R. v. Kozuchar and Kozuchar Date:, 2016 BCPC 303

Citation: R. v. Kozuchar and Kozuchar Date: 20160809 2016 BCPC 303 File No: 25716-3-C Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND STEPHEN KOZUCHAR and RYAN STEPHEN KOZUCHAR RE: RAYMOND STEPHEN KOZUCHAR REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: J. Johnston Counsel for the Defendant: W.J. Rempel

Place of Hearing: Quesnel , B.C. Date of Hearing: March15, 2015; March 16 & 17, 2016 Date of Judgment: August 9, 2016 INTRODUCTION [ 1 ] Raymond Stephen Kozuchar, the Defendant, is charged, along with the co-accused, Ryan Stephen Kozuchar, with numerous Counts on Information # 25716-3-C that are alleged to have occurred on June 21, 2014, at Quesnel including:

a) Count 1 - impaired operation of a motor vehicle contrary to Section 253(1) (

a) of the Criminal Code ;

b) Count 2 - refusing to provide a breathe sample contrary to Section 254(5) of the Criminal Code ;

c) Count 3 - wilfully obstructing a peace officer, Cst. K. Cranmer, contrary to

Section 129 (

a) of the Criminal Code ;

d) Count 4 - assault causing bodily harm to Cst. K. Cranmer contrary to

Section 270.01(1) (

b) of the Criminal Code ;

e) Count 5 - assault of a peace officer, Cst. S. Klassen contrary to Section 270(2) of the Criminal Code ;

f) Count 8 - wilfully obstructing a peace officer, Cst. S. Klassen, contrary to

Section 129 (

a) of the Criminal Code ;

g) Count 9 - escape lawful custody contrary to Section 145(1) of the Criminal Code ;

h) Count 10 - wilfully obstructing a peace officer, Cst. K. Vrolyk, contrary to

Section 129 (

a) of the Criminal Code . [ 2 ] During the course of the trial, the Crown entered Stays of Proceedings on Counts 1, 2 and 10, leaving Counts 3, 4, 5, 8 and 9 to be determined by the Court. [ 3 ] The co-accused, Ryan Stephen Kozuchar, the Defendant’s son, resolved his matters separately from the Defendant. EVIDENCE [ 4 ] The Crown called two witnesses, Cst. Kevan Cranmer and Cst. Steven Klassen, of the Royal Canadian Mounted Police (RCMP). The Defendant also gave evidence. The other person present during the incident between the Defendant and the RCMP members, Mr.

Ryan Stephen Kozuchar, did not give evidence. [ 5 ] The Crown also introduced into evidence a video recording taken from the dash mounted camera in Cst. Cranmer’s RCMP vehicle and a digital audio recording from a recorder attached to Cst. Cranmer’s uniform. The video recorder was mounted in a fixed location and, as such, captured only portions of the incident between the RCMP members and the Defendant and his son. The audio portion captured all of the sounds of the incident. [ 6 ] In addition, photographs of Cst. Cranmer and the Defendant meant to show injuries they each suffered and Cst.

Cranmer’s handcuffs were made exhibits. [ 7 ] For the purposes of this decision, the evidence will be reviewed in chronological fashion, setting out the evidence of each of the witnesses and the video and audio recordings at various moments in time. Earlier Events [ 8 ] On the evening of June 21, 2014, Cst. Cranmer and Cst. Klassen were on highway patrol, in separate vehicles, on Highway 26 east of Quesnel. Each was in their RCMP duty uniform. Cst. Cranmer was operating a fully marked RCMP vehicle and Cst. Klassen was operating an unmarked RCMP vehicle. Their plan was to set up a road block, but Cst.

Klassen became engaged in a roadside stop before that could occur. [ 9 ] Cst. Cranmer had been a member of the RCMP for six years and on the highway patrol unit for two years on June 21, 2014. [ 10 ] While on patrol Cst. Cranmer saw a white car leaving the driveway of a property he knew was owned by a prohibited driver. He said he saw the car drive up to the highway, but that it stopped just before it got to the roadway.

He decided to stop the vehicle to investigate and noticed it was driven by an older man, who he later identified as the Defendant. [ 11 ] The Defendant said that earlier in the day he and his son were moving some old vehicles. He was living in a trailer on the property which belonged to a friend where the incident occurred. He was in the process of trying to get his poorly operating car out of the way of the driveway when it was observed by Cst. Cranmer. Although the car would start, it would stall unexpectedly, so he was going to park it off to the side of the driveway.

The Defendant said he believed the car’s problem was associated with a computer module, something not related to the operation of the radio as suggested by the Crown. Even though he said he was moving the car a short distance, the Defendant had no explanation as to why his son was present other than he likes to listen to the radio. [ 12 ] The Defendant denied that he had any intent to drive the car onto the highway or go anywhere other than to park it out of the way of the driveway. The Defendant said that he had not had any liquor to drink earlier in the day. [ 13 ] The video begins with Cst.

Cranmer’s vehicle driving down the highway when the nose of a white car comes into view and

then stops on a driveway, not yet having entered onto the highway. Cst Cranmer’s vehicle stops briefly and then pulls up somewhat in front of the white car blocking its way onto the highway. Initial Interaction [ 14 ] Cst. Cranmer got out of his vehicle and walked beyond camera range where he engaged the Defendant. Cst. Cranmer said that the Defendant got out of the car as he approached and put an unlit cigarette in his mouth, which he found suspicious because in his experience actions like that are done by drivers to conceal an odour of alcohol or marijuana.

He said he asked the Defendant what he was concealing and for his driver’s licence which the Defendant provided. It was at that point he realized he was not dealing with the owner of the property who was a prohibited driver. [ 15 ] The Defendant said that when he first was confronted by Cst. Cranmer he denied concealing anything because he was not hiding anything, but he did provide his driver’s licence and got out of the car on his own accord. [ 16 ] Cst.

Cranmer said that as the Defendant returned to sit back into the driver’s seat he smelled liquor on the Defendant’s breath from a distance of three feet and noted that the Defendant had bloodshot eyes. These were the only signs of impairment he observed. He said the Defendant was complaining that Cst. Cranmer kept stopping him while driving. [ 17 ] Based on the smell of liquor and the Defendant’s bloodshot eyes, Cst. Cranmer suspected the Defendant had alcohol in his body, but had not yet formed the opinion that the Defendant was impaired by alcohol. He did not ask the Defendant if he had been drinking.

He then gave the Defendant the Approved Screening Device (ASD) demand from memory, to which the Defendant replied words to the effect of “I’m staying here” or “No, I am not going anywhere.” The Defendant at no time in his dealings with Cst. Cranmer denied having consumed any alcohol. [ 18 ] The Defendant acknowledged the words attributed to him and in the audio recording he says at one point “I’m not going anywhere” after the ASD demand was made by Cst. Cranmer and subsequently “ah, no I’m not going anywhere” when Cst. Cranmer asked if he’s going to provide a breath sample. [ 19 ] Cst.

Cranmer said he started to get a bad feeling about the younger male passenger in the vehicle and wanted to get the Defendant into custody and under control quickly. That male passenger was between 20 and 30 years of age. He turned out to be the co- accused, Ryan Stephen Kozuchar, the Defendant’s son. [ 20 ] The Defendant said that Cst. Cranmer had stopped him several times in the past while he was operating a heavy tow truck and had tried to get him angry so Cst. Cranmer could beat him up. He was not asked by either counsel why he held that view. That contention is not put to Cst.

Cranmer. [ 21 ] The Defendant acknowledged that in their initial interaction Cst. Cranmer used a pleasant and open voice and remained pleasant until the violent altercation began. First Physical Contact [ 22 ] Cst. Cranmer said that based on the Defendant’s refusal to provide an ASD sample he decided to arrest the Defendant and reached into the open car door and grabbed the Defendant’s left arm to take him out of the car while announcing that he was under arrest for refusing to provide a breath sample. The Defendant responded by momentarily grabbing his left arm with his right hand and pulling away.

However, soon after the Defendant did get out the car and said to Cst. Cranmer words to the effect of “Okay, I’ll blow”. He then put the Defendant face forward up against the car, near the car door which remained opened, in order to handcuff him. [ 23 ] The Defendant said he got out of his car without assistance and the door closed at which point he was pushed up against the car by Cst. Cranmer. He did not know that Cst. Cranmer could demand a breath sample on private property, but eventually agreed to do so. [ 24 ] The audio recording indicates that after Cst.

Cranmer arrested him the Defendant said “Okay, I’ll give ya a breathalyser, hello”. [ 25 ] Cst. Cranmer said that the Defendant was facing away from him and he was able to get a handcuff onto the Defendant’s left wrist without any resistance and had the left arm under control. He was intending to place the other handcuff onto the Defendant’s right wrist. [ 26 ] The Defendant said that his right hand was cuffed first and in trying to put the handcuffs on his left wrist, Cst. Cranmer ended up pinching his forearm with the handcuffs which caused him great pain.

He said that in reaction to the pain he raised both arms and turned to face Cst. Cranmer. [ 27 ] The Defendant said the handcuff on his right arm remained there throughout the incident and subsequently until he was arrested later that night. The Crown did not call the arresting officer to confirm or refute the Defendant’s assertion. [ 28 ] A photograph showing an injury to the Defendant’s left forearm was entered as an exhibit. The Defendant described the injury occurring as Cst. Cranmer was trying to handcuff him and that a “chunk of meat’ was taken out of his arm. [ 29 ] Cst.

Cranmer said that at approximately the same time, the Defendant’s son got out of the vehicle and walked around behind the car and approached him and the Defendant, speaking in a determined tone of voice, indicating that he wanted to take his father and leave. At that point, Cst. Cranmer readied his pepper spray canister for use but concealed it in his right hand. [ 30 ] At some point, either immediately before or after Cst. Cranmer became concerned about the Defendant’s son, he said he radioed Cst. Klassen for back up. Up until then, although words were exchanged, Cst.

Cranmer said he had not been struck by either the Defendant or his son.

[ 31 ] Cst. Klassen said that he received a radio call from Cst. Cranmer asking for his assistance at Cst. Cranmer’s location. At that point he was finishing up with a driver he had been investigating. [ 32 ] The audio reveals the Defendant’s son talking to Cst. Cranmer and telling him to treat the Defendant with respect and Cst. Cranmer indicating he was doing so. That verbal exchange continued until the violent altercation started. There is nothing on the audio recording indicating a specific backup call from Cst. Cranmer to Cst. Klassen. The Violent Altercation [ 33 ] Cst.

Cranmer said at that point the Defendant’s son unexpectedly punched him with force in the head and face region which caused him to step back. At that point, the Defendant turned around and delivered a full force punch to his face which caused him to fall backwards into the ditch. Immediately upon falling into the ditch, the Defendant’s son jumped on his back and began to assault him by driving his head into the ground and punching him in the head while yelling at him about his father. [ 34 ] Cst. Cranmer said he did not punch or strike either the Defendant or his son.

Specifically, he denied that he punched the Defendant’s son as he was approaching. [ 35 ] He also denied Defence counsel’s assertion that if he was struck at all by the Defendant it was as a result of the Defendant flailing his arms back when Cst. Cranmer misapplied the handcuffs, thereby pinching the Defendant’s upper forearm. [ 36 ] The Defendant said that as he turned around after putting his arms up he saw his son approaching. As his son got closer Cst. Cranmer punched him in the face without warning or provocation. The Defendant said that after Cst.

Cranmer punched his son he moved to the back of his car and the next thing he saw was his son and Cst. Cranmer in the ditch. Cst. Klassen’s Arrival [ 37 ] Cst. Cranmer said the assault by the Defendant’s son continued for approximately 10 seconds until Cst. Klassen’s arrival, which he detected from the smell of pepper spray being deployed. He saw Cst. Klassen pepper spraying somebody so when he got to his feet he pepper sprayed that same person. [ 38 ] Cst. Klassen said that when he heard Cst. Cranmer’s urgent call he drove directly, at high speed with his emergency lights operating, to Cst.

Cranmer’s location approximately a half kilometre away. [ 39 ] Cst. Klassen said he could not describe the details of what was occurring as he came upon the scene. As he arrived he saw Cst. Cranmer engaged in a skirmish with two other men but he could not describe how each of them was involved. He jumped out of his vehicle and quickly ran to Cst. Cranmer’s aid. By this point, Cst. Cranmer was lying face down in the ditch with the younger male on his back punching him repeatedly in the head. [ 40 ] Cst. Klassen said he was focussed on getting to the assistance of Cst. Cranmer.

As he tried to get to that location he said that the Defendant engaged him in a fashion that he could not specifically describe except to say it was a touching of some sort. In response to that he struck the Defendant a glancing blow and proceeded to where Cst. Cranmer and the Defendant’s son were. Cst. Klassen specifically denied Defence counsel’s suggestion that there is no interaction between him and the Defendant as he went to Cst. Cranmer’s aid. [ 41 ] Cst. Klassen said that as he was trying to assist Cst.

Cranmer, the Defendant came back towards them to reengage so he pepper sprayed the Defendant, which stopped his advance. He then pepper sprayed the Defendant’s son who ceased his assault on Cst. Cranmer and retreated briefly to where the Defendant was standing. [ 42 ] Cst. Klassen said he helped Cst. Cranmer out of the ditch and as he was doing so, the Defendant’s son briefly charged but went past them and through the ditch. At that point the Defendant’s son grabbed a small willow stick and waived it menacingly, but did not advance any further. Cst.

Cranmer said he saw the Defendant’s son waving a stick or small sapling. Soon after that the Defendant and his son retreated behind a shop building on the property. [ 43 ] The Defendant said that when Cst. Klassen arrived, he stopped and stared at the scene below him in the ditch for a few seconds before proceeding to assist Cst. Cranmer. He denied that he stepped in front of Cst. Klassen, or in any way interfered with him, or that Cst. Klassen struck him before going Cst. Cranmer’s assistance. The Defendant said that he did not take any steps towards where the altercation was occurring and that Cst.

Klassen turned and pepper sprayed him without warning and then pepper sprayed his son. [ 44 ] The video shows Cst. Klassen arriving in his RCMP vehicle and then running in the direction of the violent altercation. The audio indicates sounds like an altercation lasting approximately 15 seconds from start to finish. During that time it also records Cst. Klassen yelling “stand back, stand back” and “just back off” before the video shows him assisting Cst. Cranmer out of the ditch. Post Confrontation [ 45 ] Cst. Cranmer said that after the confrontation he unholstered his Taser, but that Cst.

Klassen took possession of it. That was confirmed by Cst. Klassen. [ 46 ] Cst. Klassen helped Cst. Cranmer out of the ditch and back to his vehicle and then called for backup. Several RCMP members in several vehicles arrived shortly after. An ambulance also arrived to attend to Cst. Cranmer injuries and eventually transported him to the local hospital for further treatment.

[ 47 ] The video and audio both depict Cst. Klassen assisting an obviously groggy and disoriented Cst. Cranmer who made several out of context statements and comments and complained of his injuries and his developing incapacitation. [ 48 ] Cst. Klassen remained on the scene and identified the Defendant and his son after their arrest later in the evening, but he didn’t participate in their arrests. He did participate in the arrest of the homeowner who he initially thought was the Defendant but soon determined he was not. Injuries Suffered by the Participants [ 49 ] Cst.

Cranmer said that he believed he suffered black eyes and a broken nose from being struck by the Defendant and his son at the beginning of the altercation. [ 50 ] Cst. Cranmer said that after the altercation his head hurt and it started to feel like his brain was swelling. He also had an injury to his left arm which later was diagnosed as a dislocated shoulder. Cst. Cranmer acknowledged that due to the blows to his head, he had difficulty in recalling some aspects of the incident. [ 51 ] Cst.

Cranmer said he suffered other injuries in the incident including an injury behind one ear, various bumps and bruises on his head, and a twisted ankle which aggravated a previous injury. His various injuries required him to be off work for approximately one month. [ 52 ] Cst. Klassen described Cst. Cranmer at the scene as being woozy saying Cst. Cranmer had “his bell rung pretty good”. He also observed Cst. Cranmer’s other injuries to his face and to his left arm.

Photographs introduced in evidence show those injuries. [ 53 ] The Defendant described an injury to his left arm which he said when inflicted felt like a dull knife poking his arm. He said that occurred when Cst. Cranmer tried to apply the handcuffs. He attributed the injury first to the hinges and then subsequently to the opening ends of the handcuffs. A photograph introduced in evidence shows that injury. Other Matters [ 54 ] Cst. Cranmer acknowledged that during an incident in 2010, he used excessive force when dealing with a person during a traffic stop by punching the person two times.

He said was convicted of that offence but has no criminal record. [ 55 ] Cst. Cranmer’s personnel file arrived long after all the other evidence was heard and submissions made. It was admitted with the consent of the Crown and Defence counsel and indicates that Cst. Cranmer was subject to two RCMP Code of Conduct investigations including:

a) in December 2010, he used unnecessary and unwanted physical force on a civilian female who was being investigated for impaired driving. In August 2011, he received informal discipline under the RCMP Act;

b) in January 2014 he unlawfully arrested an individual during a traffic stop. There was no issue about how Cst. Cranmer treated the individual he dealt with but rather the issue was the legality of the arrest in the first place. In February 2016 he received the following Conduct measures: i. direct supervision not more than one year; ii. forfeiture of eight hours of annual leave; and iii. written reprimand. [ 56 ] Cst. Cranmer is appealing the February 2016 finding. [ 57 ] Defence counsel did not request that Cst. Cranmer to be recalled to be cross-examined on the late disclosure. THE LAW Criminal Code [ 58 ] The following sections of the Criminal Code must be considered in this case:

a) Parties to offence 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

b) Offences relating to public or peace officer 129 Every one who

(

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such anofficer,

c) Escape and being at large without excuse 145

(1) Every one who (

a) escapes from lawful custody, or (

b) is, before the expiration of a term of imprisonment to which he was sentenced, at large in or out of Canada without lawful excuse, theproof of which lies on him, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable onsummary conviction.

d) Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose;

e) Assaulting a peace officer 270

(1) Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;

f) Assaulting peace officer with weapon or causing bodily harm 270.01

(1) Everyone commits an offence who, in committing an assault referred to in

section 270, (

b) causes bodily harm to the complainant. Case Law [59] The following cases were provided to the Court on the matters at issue in the trial:

a) R. v. Storrey, (SCC), [1990] 1 S.C.R. 241

b) R. v. Biron, (SCC), [1976] 2 S.C.R. 56

c) R. v. P.F.G., 2005 BCPC 187

d) R. v. Milino, 2009 BCSC 1802

e) R. v. Dunlop, (SCC), [1979] 2 S.C.R. 881,

f) R. v. Cunningham, 1989 ABCA 163,

g) R. v. Bruno, 2008 BCSC 1104

h) R. v. McEachern, unreported, November 12, 2014, Williams Lake Registry No. 32573-1, BCPC [60] The Court also referred to the following cases:

a) R. v. Briscoe, 2010 SCC 13; and

b) R. v. Banks, 2012 NBQB 132

SUBMISSIONS Defence [ 61 ] Defence counsel’s submissions include the following general comments about the two RCMP members:

a) Cst. Cranmer acknowledged that he suffered a head injury due to the assault by the Defendant’s son and that he did not clearly recall the entire incident;

b) Cst. Cranmer has a previous conviction for assaulting a citizen during a roadside stop;

c) Cst. Klassen confirmed Cst. Cranmer’s disorientation with his reference to Cst. Cranmer having “his bell rung”;

d) Cst. Klassen’s evidence must be considered in light of his “tunnel vision” to assist his fellow officer and his recall of other things that may have happened could be a reconstruction at the event;

e) Cst. Klassen’s memory of the events of that day was poor and that is understandable due to the stress of seeing his partner in danger. His police statement is inaccurate and his evidence unreliable. He did not even recall arresting someone that night until it was pointed out to him. [ 62 ] Defence counsel’s submissions on the specific Counts outstanding on the Information include: Count 3 [ 63 ] Cst. Cranmer said the Defendant punched him, which the Defendant denies. At the time the punch is alleged to have occurred, the Defendant was pressed up against his car facing forward. Given that Cst.

Cranmer was much larger, physically imposing and younger, it is implausible that the Defendant had enough room to turn around and strike Cst. Cranmer. It is far more likely that Cst. Cranmer was assaulted by the Defendant’s son. [ 64 ] Cst. Klassen is of no assistance with regard to this Count because he was just arriving at the scene and could only say he saw three people in a skirmish. The video shows nothing of the altercation. [ 65 ] The Defendant’s evidence was consistent, plausible and not contradicted. While Cst.

Cranmer was putting the handcuffs on the Defendant his left forearm was pinched and injured and in reaction to that he flung his arms up. Count 4 [ 66 ] Even if the Court finds that the Defendant struck Cst. Cranmer, there is no evidence that blow caused bodily harm. Any bodily harm caused to Cst. Cranmer was as a result of the Defendant’s son assault on him. The Defendant was merely standing and watching the altercation between his son and Cst. Cranmer and as such he is not a party to the assault. Count 5 [ 67 ] Cst. Klassen said the Defendant jumped in front of him and “touched” him as he ran towards the scene.

He gave no details concerning the nature of the touching, whether it was a punch or a hit, where he was touched, or the force of such a touching. [ 68 ] The Defendant said he did not touch Cst. Klassen but that they stood together for a few seconds before Cst. Klassen pepper sprayed him and then went to the aid of Cst. Cranmer. A simple touching may not equal an assault depending on the circumstances. [ 69 ] There is an alternate explanation for the contact between the Defendant and Cst. Klassen, if it occurred at all, which does not amount to an assault or an obstruction. [ 70 ] Cst.

Klassen’s evidence that he punched the Defendant a glancing blow as he ran by was never explained by him. He was concentrating on, and preoccupied with, the assault going on in the ditch and his evidence on this point could be a reconstruction. The Defendant was clear in his evidence that neither of them touched the other until he was pepper sprayed by Cst. Klassen. [ 71 ] Furthermore, Cst. Klassen confirmed that some of his notes of the incident were not as clear in their detail as he would have liked them to be.

He seemed uncertain at certain points in his evidence about why he made certain notes the way he did or why he used certain terms in those notes. Count 8 [ 72 ] The Crown was not clear in what it is alleging the obstruction to be. If it was the initial interaction between the Defendant and Cst. Klassen, that would be subsumed by Count 5. If it was the alleged second attempt by the Defendant to interfere, Cst. Klassen did not explain how the Defendant, in any way, reengaged with him prior to being pepper sprayed.

Count 9 [ 73 ] In order to be convicted for a charge of escaping lawful custody, the Defendant first has to be lawfully arrested. There was no basis in law for Cst. Cranmer to make the ASD demand. He had neither the subjective or objective grounds to conclude that the Defendant had alcohol in his body in the face of the Defendant’s denial. [ 74 ] As such, even if the Court finds that the Defendant got into a physical confrontation with either of Cst. Cranmer or Cst.

Klassen if his original arrest was unlawful then he is permitted to resist the actions of the RCMP members. [ 75 ] The Crown failed to prove that the Defendant’s “refusal” to provide a breath sample was unequivocal. The Defendant never said he would not provide a sample. What he did say was that he was not going anywhere; he wasn’t leaving. Cst. Cranmer interpreted that as a refusal. Within seconds of that, the Defendant said he would provide a breath sample. When looking at the totality of the sequence of events the Court should conclude that there was no unequivocal refusal.

That should leave the Court with a reasonable doubt. Crown [ 76 ] The Crown’s submissions include the following general comments about the evidence:

a) the Court should accept Cst. Cranmer’s evidence that he was struck by the Defendant early on in the incident. That evidence is consistent with Cst. Klassen’s evidence that when he first arrived on the scene three people were engaged in an altercation;

b) the Court should accept that the Defendant deliberately engaged Cst. Klassen physically in some manner when he was attempting to get to Cst. Cranmer’s assistance;

c) Cst. Klassen was a very careful witness who did not exaggerate or overreach. His evidence is accurate with regard to the events as he described them. In general, Cst. Klassen had good recollection of what occurred despite not remembering an arrest he was involved in at the scene;

d) the Court should determine that the Defendant’s evidence lacks credulity in many areas, but particularly when he asserts that Cst. Klassen pepper sprayed him for no reason while he was just standing and observing the incident;

e) Cst. Klassen’s evidence that he had to strike a glancing blow to the Defendant to get him out of the way and then subsequently pepper spray him when he attempted to reengage is credible. There is no good reason why he would make up such a story or be mistaken about the events;

f) the Defendant’s evidence about why he was in his car, electrical problems associated with the vehicle, and his intention in moving it to a parking location, does not explain why his son would be in the vehicle for that brief process. He should not be believed about his intention in that regard. [ 77 ] The Crown’s submissions on the specific Counts outstanding on the Information include: Count 3 [ 78 ] Even though the Crown is not seeking conviction for impaired driving, the Court should not doubt that Cst.

Cranmer had reasonable grounds to demand a sample of the Defendant’s breath and, as such, he was properly engaged in the execution of his duties as a RCMP member. [ 79 ] Cst. Cranmer had a reasonable suspicion based on the smell of liquor on the Defendant’s breath and his bloodshot eyes. Once Cst. Cranmer arrested him, the Defendant’s subsequent agreement to provide a breath sample does not nullify the arrest. [ 80 ] In order to find the Defendant’s arrest was unlawful, the Court would have to conclude that Cst.

Cranmer was lying about observing the odour of liquor on the Defendant’s breath, or that the Defendant’s eyes were bloodshot. [ 81 ] There are three separate factual bases on which a conviction can rest on Count 3; the Defendant’s punch of Cst. Cranmer, the Defendant’s physical engagement of Cst. Klassen, and the Defendant fleeing the scene after the altercation. Count 4 [ 82 ] There is no doubt that bodily harm was caused to Cst. Cranmer. The Defendant’s responsibility for that bodily harm is either through the punch in which he struck Cst.

Cranmer causing a black eye, or by virtue of the fact that he was a “party” to the offence through either his son’ s attack on Cst. Cranmer, or through his interference with Cst. Klassen who was attempting to assist Cst. Cranmer. Count 5 [ 83 ] The Defendant assaulted Cst. Klassen by lunging at him while Cst. Klassen was going to assist Cst. Cranmer. An actual touching by the Defendant of Cst. Klassen is not required for this offence to be made out.

Count 8 [84] The Defendant’s actions in getting in Cst. Klassen’s way as he tried to go to Cst. Cranmer’s assistance or by approaching Cst.Klassen as he was assisting Cst. Cranmer amounts to an obstruction. Count 9 [85] In order for there to be a lawful arrest, there must be both subjective and objective grounds. An arrest will still be lawful evenif the arresting officer is mistaken, so long as the mistake is honestly held. The Defendant was lawfully arrested by Cst. Cranmer. Byfleeing from the RCMP at the end of the altercation, he was escaping lawful custody.

DISCUSSION Credibility and Reliability [86] In this case the credibility and reliability of the witnesses must be carefully considered and reviewed in light of the video andthe audio recordings. [87] The leading case on credibility analysis remains R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, where the SupremeCourt of Canada instructs trial judges to consider the evidence and the issue of credibility as follows:

a) if the Court believes the evidence of the Defendant it must acquit;

b) if the Court does not believe the evidence of the Defendant, but is left with a reasonable doubt by it must acquit; and

c) if the Court does not believe and is not left in a reasonable doubt by the evidence of the Defendant, it must consider whether onthe basis of all the evidence it does accept that it is convinced beyond a reasonable doubt about the guilt of the Defendant. [88] The directions set out in W.(D.) have been expanded upon and commented on over the years including recently by the Court ofAppeal in R. v. Tyers, 2015 BCCA 507.

It is not necessary for the Court to slavishly follow the W.(D.) formula so long as it is clear theCourt has considered all of the admissible evidence [89] In assessing credibility and reliability there are a number of factors that are been recognized as helpful by courts including: 1. The witnesses ability to observe the events, retain them in memory, and then recall and describe them accurately later. 2. The external consistency of the witness’s evidence. Is the evidence consistent with other independent evidence which is acceptedby the Court? 3. The internal consistency of the witness’s evidence.

Does the evidence change during or between direct and cross-examination? 4. The existence of prior inconsistent statements or previous examples of where the witness has been untruthful. 5. The “sense” of the evidence. When compared to common sense does it seem impossible, implausible or unlikely; or does it“makes sense”? 6. The witnesses motive to lie or mislead the Court including bias, prejudice, or hope for advantage. 7. The attitude and demeanour of the witness. Is the witness forthcoming, cooperative and neutral, or are they defensive, belligerentor advocating?

Demeanour must be assessed by considering all possible explanations regarding how a witness presents to the Court andwith sensitivity to individual and cultural factors. [90] Credibility and reliability are essential features of every trial but there is no general training to assist in reading a witness’stestimony. Judges do not have any particular ability or divine insight greater than that of an average person to determine when a witnessis telling the truth, or not telling the truth, or is inaccurate or just wrong.

As such, judges must carefully consider the W.(D.) formula todemonstrate how they arrived at their conclusions and to explain adequately to the Defendant, the Crown and the community whycertain decisions have been reached. [91] A criminal trial is not a credibility contest. It is not a comparison or choosing of which side the Court believes, but rather basedon the totality of the admissible evidence; has the Crown proven the offence(

s) beyond a reasonable doubt. Whether or not a witness iscredible or reliable is an issue of fact and is not determined by following a specific set of rules. In considering the evidence of eachwitness the Court is permitted to accept none, some, or all of that witness’s testimony. [92] When examining the evidence the Court must consider each individual component. However, the Court must also consider allof those components together within the context of all of the admissible evidence to determine whether a conviction is maintainable.

That analysis must be applied to each Count individually, although some evidence may be common to more than one Count. Evidence in General [93] Cst. Cranmer was initially firm and resolute about his recollections of the events but acknowledged in cross-examination thathis head injuries may have affected his recollections.

[ 94 ] The video and audio shows Cst. Cranmer demonstrating obvious physical signs consistent with having been assaulted. In the words of Cst. Klassen, Cst. Cranmer clearly had “his bell rung” and was quite obviously in cognitive distress. He was stumbling around and displaying serious balance impairment and speaking in a nonsensical manner. [ 95 ] Upon his arrival Cst. Klassen moved quickly to aid Cst. Cranmer and the violent altercation was resolved within seconds of his intervention. It was a highly charged situation for Cst.

Klassen and he acknowledged in his evidence that some of his police report notations were not as clear or concise as they could or should have been in the circumstances. [ 96 ] The Defendant was clear in his evidence that he was upset with Cst. Cranmer from their initial interaction because he felt picked on and believed Cst. Cranmer was trying to antagonize him. He presented evidence of an injury to his left arm he said occurred when Cst. Cranmer was trying to handcuff him and which caused him to throw up his arms in pain. He did not indicate or demonstrate any concern or distress over the beating of Cst.

Cranmer by his son. Party to the Offence [ 97 ] One of the ways the Crown seeks to prove Counts 3 and 4 is by convincing the Court that the Defendant was a “party” to the actions of his son by acting in a fashion that aided and abetted his son in carrying out the assault of Cst. Cranmer. [ 98 ] As described in Briscoe aiding and abetting requires more than a passive presence or acquiescence to what is occuring.

There must be some action or omission which permits or assists the principal in committing the offence. [ 99 ] In addition, the Crown must prove either that the Defendant had knowledge of or was wilfully blind to the fact that his son was going to assault Cst. Cranmer and intended to assist him or that once the assault on Cst. Cranmer commenced he took actions to permit it to continue. Location of the Events [ 100 ] Although it was not addressed in detail in the evidence of any of the witnesses or the submissions of counsel, the location of the Defendant’s car and his interactions with Cst.

Cranmer could be crucial to determining the legality of Cst. Cranmer’s investigation and subsequent arrest of the Defendant. [ 101 ] Cst. Cranmer originally decided to stop the Defendant’s car because he was going to investigate a different person for driving while disqualified or prohibited. Such an investigation can only legally occur on a street, road, highway or other public place and not on private property. [ 102 ] If Cst. Cranmer entered onto private property to investigate something that was not yet an offence he would be a trespasser.

If he then determined that another offence may be occurring by a different person would he be legally entitled to investigate and arrest that person? [ 103 ] If the Defendant’s car was no longer on private property then the investigation by Cst. Cranmer does not have any of the potential legal complexities described above. [ 104 ] Neither the Defendant nor Cst. Cranmer or Cst. Klassen were asked to give a definitive answer regarding the Defendant’s car’s location leaving the Court to try to determine the issue by examining the video evidence.

Relying on video evidence to determine facts must be done with care and the knowledge that the angle of the camera might result in some perception inaccuracies. [ 105 ] A careful and detailed examination of the video depicts the Defendant’s car driving out from the driveway but stopping just short of the travelled portion of the highway. However, a good portion of the car is well past what appears to be the property’s fence line, a power pole, a roadside school sign, and the roadside ditch where the violent altercation occurred. [ 106 ] Based on that evidence Cst.

Cranmer was not a trespasser on private property when his investigation commenced or during his subsequent dealings and arrest of the Defendant and the violent altercation with the Defendant’s son. [ 107 ] In addition, there was no evidence that at the time of the initial interaction the Defendant’s car was in anyway disabled. The Defendant’s evidence was that it had given him problems earlier in the day and he was moving it out of the way of other traffic in the driveway; not that it had stalled in the driveway when Cst.

Cranmer came upon the scene. [ 108 ] In fact, the video shows the car approaching the highway and stopping as Cst. Cranmer’s RCMP vehicle comes into view. The Defendant’s explanation of his intentions and his explanation as to why his son would be in the car if it was just going to be moved a short distance is unconvincing. Initial Interaction [ 109 ] Cst. Cranmer had dealings with the Defendant for approximately 25 seconds before he made the ASD demand. During that time they were in close proximity with each other. Given Cst.

Cranmer’s several years of policing experience that time frame was more than enough for him to determine whether or not he smelled liquor and where that smell was emanating from. [ 110 ] The Defendant did not dispute Cst. Cranmer’s evidence of him getting out of the car and putting a cigarette into his mouth. He did not contest the validity of Cst. Cranmer’s demand by stating, as he did in Court, that he had not been drinking. He acknowledged that Cst. Cranmer was polite and even tempered in his dealings with the Defendant prior to his son became involved.

[ 111 ] Cst. Cranmer only observed two indicia of impairment, the odour of liquor and bloodshot eyes and did not ask the Defendant if he had been drinking. However, in considering all of the circumstances surrounding their interaction Cst. Cranmer’s decision to make the ASD demand of the Defendant was both subjectively and objectively reasonable. [ 112 ] Although there may have been more than one possible

interpretation of the Defendant’s comments regarding “not going anywhere”, Cst. Cranmer’s conclusion that the Defendant was refusing to provide a breath sample was an acceptable

interpretation in the circumstances and provided the reasonable and probable grounds for him to arrest the Defendant. [ 113 ] The Defendant’s subsequent statement that he would provide a sample may have provided a defence at trial to the charge of refusing to provide a breath sample but it does not invalidate or nullify that at the time he was under lawful arrest. First Physical Contact [ 114 ] During the arrest process Cst. Cranmer became so concerned about the Defendant’s son that he readied his pepper spray canister and held it concealed in his right hand.

This was occurring at the same time he was trying to handcuff the Defendant. [ 115 ] The Defendant’s son came around the car and in a determined tone of voice expressed his intention to take the Defendant from Cst. Cranmer’s charge and leave the area. This further raised the tension level of the situation. [ 116 ] In his attempt to multitask, by watching the Defendant’s son, dealing with the pepper spray canister and handcuffing the Defendant, Cst.

Cranmer handcuffed the Defendant’s right arm first and was attempting to put the handcuffs on the left arm when he misapplied them causing the injury described by the Defendant and depicted in the photograph which directly resulted in the Defendant’s subsequent actions. The Violent Altercation [ 117 ] Cst. Klassen’s evidence on this matter is of no assistance since he saw nothing more than three people involved in a skirmish. [ 118 ] When the violent altercation commenced the Defendant was facing away from Cst.

Cranmer and his son and was not well positioned to observe who may have struck the first blow. [ 119 ] Cst. Cranmer was fully occupied with trying to get the Defendant handcuffed while holding pepper spray in his right hand, ready to be deployed due to his concerns about the Defendant’s son. He had little opportunity or ability to throw a punch. [ 120 ] Once the altercation commenced it was the Defendant’s son who immediately had the upper hand and was on top of Cst. Cranmer as they went into the ditch.

Based on all of the evidence, the Defendant’s evidence of who was punched first is rejected. [ 121 ] The evidence of Cst. Cranmer that the Defendant’s son threw the first punch makes sense in light of the previous findings. That punch, unexpected and without provocation, delivered by a young man mentally and physically stunned Cst. Cranmer. [ 122 ] In light of that blow Cst. Cranmer’s ability to observe and recall subsequent events were impaired.

As such, his evidence that the Defendant purposely punched him in the face must be contrasted with the Defendant’s evidence that he flung his arms up when injured by the misapplication of the handcuffs to his left arm by Cst. Cranmer who was distracted by the Defendant’s son approach. [ 123 ] Cst. Cranmer was struck by the Defendant, but it more likely occurred not as he described, but as a result of the Defendant flinging his arms up in pain. That reaction and the Defendant turning around may have injured Cst. Cranmer and/or propelled him into the ditch.

However, the Crown has not proven beyond a reasonable doubt that the Defendant intended to assault Cst. Cranmer, even if such actions resulted in bodily harm and that a conviction should result from the Defendant’s action at that point. In addition, such an instinctive pain reaction by the Defendant does not amount to an obstruction of Cst. Cranmer. [ 124 ] The Crown has also failed to prove that the Defendant was a party to his son’s assault on Cst. Cranmer at that point in time. The Crown has not shown that prior to Cst.

Klassen’s arrival that the Defendant was anything more than a bystander who may have been happy that Cst. Cranmer was being assaulted, but was not engaged in any act or omission to permit the assault to occur or continue. Cst. Klassen’s Arrival [ 125 ] The video shows Cst. Klassen’s RCMP vehicle arriving at the scene at high speed with emergency lights deployed. It then shows Cst. Klassen exiting the vehicle and quickly running off camera in the direction of the violent altercation. Very soon after that the altercation ends. [ 126 ] Although the Defendant may have perceived that Cst.

Klassen stood and watched the altercation for several seconds that perception does not accord with the video and audio which records Cst. Klassen’s immediate involvement in getting the Defendant’s son off Cst. Cranmer and deploying his pepper spray. [ 127 ] The Defendant said he did nothing to impede Cst. Klassen getting to Cst. Cranmer location. Cst. Klassen said the Defendant engaged him in a fashion which he could not clearly recall or accurately described but it caused him to give the Defendant a “glancing blow” as he proceeded to Cst.

Cranmer’s aid. [ 128 ] The Crown submits that the Court should conclude that despite Cst. Klassen’s admittedly incomplete description of the initial interaction between him and the Defendant, that the Defendant was, at law, obstructing him. [ 129 ] Cst. Klassen’s evidence was given a frank and fair manner but did not demonstrate the necessary level of detail and completeness expected of an RCMP member. It is not reliable enough to found a conviction either that the Defendant was trying to assault or obstruct Cst. Klassen during their initial interaction.

[ 130 ] It is quite possible that in his haste to get to Cst. Cranmer, Cst. Klassen brushed by or even had to push past the Defendant who may have been standing close by as he observed the altercation in the ditch. Reengagement [ 131 ] The Defendant denied making any move towards Cst. Klassen and Cst. Cranmer at any time and that Cst. Klassen pepper sprayed him without any warning or provocation. [ 132 ] Cst. Klassen said that while trying to assist Cst. Cranmer he saw the Defendant approaching and pepper sprayed him first before pepper spraying his son. [ 133 ] The audio records Cst.

Klassen shouting “Stand back”. It does not make any sense that such an utterance would have been made to the Defendant’s son since he was on top of Cst. Cranmer. It was made to the Defendant because he was coming towards the two constables and his son and resulted in Cst. Klassen having to pepper spray him. Those actions by the Defendant amounted to an obstruction. Post Confrontation [ 134 ] The Defendant did leave the scene with his son and was not arrested again until several hours later. In fleeing as he did he escaped the lawfully custody of the RCMP. [ 135 ] Cst.

Cranmer’s injuries clearly resulted in bodily harm to him although the Defendant was not responsible for those injuries. Other Matters [ 136 ] The conduct of Cst. Cranmer in previous situations which have resulted in RCMP discipline measures being taken against him are not persuasive of any suggestion or submission that he acted illegally or inappropriately in this case. DECISION [ 137 ] Based on the evidence, the submissions of counsel, the applicable law and the findings of fact the Defendant is not guilty of:

a) Count 3 - Obstructing Cst. Cranmer;

b) Count 4 – Assault causing bodily harm to Cst. Cranmer;

c) Count 5 – Assault of Cst. Klassen. [ 138 ] The Defendant is guilty of:

a) Count 8 – Obstructing Cst. Klassen;

b) Count 9 – Escaping lawful custody. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of British Columbia