R v Wedell, 2023 ABKB 323

Court of King’s Bench of Alberta Citation: R v Wedell, 2023 ABKB 323 Date: 20230608 Docket: 211120829S1 Registry: Medicine Hat Between: His Majesty the King Appellant - and - Steven Roger Wedell Respondent _______________________________________________________ Appeal Decision of the Honourable Justice P.R. Jeffrey _______________________________________________________ Appeal from the Acquittal by The Honourable Justice K.R. Ailsby [ 1 ] The Crown appeals Mr. Wedell’s acquittal from the charge of assault.

The charge he faced arose from events at the time of his arrest, purportedly pursuant to the Mental Health Act . The Crown appeals on two grounds. [ 2 ] First, the Crown says that the Trial Judge erred by failing to consider all the evidence. More specifically, the Crown says that, when the Trial Judge acquitted Mr. Wedell, she dealt with just one of many incidents in the evidence that proved the offence of assault.

[ 3 ] Second, the Crown says the Trial Judge erred in acquitting Mr. Wedell on the basis the Crown did not prove something it was required to prove: the validity of the arrest under the Mental Health Act . The Crown says that is not an element of the offence of assault. [ 4 ] These grounds of appeal raise questions of law. The standard of review on questions of law is correctness. Neither party suggested otherwise. [ 5 ] For the reasons that follow, I grant the Crown’s appeal on both grounds, vacate Mr. Wedell’s acquittal, and remit the matter back to the Alberta Court of Justice for a new trial.

Failing to Consider all the Evidence [ 6 ] The Trial Judge heard evidence about several instances of Mr. Wedell forcefully touching the officers without their consent over the course of their encounter at Mr. Wedell’s residence, from which his guilt might reasonably have been found. The trial evidence included testimony from all three witnesses – Mr. Wedell and the two police officers –grabbing Cst. Zarowny’s right wrist and another time Sgt. Kesler’s right arm as they attempted to apprehend him, about the three wrestling, about Mr. Wedell kicking them while he was on the floor, and about Mr.

Wedell lifting both feet up and then pushing against the door, knocking both officers back. There was evidence that more officers had to attend the scene before Mr. Wedell was brought under control. Mr. Wedell testified. He said the wrist and arm grabbing “mighta” happened as the three struggled and wrestled. But he then went on to explain why he did those things, from which it was open to the Trial Judge to infer both that he did those things and that he intended to do them. [ 7 ] However, in her decision and reasons the Trial Judge only addressed Mr.

Wedell’s striking the arresting officers with his feet when laying on the floor. On her findings of fact and then acquitting Mr. Wedell of the charge of assault, the Trial Judge said only this: I am not satisfied the Crown has proven beyond the standard of reasonable doubt that a police officer was assaulted. The allegation is that both officers were kicked while Mr. Wedell was on the ground. I accept Mr. Wedell’s evidence that he engaged in a running-like motion when he was on his back and that he did so because he was wildly disoriented from the situation.

He did not intend to connect or strike the police officer, and I am satisfied there was no assault. [ 8 ] The Trial Judge addressed only whether an assault had been committed when Mr. Wedell was on his back on the floor. She refers only to a singular “allegation,” the allegation in respect of the kicking, but there were many additional incidents of assault in the evidence. [ 9 ] The Crown readily and properly acknowledges that trial judges need not recite and address every piece of evidence in their decisions.

The Crown says, however, that here the Trial Judge erred in failing to consider all the evidence. [ 10 ] I am not sure that she did not consider it all, but on review of the whole of the record the paucity of her reasons I am unable to conclude that she turned her mind to the substance of the critical issues in play. This constitutes an error in law: see R v Mongeon , 2023 ABCA 50 at para 18 . [ 11 ] In R v REM , 2008 SCC 51 at para 35 , the Supreme Court of Canada summarized the law on sufficiency of reasons: In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard , at paras. 46 and 50; Morrissey , at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. [ 12 ] Regarding the sufficiency of reasons in their context, the question is “whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions – the “why” for the verdict – are discernable,” REM at para 37.

Here, they are not. [ 13 ] The Trial Judge failed to explain her rejection of any of the other incidents during the officers’ encounter with Mr.

Wedell constituting assault, including the basis for her rejection of the substantial evidence from which she might have concluded proved beyond a reasonable doubt the offence charged, including evidence that she might have concluded constituted admissions of the elements of the offence. [ 14 ] Where, as here, the evidence from all trial witnesses aligns on the description of the events constituting the offence in question, is uncontradicted, and involves the accused person seemingly admitting all the elements of the offence charged, it is incumbent upon the trial judge to explain why they are not convicting in the face of such one-sided inculpatory evidence.

The only reasonable inference is that the Trial Judge rejected some or all that evidence; it is an error to not explain why given its nature. [ 15 ] From these very brief reasons it is not apparent the Trial Judge “seized the substance of the matter” [ REM at para 43]; the reasons on this point have not been capable of “meaningful appellate review” [ REM at para 53]. [ 16 ] A trial judge need not say in respect of each piece of evidence whether they accept it, reject it, believe some but not all, give it less weight because the witness may have some reason to hold a bias, or make credibility findings on each statement of a witness or

reliability findings on each recollection. However, all parties are entitled to hear the trial judge’s reasons for why their position with prima facie support in the evidence did not prevail [ REM at paras 56 and 64]. [ 17 ] Mr. Wedell’s appeal counsel (who was not counsel at the trial) says that the Trial Judge’s finding that Mr.

Wedell “did not intend to connect or strike” applies to all the different allegations of assault and that therefore the Trial Judge said all she needed to, the Crown failed to prove the mens rea beyond a reasonable doubt on all the various events alleged to constitute assault. [ 18 ] I disagree. In the context of the full paragraph, the Trial Judge’s statement about Mr.

Wedell’s intent concerns only the time he was flat on the floor and moving his feet “in a running like motion.” As noted above, she began those few brief sentences by referring to “The allegation,” in the singular, though there were several other allegations that Mr. Wedell used force upon the officers. The Trial Judge says nothing at all about these other unwanted physical contacts. [ 19 ] All the uncontradicted inculpatory evidence about these further acts of touching each officer without consent and Mr.

Wedell’s explanations of his intention for them, obliged the Trial Judge to explain why she acquitted in the face of such evidence. She did not. I find, based on the approach articulated by the Supreme Court of Canada in REM , that there is not an apparent “logical connection” between the acquittal and the basis for it in her reasons, in the context of the entire trial record. [ 20 ] Therefore, the Crown succeeds on the first ground of appeal.

Adding a New Element to the Offence of Assault [ 21 ] Regarding the second ground of appeal, the Crown argues that the Trial Judge erred in requiring the Crown to prove that the officers were executing a valid arrest warrant or apprehension order, when that is not an element of the offence of assault. [ 22 ] The evidence suggests that the officers were dispatched to respond to Mr. Wedell’s telephone call for assistance. On their way to Mr. Wedell’s residence they were advised of a mental health warrant for him.

The officers arrived at his residence and set about to apprehend him, believing they had valid authority to do so under the Mental Health Act . Mr. Wedell did not wish to be apprehended. The Crown believes that the skirmishes that ensued constituted assault by Mr. Wedell. [ 23 ] The Trial Judge required the Crown to prove that the officers’ authority to arrest Mr. Wedell was in fact valid, saying in that part of her reasons for acquitting [Tr 6; ll. 26-29]: Mr. Wedell was not being arrested for a Criminal Code offence.

The Crown failed to prove they had lawful authority for the arrest which would have been the underlying warrant. And they have not proven that. The mental health warrant pursuant to which they effected arrest was not ever entered in evidence. [ 24 ] The Trial Judge relied on R v Gunn , 1997 ABCA 35 , about which she said: In Gunn the legal substratum that must be established is the legality of the warrant and the arrest.

The Crown must prove this element of the offence beyond a reasonable doubt and failure to do so results in an acquittal. [ 25 ] She then said Gunn “was cited with approval in R v Houle , a 1985 criminal court decision.” It is the other way around, Gunn cites with approval R v Houle , 1985 ABCA 275 . Nevertheless, both cases address what constitutes “the lawful execution of” a police officer’s duty and what the Crown must do to prove it. [ 26 ] Houle was an appeal from convictions for resisting arrest, obstructing a peace officer, and assaulting a peace officer.

Stevenson JA (as he then was) stated at para 3: We are not concerned with whether the acts constituted assaults, or other offences, we are concerned solely with the question whether the acts attracted the greater gravamen attached to interference with peace officers in the execution of their duty.

He then proceeded to deal with the “concept of ‘lawful execution of duty’ …”. [ 27 ] Gunn similarly concerned a prosecution under s 129 of the Code , for obstruction, and states the elements of that offence at para 17: Three elements must be proven: 1. there was an obstruction; 2. the Constable, a peace officer, was in the execution of her duty; 3. the person obstructing did so wilfully.

The decision deals with several issues including, notably for present purposes, what constitutes proof of an officer acting “in the execution of her duty” (paras 25 to 37). [ 28 ] Unlike both of those cases relied upon by the Trial Judge, Mr. Wedell was charged with assault. He was not charged with an offence under s. 129. Perhaps that could have been the charge laid by the Crown, given the context, but the Crown charged Mr. Wedell with assault not resisting arrest or obstructing an officer. [ 29 ] Proof that the officers were acting “in the execution of their duty” is not an element of the offence of assault.

The Trial Judge erred in law in acquitting Mr. Wedell on the grounds the Crown failed to prove the validity of the Mental Health Act warrant they were

told existed when they were dispatched to Mr. Wedell’s residence. [ 30 ] Therefore, the Crown succeeds also on the second ground of appeal. Conclusion [ 31 ] Accordingly, I grant the Crown’s appeal, vacate the acquittal of Mr. Wedell, and remit the matter back to the Alberta Court of Justice for a new trial. Heard on the 12 th day of May, 2023. Dated at the City of Medicine Hat, Alberta this 8 th day of June, 2023. P.R. Jeffrey J.C.K.B.A. Appearances: Jase Cowan for the Appellant Marc F. Crarer for the Respondent