R. v. HRVACANIN Date:, 2014 BCPC 393

Citation: R. v. HRVACANIN Date: 20140613 2014 BCPC 0393 File No: 201256-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VELJKO BRANKO HRVACANIN REASONS FOR JUDGMENT 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; Apr. 15, 17, 24; May 15, 19, 2014 Date of Judgment: June 13, 2014

[1] THE COURT: Veljko Hrvacanin is charged on a four-count Information 201256, with two counts of obstruct, one count ofassaulting a peace officer, and one count of attempting to take a peace officer's gun, all while the peace officers were engaged in theexecution of their duties. The evidence of three police officers, Cst. Sidhu, Cst. Shaw and Sgt. Shaw, and one civilian, Mr. Nash, wereheard initially in a voir dire, and Mr. Hrvacanin testified on the voir dire as well. [2] In my ruling on May 29th of that voir dire, I found no breach of Mr. Hrvacanin's rights under s. 7, 8, 9 or 10(

a) of the Charter. All the evidence on the voir dire became evidence on the trial by consent. The issues raised now are whether the Crown has proven itscase beyond a reasonable doubt on the four counts of this Information. [3] Mr. Hrvacanin testified, so R. v. W.D., (SCC), [1991] 1 SCR 742 applies which means that if I believe Mr.Hrvacanin's exculpatory evidence on any of the four charges, or it leaves me in a state of reasonable doubt, he is entitled to an acquittal.

The Crown bears the onus of proof beyond a reasonable doubt and that onus never shifts. [4] The background of these matters is that on July 25th, 2013, between 5:00 and 5:30 p.m., an anonymous caller called 9-1-1 toreport that a Caucasian male in his mid-40's, approximately five-seven or five-eight, wearing a grey tank-top and black shorts, wasdriving a mountain bike erratically in traffic in the vicinity of 88th and King George, braking in front of buses. The male was "possiblysuicidal", the caller reported, and had been behaving in this fashion for several minutes. [5] 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" as he put it. He observed theman for about five minutes. He was not the anonymous caller to 9-1-1. [6] Cst. Sidhu responded to this "check well-being" call. Cst. Sidhu at the time was an officer with less than a year's experience atthe end of his 12-hour shift that day, which had been 6:00 a.m. to 6:00 p.m. He attended alone, in uniform, and in a marked policevehicle.

He arrived at approximately 5:12 to 5:15 p.m., and searched the area for ten to 15 minutes, but he did not find anyone matchingthe description of the anonymous caller to 9-1-1. [7] 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 perhapsthe person he was looking for, he was leaving the area to check when he saw, on the sidewalk, travelling on his bicycle riding standingup 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, aCaucasian male in his mid-40's, approximately five-foot-seven or five-foot-eight, matching the description of the caller to 9-1-1. Thiswas Mr. Hrvacanin. [8] Cst. Sidhu, once he and Mr. Hrvacanin were close to each other, asked for the man's name.

The man would not look at him; hewas looking around, looking over his shoulder, looking as if he might flee at any moment. Cst. Sidhu had not request backup at thispoint. 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 youwant?" Finally Cst. Sidhu tells him, "We got a call you're slamming your brakes into traffic, you're not wearing a helmet." The manlooked back and forth, sweating, making arm gestures in the air. "No, no, I didn't do anything." [9] Cst. Sidhu approached closer to the man, about four or five feet away.

He called dispatch on his portable radio and advisedthat the man was not telling him his name and he described the man's demeanour. The man said, "I don't have any ID. What do youwant? I didn't do anything." He kept repeating these things. Cst. Sidhu persisted in asking for his name. He heard on his portable radiothat a police dog officer was coming to assist him. [10] Sgt. Shaw, the police dog officer, arrived, in uniform, at 5:35 p.m. He was aware of the contents of the initial anonymous 9-1-1call, and he was providing assistance to Cst. Sidhu. He had never met Cst. Sidhu before. Sgt. Shaw noted that Mr.

Hrvacanin was veryagitated 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. [11] Mr. Nash, the civilian described earlier, was on his way to his bus stop at 88th and King George with his bike when heobserved the man he had seen earlier “playing chicken” with traffic, on the grass being spoken to by police. [12] Cst. Sidhu warned Mr. Hrvacanin, "If you're not telling me your name, you're under arrest for obstruction." The man took astep backwards, "No, no, I'm not under arrest." Sgt.

Shaw, who was then there, joined in asking the man for his name. The man said hisname. They heard Waco (phonetic) Hrvacanin. It was mumbled at first, so Cst. Sidhu asked Mr. Hrvacanin to spell it. “V-a-c-o H-a-r-v-a-c-a-n-i-n, 17:25”, and he gave a “date of birth of January 13th, 1966”. This was all written in Cst. Sidhu's notebook. [13] The second time he gave his name, Cst. Sidhu said Mr. Hrvacanin was very clear and loud. He also gave an address, 10970128th Street in Surrey. Cst. Sidhu went to run the name with dispatch, leaving the man with Sgt. Shaw, who directed the man to thegrass.

No entries matched that name. Cst. Sidhu returned and said, "Sir, you have to tell us your real name," and Mr. Hrvacanin replied,"No, no, no, I told you my name, and I've already spoken with Cst. Lee." Cst. Sidhu requested the name again, and made another requestto dispatch, this time with the Cst. Lee information. Nothing came back. Cst. Sidhu said, "You're under arrest for obstruction." [14] Cst. Sidhu moved to Mr. Hrvacanin's right side, Sgt. Shaw to his left. A lengthy and difficult struggle ensued. Mr.

Nashwatched with an unobstructed view from the bus stop, ten to 15 metres away, and confirms the officers' general view of the chronologyof events. That is, first there was one police officer for about two minutes, then two police officers for about two to three minutes whichis when the struggle with Mr. Hrvacanin happened. Then finally a third police officer, Cst. Shaw, also in uniform, arrived on the scene. [15] Cst. Shaw had a taser and announced that, but I find he did not use it. Mr. Hrvacanin resisted arrest very aggressively. Thepolice were yelling, according to Mr. Nash, "Get down. You're under arrest.

Stop resisting." [16] Mr. Hrvacanin knocked Cst. Sidhu in the shoulder and the blow hit his radio off. Cst. Shaw heard scratching on the radio

before this, 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 as "hulk-like, very aggressive. He looked under the influence," he said. "He kept lifting his arms." [ 17 ] 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 saw Mr. Hrvacanin reach with his left hand to the gun in Sgt. Shaw's right leg drop-leg holster. Cst. Sidhu also saw Mr.

Hrvacanin unlatch the thumb latch from the top of the gun, and he yelled, "Bob. Gun. Your gun." 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 Mr. Hrvacanin's right thigh and then on his left calf, biting him in both locations. [ 18 ] Mr. Nash said that from where he stood, it looked like Mr. Hrvacanin was trying to reach for a weapon on one of the police officers. He could not say which police officer, and he also said that it looked like Mr.

Hrvacanin was reaching in the vicinity of the police officer's waistband. [ 19 ] Cst. Shaw arrived on the scene when the police dog, A.J., was out and he helped the two police officers present on scene handcuff Mr. Hrvacanin. Then Mr. Hrvacanin went into convulsions on the ground. He was shaking, really hot and sweaty, and thrashing. Cst. Shaw, the third police officer on scene, accompanied him to the hospital where he, that is Mr. Hrvacanin, was “given medication to reverse the effects of whatever was going on with him”, as Cst. Shaw described it. Mr. Hrvacanin remained conscious throughout. [ 20 ] Cst.

Shaw got a name with proper spelling at 18:41, 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 Mr. Hrvacanin had said was intelligible to him. [ 21 ] After the arrest of Mr. Hrvacanin, Sgt. Shaw noted that the initial bar of his holster was flapped down, which was the first point of his three-point security system on his holster. [ 22 ] There were some discrepancies in the testimony of the four witnesses called by the Crown.

I find these were due to them being different people with different perspectives, and also, each had a different timeframe of involvement with the incident before the court. None were material to the findings of fact I have made. [ 23 ] Despite these noted differences, there was a similarity to the general story they each told which tended to enhance the credibility of all of them. That is, there was a man with an aggressive demeanour who was first interacting with one police officer and then two police officers, and at that point a struggle ensued, and finally, there were three police officers with the man.

The police dog was deployed after a period of struggle of approximately two minutes with the two police officers, and the entire incident was somewhat lengthy, lasting approximately five to ten minutes, judging by the times the police officers each said they arrived at the location, and Mr. Nash's evidence, and putting all of that together. [ 24 ] Mr. Hrvacanin testified. He said he was on a bike ride. He was riding with the traffic. He did not exhibit any erratic behaviour and he denied that he had any suicidal thoughts. He said he had a shoulder bag with him that had ID in it and it went missing.

He agreed he was not tasered. [ 25 ] He spoke of having a relapse in 2012, and a spate of criminal charges at that point in time, after a lengthy period of no involvement with the criminal justice system. He denied that he was intoxicated or “on anything” that day. He said he was breathing hard and sweating a lot, and moving around because he had been exercising and it was a hot day in the summer. He denied trying to take the gun. He said the dog attack was unprovoked. He said he gave his name clearly when Cst.

Sidhu asked him for it. [ 26 ] He said the first contact that the police had with him was when they released the dog and it bit him. He denied that there was any struggle first. He said, "For no reason the police ganged up on me like a pack of wolves, for no reason the police released a dog on me." He said the police and Mr. Nash were “blatantly straight-out lying”, and so he stopped listening to their evidence after a while. But he agrees he heard, "Gun. Gun." He said he had given police false names in the past but had not done so on this occasion. [ 27 ] As I said at the beginning, R. v.

W.D. applies to this case if I believe Mr. Hrvacanin's exculpatory explanation, or if it raises a reasonable doubt in my mind he is entitled to an acquittal. [ 28 ] In a general sense, I do not believe the following aspects of Mr. Hrvacanin's exculpatory evidence and it did not raise a reasonable doubt in my mind in the context of all the evidence I heard in this case regarding the following: First of all, I do make a finding of fact that Mr. Hrvacanin was the same man who had been observed “playing chicken” in traffic by Mr. Nash, and the person that provoked the 9-1-1 call, the anonymous call.

I say that because he was in the vicinity of Surrey from where the call arose, he was wearing the same clothes, he had the same type of bicycle and general description of bicycle, and he matched the physical description of the person who had been reported to 9-1-1 with the same approximate height and size, and his behaviour, when stopped by Cst. Sidhu, was also unusual. Although it was not the same behaviour when Cst. Sidhu interacted with Mr. Hrvacanin, as when he was observed by Mr. Nash, or the anonymous caller to 9-1-1, it was still behaviour that was of concern in that Mr.

Hrvacanin was riding on the sidewalk in the fashion I have previously described, without a helmet, dipping down from side to side. [ 29 ] Mr. Nash also identified Mr. Hrvacanin in court as the same man he had seen “playing chicken” in traffic, then being spoken to by the police, and then in the struggle with police. [ 30 ] I also do not believe Mr. Hrvacanin's evidence, nor does it raise a reasonable doubt, on the issue of his level or fact of intoxication that day.

He said that his sweating was just due to his exertion because it was a hot day, but all of the other witnesses, all four witnesses to this incident, describe an individual who is quite agitated, sweating profusely, looking like he might leave the scene at any moment, and Cst. Shaw, in particular, referred to the fact that his “eyes were massive, his pupils were tiny, and he was sweating profusely”.

[ 31 ] I also consider the fact that after this incident ended, with the dog having bitten Mr. Hrvacanin twice, he went into convulsions on the ground, and when he was taken to the hospital, Cst. Shaw observed him being given medication to, as he put it, “counteract the effects of whatever it was that was going on with him”, so when I consider all of that evidence I do find that Mr. Hrvacanin was “on something” that day, some type of intoxicant that was affecting his behaviour and making him more aggressive than perhaps Mr.

Hrvacanin would be if he were not under the influence of some intoxicant. [ 32 ] I also do not accept Mr. Hrvacanin's evidence, and it does not raise a reasonable doubt as to the fact that he said he had identification. It was inconsistent with the pictures filed in this case, which were not complete, but at one point I remember Mr. Myers asking a police officer if an item on the ground was a black bag, but it was not, it was something else. It is also inconsistent with the statement that Mr. Hrvacanin made to the police saying, "I don't have any ID," which was not challenged in cross-examination, although Cst.

Sidhu was asked by Mr. Myers about whether or not there was a bag, but Cst. Sidhu said, "No, there was no bag." [ 33 ] Further, Mr. Hrvacanin's portrayal of the police officer behaviour that day was inconsistent with Mr. Nash, who was an independent observer of all of these events. Specifically, Mr. Hrvacanin's suggestion that the police released the dog before there was any struggle or really any reason to release the dog, and that in doing so they were just engaging in random, spontaneous, and sadistic targeting of an innocent civilian, namely, him. That I reject based on all the evidence I heard in this case.

And finally, having found that Mr. Hrvacanin was “on something”, the reliability of his evidence is also highly questionable. And the example that I give of that is, when he was talking about what time of day this happened, he gave an estimate of 3:00 to 3:30 p.m. in the afternoon, which was two hours earlier than what all of the other witnesses who were there say was the time of day that all of this took place. [ 34 ] So considering that, rejecting exculpatory aspects of Mr. Hrvacanin's evidence, or finding they do not raise a reasonable doubt, does not end the analysis.

I have to go onto consider whether the Crown has proven beyond a reasonable doubt his guilt on the charged offences. I will start with Count 3. [ 35 ] Count 3 was amended on April 5th, 2014, to read "obstruct or resist". My authority to amend a count in an Information in the Criminal Code is found in s. 601 . When I looked at s. 601(2), it says that where evidence has been called, the court can amend an Information to conform with the evidence. The other authority under that

section is 601(3)(b)(iii) which again refers to amending an Information when there has been evidence disclosed either at trial or a preliminary inquiry, so in my view, I improperly amended that count of the Information before I heard evidence. [ 36 ] Even though "resist" is subsumed under the general and broader concept of “obstruct”, and I do think it would have been open to the Crown to have argued, even without the amendment, that the resist that took place to Cst.

Sidhu in this case, was part of the obstruct that had been specifically alleged on the Information before the amendment, nevertheless, when I considered the evidence I heard in this case, if the obstruct was characterized as providing the false name, I find, as I held in the voir dire when it came to the arrest for that count, that an arresting officer must have subjective reasonable and probable grounds on which to base an arrest. Those grounds must, in addition, be justifiable from an objective point of view.

However, arresting officers are not required to establish a prima facie case for conviction before making an arrest. [ 37 ] Cst. Sidhu lawfully detained Mr. Hrvacanin under a common law duty to preserve the peace and protect life and property. He was concerned for his own safety and for that of Mr. Hrvacanin, and so after compelling him to stop, detaining him, and saying, "You're going to hurt yourself," he asked him repeatedly for his name. He did this because he wished to know the background of the person he was dealing with before proceeding further.

He was alone, standing near a busy street at rush hour, and reasonably suspected he was talking to a man who had been earlier reported to have been driving erratically in traffic, who was possibly suicidal. [ 38 ] I note that English is not Cst. Sidhu's first language, and that Mr. Hrvacanin's last name is unusual in spelling and pronunciation, even for native English speakers. It begins with three consonants. Even native English speakers could mishear a "B" for a "V" in an unusual name. In a high-pressure situation as described, Mr. Hrvacanin may not have misspelled his own name, but I am certain that Cst.

Sidhu was entirely sincere in how he heard it. [ 39 ] So I found the arrest to be lawful because the standard to arrest is lower than the standard to convict. But because of the way the amendment happened in this case, and despite my comments that the Crown could have still argued that the resist of Cst. Sidhu, once the arrest was underway, constituted the obstruction, I think Mr. Hrvacanin is entitled to the benefit of this characterization of Count 3, and I do find I have a reasonable doubt as to whether Mr.

Hrvacanin actually provided a false name, and so I am acquitting him of that count of the Information, Count 3. [ 40 ] Later, and when I come to Count 2, there's another characterization that was possible which was discussed when submissions were being made, and that would be Count 3 would have been conditionally stayed if Count 2 were proven in the sense that the conduct which comprised the resisting arrest in this case in respect of Cst. Sidhu was the assaulting of Cst. Sidhu, but in looking at all of the evidence in this case, I have decided instead to acquit Mr.

Hrvacanin on Count 3 of the Information. [ 41 ] Turning to Count 1, Sgt. Shaw's evidence that he felt his gun against his leg and that it was being moved in its holster was corroborated by Cst. Sidhu that Mr. Hrvacanin, in the course of the struggle, attempted to take his weapon. So Cst. Sidhu saw what Sgt. Shaw felt. When Cst. Sidhu saw that he yelled, "Gun. Gun," and said in evidence, "I didn't think I'd see my kids that night. I've never been so scared." And referring to the length and difficulty of the struggle said, "I've never been so tired." [ 42 ] There is some limited corroboration from Mr.

Nash for Count 1 in that I accept Mr. Nash was, as I have said, 45 feet away. I also note that what he observed was reaching to the waistband which was not the precise location of Sgt. Shaw's drop-leg holster which was on his right leg, going down his leg slightly, as the evidence established. However, it is some limited corroborative support for what the two police officers who were directly involved in the struggle testified to. After the fact, Sgt.

Shaw advised that when he looked at his holster, the first point of his three-point retention had been unlatched, so considering all of those factors, all the evidence in this case, I do find that the Crown has proven Count 1 beyond a reasonable doubt. [ 43 ] With respect to Count 2, the assault against Cst. Sidhu, Cst. Shaw said he heard on the radio scratching and yelling and screaming, and that is what brought him to the scene when the arrest was taking place, and Mr. Nash observed a struggle which he

testified was approximately two to three minutes in length preceding the release of the police dog. So both Cst. Shaw and Mr. Nashcorroborate the fact of a lengthy, difficult struggle by their observations from the outside of it, so I find as part of that struggle Cst. Sidhuwas assaulted. He was elbowed in the stomach and he was knocked in the shoulder and that blow took his radio off.

I find Count 2 alsoproven beyond a reasonable doubt. [44] With respect to Count 4, and there was some discussion about this during submissions as well, it is a basic principle of law thereshould not be multiple convictions for the same delict, matter or cause. The most egregious example of how Mr. Hrvacanin wasresisting arrest in this case with respect to Sgt. Shaw was when he attempted to take Sgt. Shaw's gun which is the conduct that I have justfound him guilty of in Count 1. [45] So I rely on the authority of R. v.

Brisco (BC CA), 17 BCAC 302, at paragraphs 11 to 13, and the ruleprecluding multiple convictions, to conclude there ought to be a conditional stay on Count 4, given the conviction for Mr. Hrvacanin onCount 1. The conduct which is the basis for a conviction on either is the same, or substantially the same, although I do note that theoffence in Count 1 has some additional elements, and it is more serious.

But with a conviction on that count, I think, while I can see atechnical argument that there was resistance first in time and the resistance continued in this continuing offence, and then the culminationof the resistance was the attempt to take the weapon, in my view, the same events are being described as a basis for the conviction oneither Count 1 or Count 4, and considering the spirit of the Kienapple decision, it is my view that a conviction on Count 1 ought to resultin a conditional stay on Count 4 and so I am directing a conditional stay on Count 4 of this Information. (RULING CONCLUDED)