R. v. Wilson Date:, 2014 BCPC 21

Citation: R. v. Wilson Date: 20140106 2014 BCPC 0021 File No: 224252-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT FRANK WILSON EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: B. Wolfe Appearing on their own behalf: R. Wilson

Place of Hearing: Vancouver, B.C. Date of Hearing: January 6, 2014 Date of Judgment: January 6, 2014 [1] THE COURT: The accused is charged that on or about the 29th day of October, 2012, in Burnaby, British Columbia, he didwilfully obstruct a peace officer, Constable Shahzad Khan, in the execution of that peace officer's duty contrary to s. 129(

a) of theCriminal Code. [2] On the evening of October 29th, Police Constable Khan and Police Constable Young positioned themselves at an intersectionin the area of the Simon Fraser University. They were observing a stop sign at that intersection. Apparently complaints had been madethat cars commonly went through the stop sign turning right without stopping. [3] Khan observed a BMW vehicle allegedly driven by the accused do just that. Khan stepped into the roadway and stopped thevehicle. Khan says he demanded that the driver give him his driver's licence and motor vehicle registration.

The driver did not do so anddrove off. [4] Khan chased the vehicle, hit it several times with his flashlight and eventually a strike from his flashlight broke the vehicle'srear window causing it to shatter. The vehicle proceeded a short distance further and stopped. The driver got out, was furious, andexpressed himself so. He was taken into custody. [5] In addition to Police Constable Khan, the Crown called Constable Young and Corporal Chu, the supervisor of the twoconstables that evening. Photographs taken the night of the incident as well as during the day on a subsequent day were made exhibits.

A photograph showing a Nike jacket were also exhibited. The accused called no evidence. [6] The Crown submits and I agree that there are two issues here: 1. the identification of the driver; and 2. has the Crown proven a charge of obstruction to a criminal standard? Identification [7] Neither of the two constables involved in the incident, Khan and Young, can say that the accused was the driver. CorporalChu testified that when he arrived, the accused was in the back of Khan's police car and that he was under arrest. Khan went to himthere.

Constable Young testified that the driver was placed in Constable Khan's police vehicle and that he directed Chu to him. [8] I am satisfied that the Crown has proven that the driver of the BMW was arrested and placed in the back of Khan's police carand Constable Chu identified him as the accused. Obstruction [9] The issue here comes down to whether the Crown has proven beyond a reasonable doubt as to whether the accused had thecriminal intent necessary to obstruct Police Constable Khan in the execution of his duties.

The Crown submits that the obstruction tookplace when the accused did not accede to the demands of Khan to provide his driver's licence and registration when Khan made thesedemands standing at the accused's window. I accept the law to be that if the accused knew that Khan was a police officer and heard thedemands and refused to comply, this would amount to obstruction. [10] The accused cross-examined each of the officers.

He relied upon statements made by himself which would been part of theconduct of obstruction and his actions to show and argue that there is an explanation as to what he did and that that did not amount toobstruction. The accused's argument is similar to that discussed in R. v. Anderson, a decision of our Court of Appeal,(BC CA), [1996] B.C.J. No. 2157. I will get back to that case in a moment. [11] Although the accused did not testify, the Crown witnesses established the following: that when Khan first approached theaccused driver's window, visibility was poor. There was, in fact, mist and fog.

The photographs filed certainly show that it would bedifficult to ascertain who was on the roadway. Constable Khan says that he believed that the visibility was better than in thephotographs. However, presented with the physical evidence in the photographs, I have to accept that the visibility was, to say the least,very poor. [12] Khan, although in full uniform, due to the rain was wearing a yellow rain jacket. He had on no hat and likely had his hood up.

His appearance, as argued by the accused, was similar to a Nike jacket worn by many university students, keeping in mind this was in auniversity area. [13] There may have been markings on the jacket that would indicate RCMP or police, but I am keeping in mind that the accused issitting inside a motor vehicle looking out on a dark rainy night where fog is passing through, I am not satisfied that I can conclude thatKhan's appearance and dress alone, in particular in the poor visibility at the time, would have informed the accused beyond a reasonabledoubt that he was a police officer. [14] I am satisfied that in stopping the accused and demanding the driver's licence and registration, Constable Khan was engaged inthe execution of his duty.

[ 15 ] When Khan first addressed the accused, the car window was up and he did not identify himself as a police officer. He says that the accused responded that he did not know who Khan was and did not have to comply. Khan says that he then told the accused twice he was a police officer and repeated the demand. The accused's replies were consistent with his disbelief that Khan was, in fact, a police officer, "I don't have to stop for you." [ 16 ] In R. v.

Anderson , Chief Justice Finch, as he then was, says when discussing the charge of obstruction, referring to paragraph 30: 30 The mens rea element of this offence was, as mentioned, discussed at some length by this Court in R. v. Noel ... The intent required by s. 129 (

a) is that the accused be aware that the person he or she is obstructing is a peace officer, and that the [police] officer is engaged in the execution of his duty. It is not required that the accused know the specifics of that duty. 31 In this case the learned trial judge found that Constable Smith told the appellant why he was there and that the appellant "either did not hear or chose not to hear what he said". 32 This conclusion leaves open two possibilities. The first is that through no fault of his own, the appellant did not hear what Constable Smith said.

The second is that the appellant refused to listen to what Constable Smith said, and was therefore wilfully blind to the officer's warning. [ 17 ] The accused argues here that under the conditions in which he was stopped, the weather conditions, the car engine running, and so forth, that there should be some doubt as to whether he could hear what the constable said. His responses, however, would indicate that he did hear at least some of what Constable Khan said.

I think that on the facts before me that there is a third possibility to the possibilities set out by the Chief Justice and that is that the accused did not believe that the person purporting to be a police officer was one. This is what the accused argues was the case here. [ 18 ] It is highly likely that the accused knew that Khan was a police officer at some time during their interaction before he drove off, but I cannot conclude that the Crown has proven beyond a reasonable doubt that he had that knowledge. That knowledge, of course, has to be established before the court to the criminal standard.

The Crown has not reached that standard. [ 19 ] The accused is not guilty. [REASONS FOR JUDGMENT CONCLUDED]