that he had the right to be there, and to evict the tenants, and he refused to leave the trailer. The defendant tried to show some papers to Cst. McNaul to support his position, but the police officer had made his decision and would not look at them. [ 14 ] Cst.

McNaul told the defendant he would be arrested if he did not leave, and when the defendant continued to refuse, the police officer told him he was under arrest for being unlawfully in a dwelling house, and mischief, and proceeded to subdue the defendant and remove him from the trailer. [ 15 ] That is a brief outline of the essential facts relied on by the Crown, and which are contained in the testimony of the two Crown witnesses. [ 16 ] The defendant's testimony was to the effect that he told Ms. Furrer she would have to move out at some later time, but not immediately. He said that Cst.

McNaul told him he must leave, as soon as he (Cst. McNaul) came into the trailer. The defendant testified that the police officer refused to look at his papers or to listen to anything he said. The defendant also said, in effect, that the police officer never gave him a reasonable opportunity to leave, before assaulting him and arresting him. There were numerous other conflicts between his evidence, and the evidence of Cst. McNaul.

There was at least one further conflict between the defendant and Lola Furrer, as to whether he had packed up all, or only some, of her belongings. [ 17 ] The reasons for judgment of the trial judge are contained in seven paragraphs, and I set them out here in full: "[1] THE COURT: In count one, I gave my reasons with regard to the issue of Mr. Garbauski without lawful excuse being in a dwelling house, so I dealt with that issue; the lawful excuse issue. So quite frankly, this is a different issue in count two. [2] The real question is Mr. Chapman's second second question.

And that is, whether or not there is a reasonable doubt that Officer McNaul was engaged in the execution of his lawful duty when the circumstances arose that led to count two. [3] And Mr. Chapman pigeon holes, as it were, as I see it, his arguments against the framework of what I determine with regard to count one. He basically urges me to conclude, following the three cases that he cited from Martin's; the Sharma case, the Gall case, and the Lavin case, that it is an objective test with regard to whether or not the constable was acting in the execution of his lawful duty. Further, that Mr.

Chapman urges me to conclude, on the basis of the evidence, that there was no offence; there was no disturbance. There was no lawful reason for Constable McNaul to go beyond entering the house, and this is not Mr. Chapman's words, but mine, and ensuring everybody is safe in the house. [4] What I find and what I accept as a fact is that when Constable McNaul arrived and just prior to his arrival, that, in fact, Ms. Furrer was upset and said she was upset; was concerned that Mr. Garbauski had told her to get out. She said she had nowhere to go. This was contrary to Mr.

Garbauski's evidence that he was calm and he was telling her she had to go, but not right then; that certainly was not in her evidence. So that she was confronted with a crisis, having had a daughter come down that day to be with her for that weekend. And that in this state of being upset, she phoned the person that she had entered into the rental agreement with, and that was Jan Miettinen. And what Ms. Furrer stated is that she had asked Ms. Miettinen to call the police, as well, she also said, "I want my rent back," but she also said for to her to call the police. And this is contrary to what Mr.

Garbauski's evidence is.

[5] So upon Constable McNaul entering and seeing what he takes to be a lawful document, which is a rental agreement, giving Ms. Furrer the right to have quiet possession of the trailer, seeing the possessions that were Ms. Furrer's possession stacked there, Constable McNaul then said to Mr. Garbauski, "What are you doing? These people have a lawful right to be here, and you are to leave." [6] I find all of that to be actually in the lawful execution of the constable's duty. I also accept and prefer Ms. Furrer's evidence, particularly where it conflicts with Mr. Garbauski's evidence. Mr.

Garbauski, if I were to believe what he says, paints quite a different story, a story where he is hit in the head twice by the peace officer; kicked in the leg; wrestles on the kitchen floor; and none of that is supported by Ms. Furrer, who certainly was in that small residence and would have been able to see what she called a scuffle. And she made comments that Constable McNaul was rough with Mr. Garbauski,*- and really was refusing to look in any detail at Mr. Garbauski's papers. Obviously, the constable arrived at some conclusion when he looked at the rental agreement that sufficed.

So I take it, that he was in a lawful execution of his duty. [7] And the constable gave evidence with regard to how he had to subdue, as it were, with some effort Mr. Garbauski; had to handcuff him. There was some difficulty doing that. Mr. Garbauski flailed around with the handcuff. The constable had to go behind Mr. Garbauski and restrain him, and continued the [indiscernible] application of handcuffs, and remove him from the house.

So having reviewed all of the evidence, I find that the Crown has proven its case beyond a reasonable doubt, and, therefore, I am entering a conviction with regard to count two of Information 4144." [ 18 ] I turn to the first ground of appeal. It is my opinion that the question of whether the police officer was acting in the execution of his duty, depends on whether he had lawful grounds to arrest the defendant for an offence, pursuant to s. 495(1) of the Criminal Code . Cst. McNaul said he arrested the defendant for being unlawfully in a dwelling house, and for mischief.

From his ruling on the "no evidence" motion, it seems reasonable to infer that the trial judge would have concluded that Cst. McNaul did not have reasonable grounds to arrest the defendant for a s. 349(1) offence. But neither that issue, nor the issue of whether the police officer had reasonable grounds to arrest the defendant for mischief, was referred to or decided by the trial judge. [ 19 ] S. 430(1) of the Criminal Code reads, in part, as follows: ” Every one commits mischief who wilfully (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property." [ 20 ] From paragraph 5, and from the last sentence of paragraph 6 of his reasons, it appears that the trial judge must have concluded that the police officer had decided: (

a) that the defendant was interfering with Lola Furrer's lawful use and enjoyment of the trailer residence; and (

b) that the best way to resolve the problem was by telling the defendant to leave. [ 21 ] I think the trial judge found that Cst. McNaul was acting in the execution of his duty, up to the point where he tried to resolve the dispute by telling the defendant to leave. But the question was whether, after the defendant refused to leave, the police officer had lawful grounds to arrest him and remove him. Unfortunately, that issue was never addressed. It might be reasonable to infer a finding by the trial judge that Cst.

McNaul himself believed he had reasonable and probable grounds to arrest the defendant for mischief. But I cannot infer a finding that the grounds relied on by Cst. McNaul, were objectively reasonable. [ 22 ] The charge laid against the defendant describes the obstruction as being struggling and resisting arrest, not his refusal to leave the trailer. In my opinion, before the trial judge could conclude that Cst.

McNaul was acting in the execution of his duty when he arrested and forcibly subdued the defendant, he would first have to make the essential finding I have referred to. [ 23 ] There is another sub-issue connected to the question of whether there were objectively reasonable grounds for arrest, which was not considered. That issue arises from the principle that a peace officer must conduct some inquiry, before arresting a person without a warrant. That principle was re- stated by Doherty J.A. in R. v. Golub (1997) 1997 CanLII 6316 (ON CA) , 117 C.C.C. 3d 193 (Ont.

C.A.) at paragraph 21 , as follows: "[21] In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and he is entitled to disregard only information which he has good reason to believe is unreliable...." (Citations omitted). [ 24 ] The trial judge made no assessment of whether Cst. McNaul was entitled to disregard the contrary information given to him by the defendant.

Moreover, there was conflict between the police officer and the defendant as to what information was given by the defendant, and that conflict was not resolved. But it does seem reasonably certain that the defendant told Cst. McNaul that he had a right of ownership in the trailer and had papers to prove it, and that Cst. McNaul disregarded that information in making his decision that he had grounds to arrest the defendant.

I think the evidence, on any view of it, could support a finding that the defendant honestly believed in a state of facts or civil law which, if it existed, would negate the mens rea required to constitute the offence of mischief. The defence of colour of right in s. 429(2) of the Criminal Code could be brought into operation by that evidence. [ 25 ] Of course, the defendant was never charged with mischief. And even if he had been so charged, and he was tried and acquitted of that charge, his arrest on the ground of mischief would not, for that reason, be unlawful. See R. v.

Anderson (1996) 1996 CanLII 3099 (BC CA) , 111 C.C.C. 3d 540 (B.C.C.A) , at paragraph 43 . But had he considered this issue, the trial judge might have concluded that it was unreasonable for Cst. McNaul to ignore the position advanced by the defendant. [ 26 ] In my opinion, there is evidence in the record which, if accepted, could support the conclusion that Cst. McNaul had objectively reasonable and probable grounds to arrest the defendant for mischief. That finding was essential for the determination of whether Cst.

McNaul was acting in the execution of his duty, which is an essential element of the offence of obstructing a peace officer. The trial judge found that the Crown had proved that essential element of the offence, but failed to make the finding of fact that was necessary to support that conclusion.

I have therefore decided that the first ground of appeal is established, and that a new trial is warranted. [ 27 ] The question raised by the second and third grounds of appeal is whether the trial judge's failure to explain how he resolved key points of conflict in the evidence is a further, independent reason for allowing the appeal.

For the reasons which follow, I think there should be a new trial on these grounds also. [ 28 ] There can be no dispute that the central issue at trial was the credibility of the witnesses. [ 29 ] In paragraph 4 of his reasons, the trial judge identified the main point of conflict between Lola Furrer and the defendant, namely, whether or not he told her she had to move out right away. In paragraph 5, by necessary implication, the trial judge resolved that conflict in favour of Lola Furrer, when he stated: "I also accept and prefer Ms. Furrer's evidence, particularly where it conflicts with Mr.

Garbauski's evidence." But the trial judge did not explain why he rejected the evidence of the defendant on this point. [ 30 ] As to the apparent conflict between the defendant and Ms. Furrer as to when she must move out of the trailer, the defendant's version was not put to Ms. Furrer in cross-examination. [ 31 ] Also in paragraph 6, the trial judge refers to the defendant's testimony about the altercation between him and Cst. McNaul, and then says "none of that is supported by Ms.

Furrer, who certainly was in that small residence and would have been able to see what she called a scuffle." Following this, the trial judge briefly described Cst. McNaul's evidence of the resistance to arrest put up by the defendant, and implicitly accepts the police officer's version of events relating to the alleged obstruction. He did not say why he rejected the defendant's version of the altercation, although he seems to imply that Lola Furrer's evidence was more consistent with Cst.

McNaul's version, than with the conflicting version of the altercation given by the defendant. [ 32 ] On reviewing the trial transcript, it is my opinion that the evidence of Lola Furrer does not conflict with the defendant's evidence on the content of the altercation, nor does her evidence corroborate Cst. McNaul's evidence in that regard. Her description of the "scuffle" was vague, and the defendant's version of the altercation was not put to Ms. Furrer in cross-examination. Nor was the defendant's version of the physical contact between him and Cst. McNaul, put fully and clearly to Cst.

McNaul in cross-examination. [ 33 ] In one significant respect, the testimony of Lola Furrer supported the testimony of the defendant, and contradicted the testimony given by Cst. McNaul. Both Ms. Furrer and the defendant testified that, immediately upon entering the trailer, Cst. McNaul told the defendant that he would have to leave. But Cst. McNaul denied that, and claimed, in effect, that he carefully advised the defendant why he had to leave, before telling him to get out. Cst.

McNaul also denied that he refused to listen to the defendant's side of the story, but both Lola Furrer and the defendant said that he would not listen to anything the defendant tried to say. The trial judge did not address these significant conflicts in the evidence, other than to refer to Ms. Furrer's evidence in paragraph 6 of his reasons: "...that Cst. McNaul...really was refusing to look in any detail at Mr.

Garbauski's papers." The trial judge does not say which of the two conflicting versions he accepted on this point. [ 34 ] I think the resolution of these conflicts in the evidence were necessary steps in the determination of whether Cst. McNaul had lawful grounds to arrest the defendant, for two reasons. First, if there was reasonable doubt about whether the defendant was trying to put Lola Furrer out of the trailer that very night, then there could be no crisis that would reasonably permit the intervention of the police officer. Second, if there was reasonable doubt about whether Cst.

McNaul told the defendant to get out as soon as he got to the trailer, and refused to listen to the defendant's side of the story, then it could be inferred that the police officer had already made up his mind before getting to the trailer, and so he may not have made any meaningful inquiry before demanding that the defendant leave the trailer. [ 35 ] As to the first conflict, the trial judge resolved it by accepting Lola Furrer's testimony and rejecting the defendant's evidence, but did not explain why. The second conflict was not resolved, at all. But before Cst.

McNaul's version could be accepted, it would be necessary to reject the version of events given on that point by both Lola Furrer and the defendant, as being false beyond a reasonable doubt. [ 36 ] The principles of law which apply to this issue are set out in R. v. Sheppard (2002) 2002 SCC 26 (CanLII) , 162 C.C.C. 3d 298 (S.C.C.) . Generally, the absence or inadequacy of reasons will not justify appellate intervention, where it is plain from the record why an accused has been convicted or acquitted: R. v. Sheppard , paragraph 46 . Speaking for the court, Mr.

Justice Binnie stated at paragraph 50 that the test is: "whether the deficiencies in the trial reasons taken together with the trial record as a whole, preclude meaningful appellate review." [ 37 ] In my opinion, the reasons do not explain the trial judge's decisions on the lawfulness of the arrest or on credibility, and it is not plain from the record why the defendant was convicted. I think "... the path taken by the trial judge through confused or conflicting evidence is not at all apparent" ( see R. v. Sheppard , paragraph 46 ).

I therefore conclude that "meaningful appellate review" to determine the correctness of the trial judge's decisions, is precluded. To paraphrase Mr.

Justice Binnie again, it is my opinion that additional reasons are necessary "... to revolve confused and contradictory evidence on a key issue", and that "the basis of the trial judge's conclusion is [not] apparent from the record, even without being articulated" ( Sheppard , par. 55 , point no. 6) [ 38 ] A further consequence of the absence of reasons in this case, is uncertainty as to whether the trial judge correctly applied the principle of proof beyond a reasonable doubt to the issue of credibility.

I think the possibility of error in that respect is increased by the absence of any obvious potentially fatal weakness in the credibility of the defendant. It appears that he made no damaging admissions in cross-examination, that no criminal record was put to him, and that no previous inconsistent statements were established. The undisputed fact that he had packed up at least some of Ms. Furrer's belongings could be seen as conduct inconsistent with his allegation that he had given her some time to move out.

But other than that, I see little or no support in the record to support an inference adverse to the defendant's credibility. [ 39 ] Crown counsel suggested that defence counsel's failure to put the defendant's version of events to the Crown witnesses before calling contradictory evidence, could be one reason why the trial judge rejected most of his key testimony. That is a possibility, but I do

no think it is a reasonable inference from the reasons given. Certainly it would have been preferable, and it may have been of assistance to the trial judge, if that general rule of practice had been followed. But I do not think that failure could, in itself, justify the rejection of all of the defendant's key testimony. [ 40 ] On the other hand, as I have mentioned, Lola Furrer's evidence supported the defendant's testimony about Cst. McNaul's conduct. There was another apparent inconsistency between the testimonies of Cst. McNaul and Lola Furrer.

He said that she seemed to be afraid of the defendant, and actually told him that she was. She made no mention of either being afraid, or of telling Cst. McNaul that she was afraid. [ 41 ] There were many more conflicts between the defendant's evidence and the evidence of Cst. McNaul, such as whether he told his dog to attack Cst. McNaul, that I need not discuss. There were also many matters brought out by the defendant that had not been discussed by the Crown witnesses. For example, he said he had spoken to an R.C.M.P. sergeant earlier that day, and that he had been at the trailer with Mr.

Heikkila for several hours before Ms. Furrer got home. He also said that he suggested to Ms. Furrer that she should call Ms. Miettinen, and that he knew the police were coming. I suspect that defence counsel may not have had full instructions when he cross-examined the Crown witnesses, and that may have added to the confusion. [ 42 ] Provincial Court Judges have heavy trial lists, and usually have little time to prepare their judgments. In most cases, the reasons for their verdicts will be clear, either from the reasons delivered, or from the reasons together with the remainder of the trial record.

Perfection is unattainable, and is not expected or required. As Binnie, J. stated in Sheppard (at par. 60 ): "... in the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned." It is only when the absence of reasons prevents the appeal court "from properly reviewing the correctness of the unknown pathway taken by the trial judge in reaching his conclusion", that appellate intervention will occur ( Sheppard , par. 64 ).

I have concluded that this is such a case. [ 43 ] In my opinion, there is admissible evidence in the record which, if believed, could support the essential finding that Cst. McNaul had objectively reasonable and probable grounds to believe that the defendant had committed (or would commit) the offence of mischief, and was therefore acting in the execution of his duty when he arrested the defendant. There is also evidence which could lead to a finding that the defendant resisted arrest. Accordingly, this is not a case where the verdict is unreasonable.

Rather, there has been error of law. [ 44 ] Crown counsel did not argue that, in the event there was error of law, the verdict should be saved by the application of s. 686(1) (b)(iii). I think he was right, not to raise that point. [ 45 ] I order that the appeal be allowed, that the conviction be set aside, and that a new trial be held. Whether or not a new trial is held is of course subject to the discretion of the Attorney General. “D.A. Halfyard, J.” The Honourable Mr. Justice D.A. Halfyard