R v Ginter, 2023 ABCJ 92

In the Alberta Court of Justice Citation: R v Ginter, 2023 ABCJ 92 Date: 20230616 Docket: 220542773P1 Registry: Grande Prairie Between: His Majesty the King Crown - and - Shellie Ginter Accused Decision of the Honourable Justice B.R. Hougestol Introduction [ 1 ] Ms. Ginter is a self-represented accused. She defended herself at a trial in Valleyview on April 13, 2023. The charges against her were originally from April 25, 2022: Assaulting a gas co-op employee with a tree branch and resisting the RCMP in a later arrest. The Crown’s case comprised the gas co-op employee and a single RCMP officer.

Video of the Vics cam from the arrest was an exhibit at trial. [ 2 ] As part of the trial the accused attempted to “file” a volume of materials. After a review of the materials, they were found not to be evidence and were not admitted. The documents did however “road map” what the accused’s defence was and as such amounted to argument on this aspect of the case. [ 3 ] In essence the accused’s attempted defence was that the complainants were trespassing, and the accused was acting within her rights to send them on their way, off the property.

She did not argue that she was defending herself from any perceived assault. Rather she took the position that she was keeping the gas worker from interfering with her property. As regards the resist arrest charge, her defence was that the officers had no lawful basis for being on her property and for arresting her. Facts [ 4 ] On April 25, 2022 the complainant gas co-op employee, in the company of a colleague attended at the accused’s rural

residence. There was a non-payment issue and the two workers were going to do a meter disconnect. There had been ongoing contact between the gas co-op and the accused. [ 5 ] Upon arriving at the location, the two men parked their truck on the main road and walked down the long driveway in towards the house. They encountered the accused’s dogs but continued. The workers had to open the gate and walk in. As they approached the residence the accused exited her house and began yelling at them from the porch/deck. Due to the wind, it was hard to hear her at first.

It became evident that the accused was very upset and it is clear that she told the men to leave her property. The gas employee gave evidence that the accused became very aggressive. His evidence is that the accused swore and mean-mouthed them; she left the deck where she grabbed a tree branch and began waving it at them. She never struck them with the branch. The gas employee’s evidence is that at some point she dropped the branch and pushed him on the upper chest. Rather than allow the situation to escalate the two workers left and walked back to their truck.

The agitated accused followed/chased them down the driveway, hurling obscenities and yelling. [ 6 ] The accused, who gave evidence, indicated that she never threatened anyone with a branch. She says she did not know why the men were there and was simply ejecting them from her property where she deemed them trespassers. It is clear that she wanted them gone. I reject her complaint that she did not know why they were there. The gas employee says he told her. Her evidence itself was inconsistent on this point. The accused knew there was a dispute over non-payment, but she denies a disconnection notice.

It was also clear that some notion in the accused’s belief structure led her to think she either didn’t need to pay for gas or could evade a disconnection. [ 7 ] The accused said she did shove the employee but that it was to chase him away from her truck, which she claims he was obstructing. I reject this evidence. It makes no sense that he would “obstruct” the vehicle. I fully accept his evidence on this point. [ 8 ] Absent a court order or statutory right or a contractual right of access the accused had a right to ask these men to leave.

If they did not leave, she had a right to use reasonable force to eject them. The Crown provided no evidence or submissions on the gas company’s rights. I take judicial notice that customers of utility companies must pay for that service. If they do not then the can expect to be disconnected. Part of a disconnection may involve the utility provider being on the property. While this is not a license to trespass, it certainly is what the Trespass to Premises Act RSA 2000 c T-7 anticipated in

Section 8 : 8 Nothing in this Act extends to a case where the trespasser acted under a fair and reasonable supposition that the trespasser had a right to do the act complained of. [ 9 ] I find that the gas employees were professional and non-confrontational. They were faced with an accused who had very little self-control and simply “lost it”. The same reaction to the RCMP is evident in the video of the ultimate arrest.

I am perfectly satisfied that this accused works herself up emotionally to such a level that her reactions are impulsive and that her recollections are also wholly unreliable. [ 10 ] Shortly after being confronted by the accused, the gas worker retreated to avoid any further confrontation. I am satisfied that their retreat was in response to the accused’s demands that they leave. [ 11 ] As regards the ultimate arrest the real facts are very straight forward. After the April 25, 2022, incident the worker wrote a report with his supervisor. Eventually on May 18, 2022, the supervisor formally complained.

The RCMP received the complaint and went to the rural location to arrest the accused. The gas supervisor and another employee accompanied the RCMP. There is no evidence that the RCMP accompanied the gas co-op people to act as accomplices for removal of the meter. They indicated that they would allow the removal if it was feasible. The RCMP were aware of the accused barring entry to other utilities (ATCO). [ 12 ] Upon arrival at the accused’s residence, it is clear that the accused met the RCMP vehicle in the driveway and tried to chase them off her property.

The Mounties immediately arrested her for the April 25 assault. The accused was aggressive even before the arrest and became even more so as the police tried to effect the arrest. The accused struggled and fought with all her available energy. She was as verbally aggressive and as rude as she could be. [ 13 ] While this went on the gas men quickly removed the gas service and left. [ 14 ] The RCMP had reasonable and probable grounds for the arrest based on the information received on the morning of May 18, 2022. There was nothing unusual nor untoward in the receipt or use of that information.

The fact the actual gas employee from April 25, 2022, did not formally present himself to the RCMP to complain is irrelevant. Even if the accused had a defence to the April 25, 2022 incident, the RCMP had reasonable and probably grounds to arrest. [ 15 ] The reaction of the accused to both incidents was wholly unreasonable and “over the top”. The RCMP did not need a warrant to effect the arrest. There is no evidence to support the accused’s claim that the arrest was part of some sham or conspiracy to let the gas men do their disconnect.

The accused’s resort to physical aggression on April 25, 2022 was wholly uncalled for and unreasonable. The reaction was rooted in the accused’s unhinged mental state not in any effort to thwart a trespass. [ 16 ] For the reasons laid out, the accused’s evidence is rejected. The accused’s perception of what occurred is highly unreliable given her aggravated emotional state. The Crown’s witness suffered non of these problems. [ 17 ] My credibility findings are determinative of the accused’s s. 35 argument that her actions were in defence of her property.

Section 35 of the Code states: 35

(1) A person is not guilty of an offence if (

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances. No defence (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

No defence (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 18 ] As stated earlier, the accused’s response to the situation was wholly unreasonable. There could be no reasonable basis thinking the gas employees were there to damage or remove property.

Moreover, the disproportionate response of the accused was based in emotion and not at all in reason. [ 19 ] While I am satisfied that the accused has not raised a reasonable doubt on the s. 35 grounds, I must still determine if the Crown has otherwise proven the charge. [ 20 ] I am not satisfied that the charge of assault with the tree branch constitutes a s. 267 offence. There was no contact made via the branch and while it was waved it does not necessarily constitute part of an assault.

I am however satisfied beyond a reasonable doubt that the push, coupled with all the aggressive behaviour constitute a simple assault contrary to s. 266 of the Criminal Code , albeit a very minor assault. [ 21 ] As regards the s. 127(

a) offence of resisting arrest, I am satisfied that legal grounds existed for the arrest. The arrest itself and the accused’s reaction are all set out clearly on the Vics camera. Clearly she physically resisted and obviously intended to from the outset. Heard on the 13 th day of April, 2023. Dated at the City of Grande Prairie, Alberta this 16th day of June, 2023.

B.R. Hougestol A Justice of the Alberta Court of Justice Appearances: P. Woytkowiak for the Crown Self for the Accused