R v Johnson, 2023 ABCJ 127

In the Alberta Court of Justice Citation: R v Johnson, 2023 ABCJ 127 Date: May 25, 2023 Docket: 220857775P1 Registry: Sherwood Park Between: His Majesty the King Crown - and - Adrin Johnson Accused Decision of the Honourable Justice T.W. Achtymichuk I.

Summary [ 1 ] Mr. Johnson is charged with obstructing police contrary to s 129(

a) of the Criminal Code . [ 2 ] Briefly, Mr. Johnson was stopped by police for speeding. He was generally uncooperative with police at roadside. Before a ticket was issued, the officer decided that he would not approach Mr. Johnson again until backup arrived, due to Mr. Johnson’s behaviour at roadside. At one point before backup arrived, Mr. Johnson was standing at the officer’s vehicle door with his hands against it, preventing the officer from being able to get out. [ 3 ] When other officers arrived, Mr. Johnson got out of his car. He did not put his hands behind his back as directed.

Instead, he reached into the open window of his car as if to get something. One of the officers quickly moved to Mr. Johnson, pushing him away from the car and onto the ground. Four officers handcuffed him while he was on the ground. [ 4 ] Mr. Johnson made a Charter application, alleging violations of his rights under ss 7, 9 and 10(

a) of the Charter . That application was dismissed in an earlier decision. This is the trial decision for the obstruction charge. This decision was delivered orally in Court on May 25, 2023. Those oral reasons for decision govern if there are any differences between those reasons and this written decision. [ 5 ] I conclude that the evidence proves beyond a reasonable doubt that Mr. Johnson is guilty of obstructing police under s 129(

a) of the Code , for the following reasons.

II. Factual Background [ 6 ] The trial evidence included testimony from three officers, and two videos from police vehicles. The evidence proves the following facts about what happened from the start of the traffic stop until Mr. Johnson was told that he was being arrested for obstruction. [ 7 ] RCMP Constable Kornicki stopped Mr. Johnson for speeding on August 27, 2022. Before the officer can say the reason for the traffic stop, Mr. Johnson interrupts him and asks if the constable is RCMP. Cst Kornicki says “yes”. Mr. Johnson says that according to the Premier, the RCMP has no jurisdiction in Alberta.

Based on the video evidence, over this time Mr. Johnson is asked for his vehicle documents or is told the officer needs them, about eight times. All the while, he says repeatedly words to the effect that according to the Premier, the RCMP has no jurisdiction in Alberta. He says several times that he does not have to give his documents, and that he won’t give the officer his documents. He says several times that he shouldn’t have been pulled over, and others were speeding. The Constable tells him that he was going 136 km/h in a 110 speed zone and shows Mr. Johnson the reading on the radar. Mr.

Johnson says several times that he’s going to keep going, meaning he’s going to drive away. At one point, he moves his car forward a few feet, starting to leave. Cst Kornicki yells at him to not drive away. During this entire time, Mr. Johnson is arguing with the officer, talking over him. It takes about 1 minute and 20 seconds for Mr. Johnson to hand over his documents. [ 8 ] Once he receives the documents, Cst Kornicki starts walking back to his vehicle. As the officer gets close to his vehicle, Mr. Johnson gets out of his car and starts walking towards the officer. Mr.

Johnson is visibly angry and aggressively shouting at the officer. Mr. Johnson appears to be muscular and fairly large. The Constable goes around the back of his vehicle for safety, and to avoid what he thinks could turn into a physical fight. Mr. Johnson yells repeatedly words to the effect “Just write the fucking ticket!” The officer calls for help on his radio. He repeatedly tells Mr. Johnson to go back to his car and wait. Mr. Johnson eventually walks back to his car. The officer gets in his. Mr.

Johnson opens his car door to get in, changes his mind, turns around and starts walking back to the police vehicle. He stands at the officer’s closed driver’s window, saying things with a raised voice. The officer repeatedly tells him to go back to his vehicle, which he does. This all lasts about 45 seconds. [ 9 ] The Constable calls in the license plate. Mr. Johnson gets out of his car again, holding his cell phone to his ear. The officer says into his radio that Mr. Johnson is getting out of his car again. Mr. Johnson walks up to the officer’s closed car window.

The officer keeps telling him to go back to his vehicle, until he starts to do so. Meanwhile, Cst Kornicki hears over the radio that Mr. Johnson has a history of threatening police, domestic violence, and has been flagged by police as a high risk offender. Dispatch asks the officer if Mr. Johnson is still out of his vehicle. The officer replies that he’s back in his car, that he’s quite angry, and that he is saying that the officer has no jurisdiction as per the Premier. Dispatch says that three officers are on their way.

This all lasts about 25 seconds. [ 10 ] About 3 minutes later, while waiting for backup, Cst Kornicki says in his radio that Mr. Johnson is in his car, but that the officer is not going to approach him again until backup is around. [ 11 ] A few seconds after that, Mr. Johnson gets out of his car and comes up to the Constable’s closed window. It sounds like Mr. Johnson is yelling at the top of his voice. His hands are on the door where the bottom of the window meets the door. He bends his arms at the elbow as if going down in a push up, bringing his face closer to the window.

The officer shouts at him three or four times to go back to his car. The officer says into his radio that Mr. Johnson is against his window and won’t let the officer out. Mr. Johnson does go back to his car. The officer says into his radio that he is back in his car, and is “losing his marbles”. This all lasts about 50 seconds. [ 12 ] Initially, three uniformed officers in two police vehicles arrive with emergency lights on. An officer asks Cst Kornicki if Mr. Johnson is armed. Cst Kornicki says “Not that I know of”. Cst Kornicki then says to Mr. Johnson “OK, come on out sir”.

As he gets out of his car, Cst Dhami tells him a couple of times to show his hands. He puts his hands up and turns around. Mr. Johnson is saying that he hasn’t done anything and doesn’t have anything. Then Cst Dhami tells him to put his hands behind his back. Mr. Johnson drops his hands, but doesn’t put them behind his back. He keeps saying that he hasn’t done anything. The officers keep repeating for him to put his arms behind his back. To this point, Constables Dhami and Starr have their guns drawn, but not pointed at him. [ 13 ] At that moment, Mr.

Johnson is standing beside his vehicle with his arms down, the police are yelling at him to put his arms behind his back, and the video shows that for a few seconds he looks as if he is taking some looks into his driver’s side window undecided about something – trying to make up his mind about it. Without warning, he then reaches into the open driver’s side window of his car, as if he is reaching to get something. Immediately, the police are yelling at him to not grab anything. Constables Dhami and Starr point their handguns at him. Cst Starr quickly moves towards Mr. Johnson. Mr.

Johnson sees Cst Starr coming at him with a gun pointed at him. Mr. Johnson quickly stands upright and puts his arms behind his back. At about the same moment, Cst Starr reaches Mr. Johnson and pushes him away from his car and over Cst Starr’s outstretched leg. Mr. Johnson loses his balance and falls to the ground. Based on the video evidence, it is about three to four seconds between Mr. Johnson reaching into his car window, and him falling to the ground. [ 14 ] Once Mr. Johnson is on the ground, he is handcuffed. He is then told that he is being arrested for obstructing police. III. Analysis [ 15 ] Mr.

Johnson’s position is that his actions do not constitute obstructing police for three main reasons. First, the evidence does not prove that his actions obstructed police within the meaning of s 129(

a) of the Code . Second, the evidence does not prove that Mr. Johnson’s intention was to obstruct police, nor that he appreciated his actions would have that effect. Third, he cannot be lawfully arrested and convicted for the criminal offence of obstruction under the Code because this was in a traffic stop under the Alberta Traffic Safety Act , RSA 2000, c T-6 [ TSA ]. A. Did Mr. Johnson’s actions obstruct police within the meaning of s 129(

a) of the Code ? [ 16 ] Under s 129(

a) of the Code , if a person “. . . wilfully obstructs . . . a peace officer in the execution of his duty . . .” they are guilty of an offence.

[17] Three elements must be proven: 1. there was an obstruction; 2. Cst Kornicki was a peace officer engaged in the execution of his duty; and 3. Mr. Johnson’s obstruction was wilful. The first two elements relate to Mr. Johnson’s conduct or actus reus. The third element relates to his intent or mens rea: R v Gunn, 1997ABCA 35, leave to appeal to SCC refused 115 CCC (3d) vi [Gunn] at para 17. [18] The evidence proves beyond a reasonable doubt that Cst Kornicki was a peace officer engaged in the execution of his dutieswhen he initiated the traffic stop, and throughout his dealings with Mr. Johnson. Mr.

Johnson did not argue otherwise at trial. [19] Instead, Mr. Johnson argues that his actions were not obstruction under the Code because they had little or no effect on CstKornicki executing his duties. Police often have to deal with people being difficult. Mr. Johnson argues that to find criminal obstructionhere would cast the net too wide, capturing behaviour that depends too much on the sensitivities of the particular officer. [20] As stated in Gunn at para 18: There is not, and likely cannot be, a precise legal definition of “obstructs” as the word is used in s. 129(a).

That reality is both a strengthand a weakness of the section. Furthermore, any

interpretation of “obstructs” must respect the fact that there is in this country, a right toquestion a police officer. The cases demonstrate that courts have had difficulties measuring the interaction between individuals andpeace officers and drawing the line between innocent and culpable conduct . . . [21] On the one hand, the act of obstruction need not completely frustrate a peace officer in carrying out their duties: Gunn, para22, citing R v Tortalano, (ONCA).

The essence of the offence is interfering with a peace officer engaged in theexecution of their duties: R v Glowach, 2011 BCSC 241 at para 65. [22] On the other hand, the interference with police carrying out their duties cannot be so transitory or trifling that it only causes afleeting or momentary diversion or expenditure of effort: R v Khan, 2014 ONSC 6541.

To be obstruction, the interference must make itmore difficult for the police to execute their duties: R v Porter, 2004 BCSC 1520 at para 94, citing R v Moore, (BCCA), aff’d (SCC); R v Whelan (1993), 143 AR 234, (CJ). [23] In this case, I conclude that the totality of Mr. Johnson’s actions from the start of the traffic stop until police back up arrivedfor his arrest, interfered with Cst Kornicki carrying out his duties, made it more difficult for him to do so, and constituted obstructionunder the Code. That is because the cumulative effect of Mr.

Johnson’s actions prevented Cst Kornicki from completing his duties byapproaching Mr. Johnson to finish issuing him the speeding ticket, until police backup arrived later. [24] Cst Kornicki had duties to complete. He needed to engage with Mr. Johnson again to finish issuing the speeding ticket. Hedecided that it was not safe for him to complete his duties until backup arrived. That was due to Mr. Johnson’s aggressive, unpredictableand seemingly unhinged behaviour culminating in him leaning against the officer’s vehicle door preventing exit. That was also due tothe radio information from dispatch that Mr.

Johnson had a history of threatening police, domestic violence, and had been flagged bypolice as a high risk offender. The Constable testified that in his 14 years as an officer and doing some 2,000 traffic stops a year, he hadnever seen behaviour like this. He said the situation was scary. The video evidence supports that. Also, Mr. Johnson was in his car attimes. Cst Kornicki did not know if he had any weapons in there with him. Based on the video and other trial evidence, Cst Kornicki’sdecision to not complete his duties until backup arrived, was justified. [25] Mr.

Johnson’s actions had the effect of preventing Cst Kornicki from completing his duties for the time it took backup toarrive. That took a significant amount of time. That is because the three backup officers had to travel from the detachment in SherwoodPark to the traffic stop in a rural location on a major highway several kilometres east of Sherwood Park. This was not a fleeting,momentary or trivial interference with Cst Kornicki completing his duties. Mr. Johnson’s actions continued over some time, andsignificantly delayed the police completing their duties. [26] Mr.

Johnson argues that each of his actions viewed separately were not enough for obstruction and that over the course of thetraffic stop, he eventually complied with police directions. The Crown argues that Mr. Johnson interfered with police executing theirduties every step of the way, and the cumulative effect of his actions constituted obstruction. [27] I agree with the Crown’s position. The question is whether Mr. Johnson’s actions had the effect of interfering with CstKornicki finishing his traffic stop duties until backup arrived, for officer safety. That should be assessed by considering Mr.

Johnson’sactions in their totality. That totality shows a pattern of behaviour: eventual compliance with a police direction, followed by

an act ofapparent uncontrolled rage in the next moment, repeated many times. That pattern of behaviour, rather than each instance in isolation,provides a better assessment of the safety risk facing police. Viewed that way, Mr. Johnson’s actions were obstruction under the Code,for the reasons I have given. [28] Mr. Johnson also argues that there was no evidence to show that he knew dispatch told Cst Kornicki that police flagged himas a high risk offender.

I will address that in the context of the third element of mens rea in the next section. [29] However, in my view this does not change the conclusions about the actus reus. That is because Cst Kornicki was alreadyworried about his safety when Mr. Johnson first got out of his vehicle, and the officer moved around to the back of his. Indeed, theofficer called for backup before he received that information from police dispatch. By the time dispatch gave it, Mr. Johnson had alreadybeen out of his vehicle two or three times, exhibiting the aggressive and unpredictable behaviour he showed throughout.

That behaviourcontinued after dispatch gave that information. That dispatch information was only one of the factors that led Cst Kornicki to decide tonot approach Mr. Johnson again until back up arrived. But it was Mr. Johnson’s behaviour that the officer said he had not seen before in

14 years of service. [30] I find that the evidence proves beyond a reasonable doubt the first element of the offence - that Mr. Johnson’s actions were anobstruction within the meaning of s 129(

a) of the Code. B. Did Mr. Johnson intend to obstruct police, or appreciate that his actions would have that effect? [31] Although s 129(

a) requires that obstruction be “wilful”, binding authority in Alberta is that it is a general intent offence: Gunn at para 52, cited in R v Richter, 2013 ABQB 7 (Richter) at para 12. This mens rea element requires that Mr. Johnson intended tocarry out the actions he did, which had the effect of obstructing police. There is no requirement that the evidence prove that he carriedout those actions with the motive or purpose of obstructing police: Gunn at paras 45-52. [32] Mr.

Johnson argues that “wilfully” means “with the intention of”, or that he foresees that his actions are virtually certain toobstruct police, but carries out those acts anyway, citing R v Boone, 2019 ONCA 652 [Boone] at paras 54-56. The Court held that“virtual certainty” requires a very high degree of certainty about the consequences of the accused’s actions. [33] I conclude that the requirements for intention set out in Boone do not apply in Alberta to obstruction under s 129(

a) of theCode. The Alberta Court of Appeal in Gunn decided that “wilfully” in s 129(

a) of the Code is a general intent offence, requiring onlythat the accused know what they are doing and intend to do it. Proof of intent is usually inferred from committing the act on the basisthat people intend the natural consequences of their acts. [34] In doing so, the Court in Gunn distinguished the

interpretation of “wilfully” in other cases dealing with other offences. TheCourt did so based in part on the decision in R v Daviault, (SCC), [1994] 3 SCR 63, which states that the mental elementdepends on the nature of the crime: Gunn at para 48. The purpose of s 129(

a) is to limit the actions of a citizen toward a police officerwho is executing their duty: Gunn at para 50. The Court in Gunn noted other authority holding that obstruction is a crime of relativelylow significance, supporting a general intent: Gunn at para 46. [35] Boone, on the other hand, was a decision dealing with the intention required for “wilfully” in the context of attemptedmurder.

To the extent that it sets out a different or higher standard for the mental element required for “wilfully” than the Alberta Courtof Appeal established for obstruction under s 129(a), Boone is a decision dealing with an offence that is more serious in nature thanobstructing police, and is inconsistent with the binding authority of Gunn in Alberta on the required intention for obstruction. [36] Mr. Johnson also cites R v Blackwell, 2007 BCSC 1240 [Blackwell] to support his position that the evidence must prove thathis purpose in acting the way he did, was to obstruct police.

Blackwell expresses the mens rea for obstruction this way at para 110: Similarly, the offence of obstructing a police officer in the execution of his duty is a general intent offence. The Crown must prove theactus reus which involves: (

i) conduct that constitutes an obstruction (ii) to a peace officer (iii) who is engaged in the execution of hisduty at the time. The mens rea element requires the Crown to prove the obstruction was done wilfully. In other words, the conductproscribed is conduct that was intended to obstruct the individual officer in question in the execution of his duty at the time: R v Moore, (SCC), [1979] 1 S.C.R. 195, R v Westlie (1971), (BC CA), 2 C.C.C. (2d) 315 (B.C.C.A.), R v Gunn(1997), 1997 ABCA 35 , 193 A.R. 222 (C.A.). [37] I do not read that passage in Blackwell as saying that the evidence must prove that Mr.

Johnson had the intention or purpose ofobstructing police in mind, and then acted the way he did to achieve that intention or purpose. First, that is the definition of specificintent, rather than general intent. [38] Second, Blackwell cites the Gunn decision from Alberta in support of that statement. Gunn held that only the intentionalperformance of the actus reus or act of obstruction is required, and the formation of a further ulterior motive or purpose is not. As statedby the Alberta Court of King’s Bench in Richter at para 12: . . .

The last word of the Alberta Court of Appeal is that it is an offence of general intent, so that it is enough if Mr. Richter’s acts oromissions were intentional. It does not have to be proved that his purpose was to obstruct. R v Gunn (1997) 1997 ABCA 35 ,113 C.C.C. (3d) 174 . . . [39] Third, the B.C. Court of Appeal decision in R v Westlie is also cited in Blackwell. Gunn interpreted Westlie as affirming thatobstruction is a general intent offence: Gunn at para 46. [40] For these reasons, I do not read that passage in Blackwell as saying that the evidence must prove that Mr.

Johnson had theintention or purpose of obstructing police in mind, and then acted the way he did to achieve that intention or purpose. Instead, I read thatpassage as being consistent with the Gunn decision it cites, and the principle that for general intent offences, proof of intent is usuallyinferred from committing the act on the basis that people intend the natural consequences of their acts. However, the evidence need onlyprove that Mr. Johnson intended to carry out the actions he did, and those actions had the effect of obstructing police. [41] In the previous section, I found that the effect of Mr.

Johnson’s actions was to obstruct police. Here, I find that the evidenceproves that Mr. Johnson intended to act the way he did. His actions were repeated over a prolonged period. They demonstratedaggression, intimidation, unpredictability, and uncontrolled anger. Viewed in its totality, it was a natural consequence of his actions thatCst Kornicki made the decision to not approach him again until backup arrived, for officer safety.

It was a natural consequence of hisactions that his behaviour would interfere with the police carrying out their duties, and make it more difficult for them to do so. [42] For all these reasons, I conclude that the evidence proves beyond a reasonable doubt the third element of the offence - thatMr. Johnson’s obstruction of Cst Kornicki was wilful within the meaning of s 129(

a) of the Code. C. Remedies available under the Alberta Traffic Safety Act

[43] Mr. Johnson argues that he cannot be lawfully arrested and convicted for the criminal offence of obstruction under the Codebecause this was in the context of a traffic stop under the TSA. [44] He cites R v Chanyi, 2016 ABPC 7, which is part of a line of cases reviewed in R v Hadi, 2018 ABQB 35 [Hadi]. In bothcases, the driver was required by the TSA to provide identification to police, and he refused. The police had authority under the TSA toarrest the driver for that refusal.

Instead, the police relied on that refusal to provide identification as required under the traffic legislation,to arrest the driver for obstruction under the Code. The Courts held that in those circumstances, the arrest for obstruction was notlawful. [45] The Court in Hadi reviewed two lines of cases. The first line followed Moore v The Queen, (SCC)[Moore]. That case held that police could charge a person with obstruction under the Code when they refused to identify themselves at atraffic stop which frustrated the ticket being issued.

The BC Motor Vehicle Act did not create a duty to identify oneself, and did notinclude warrantless arrest provisions if a driver refused. [46] The second line followed Iacobucci J’s reasons in R v Sharma, (SCC) [Sharma].

Those reasons state thatpolice cannot charge a person with obstruction under the Code for failing to do the very thing they are required to do under regulatorylegislation, when that legislation provides a remedy for that failure. [47] The Court in Hadi held that Sharma applied in that case because the TSA provided police with authority to arrest a driver forfailing to provide identification (at paras 38 and 40): [38] Based on the foregoing, I find that Malin PCJ was correct to direct a verdict of acquittal in the case on appeal.

The Moore case isclearly distinguishable on the facts and, given the available regulatory scheme, it was correct to follow the Sharma line of cases. . . . [40] The rule flowing from Sharma is clear: where a by-law or provincial offence provides a means of enforcement, police must resortto that means of enforcement – rather than to the criminal law of obstruction of justice – when without more an accused refuses tocomply with police demands that he do what the legislation provides . . . (emphasis in original) Hadi is binding authority on this Court. [48] However, the Hadi decision does not apply to the facts of Mr.

Johnson’s case. Here, Mr. Johnson’s actions do not breach aspecific provision of the TSA, nor does the TSA provide a remedy to police. His obstruction is from a pattern of behaviour that was soaggressive and unpredictable, that the police were justified in not approaching and engaging with him again until backup arrived, due toofficer safety. There is no corresponding driver obligation under the TSA relating to those actions.

Also, the TSA remedy provisionsempowering police to arrest generally relate to drivers who it is reasonably believed will continue committing specified driving relatedoffences under the TSA unless they are arrested, or have provided inadequate or questionable identification information: Hadi at paras31-37. The remedies provided to police under the TSA do not apply to Mr. Johnson’s actions. [49] On the other hand, the cases reviewed in Hadi indicate a basis upon which Mr. Johnson can be convicted of obstruction underthe Code in the context of a traffic stop. That arises from the line of cases following Moore.

That case held that a driver at a traffic stopcan be convicted of obstruction under the Code for actions that obstruct police, when they are not breaching a specific legal obligationthey have under the traffic legislation, and police have no remedy in that legislation for that driver action. I find that this principleapplies to the facts of Mr. Johnson’s case. Mr.

Johnson was obstructing police, he was not breaching a legal obligation he had under theTSA, and police had no remedy in the TSA for his actions. [50] The cases reviewed in Hadi suggest other possible bases for conviction for obstruction under the Code in the context ofregulatory offences. It has been stated that if a person enlarges their conduct beyond breaching the strict obligation under the regulatorylaw, to intentionally obstructive conduct, that can support a criminal obstruction conviction: Virani v HMTQ, 2011 BCSC 1032 at para81.

It has also been held that at least in some cases, police have a discretion to decide on the facts of the case whether to proceed underregulatory or criminal law: R v Hanoski, 2016 ABPC 76. No submissions were made at trial about these other possible bases forconviction. I won’t address them further, given my conclusion that Hadi does not prevent a conviction for criminal obstruction in thecontext of this traffic stop, and Moore provides authority for such a conviction in the circumstances of this case. [51] Therefore, I conclude that there is no legal principle that applies in this case that prevents Mr.

Johnson being convicted ofobstruction under the Code for his actions during this traffic stop. D.

Summary [52] For all these reasons, I conclude that the evidence proves beyond a reasonable doubt that Mr. Johnson’s actions were anobstruction, Cst Kornicki was a peace officer engaged in the execution of his duties, and that Mr. Johnson’s obstruction was wilful. Accordingly, I find Mr. Johnson guilty of obstruction under s 129(

a) of the Code. Heard on March 9 and 23, 2023. Reasons for decision delivered in Court on May 25, 2023. Dated at the Hamlet of Sherwood Park, Alberta this 29th day of May, 2023.

T.W. Achtymichuk A Justice of the Alberta Court of Justice Appearances: A. McClelland for the Crown J. Mirasty for the Accused