R. v. Humpherville, 2018 BCPC 55

Citation: R. v. Humpherville 2018 BCPC 55 Date: 20180126 File No: 29260-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NEELY HUMPHERVILLE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: B. Zacharias

Appearing on her own behalf N. Humpherville Place of Hearing: Prince Rupert , B.C. Date of Hearing: July 31, September 21 and December 8, 2017, January 22, 2018 Date of Judgment: January 26, 2018 I ntroduction [ 1 ] Neely Humpherville is before the court charged with assaulting Patrick Lindquist on February 17, 2016. Patrick Lindquist is a former by-law officer for the City of Prince Rupert. Officer Lindquist and Ms.

Humpherville became involved in an altercation when Officer Lindquist attempted to apprehend one of her dogs which had escaped from the yard at 1441 Pigott Place, Prince Rupert, B.C. [ 2 ] Officer Lindquist said Ms. Humpherville hit, punched and pushed him when he attempted to catch her dog in her yard on the late afternoon of February 17, 2016. [ 3 ] Ms. Humpherville says the Crown has failed to prove her guilt beyond a reasonable doubt. [ 4 ] This matter came before me for trial on July 31, September 21 and December 8, 2017 and January 22, 2018. Ms. Humpherville was self-represented.

I heard oral evidence from Crown witnesses Patrick Lindquist and Constable Phillips and I received into evidence one exhibit. On December 8, 2017, I heard evidence from the defence witness, Sean Offut. The matter was adjourned to afford Ms. Humpherville an opportunity to subpoena additional witnesses and have the non-resident witnesses appear by video. [ 5 ] On January 22, 2018, Ms. Humpherville applied to have two out-of-province witnesses appear by video. The two witnesses, Ms. Humpherville’s niece, Siara Shumka and Ms. Shumka’s mother, Naomi McLeod, were present at the scene on the day of the offence. Ms.

Shumka was an eye witness to at least a portion of the incident giving rise to the charges before the court. Neither of these witnesses was interviewed by the police in relation to this matter, although they were willing to provide a statement. I concluded their evidence would likely assist the court in its truth seeking function and ordered their attendance by video at the Court’s expense. Issue: [ 6 ] The issues in this case are: a. Has the Crown proven all the elements of the offence of assault beyond a reasonable doubt? b. Is the accused entitled to a defence of person or property?

Background Facts Evidence of the Crown witnesses [ 7 ] Patrick Lindquist was an animal control by-law enforcement officer for the City of Prince Rupert, B.C. (the “City”) from November 14, 2014 to January 6, 2017. [ 8 ] On February 12, 2016, he attended a meeting with his supervisor, Tanya Austin, with respect to a letter of complaint the City received from Ms. Jenny Beauchamp. Ms. Beauchamp complained there were dogs living at 1441 Pigott Place in the City which were at large and frightening people. Ms.

Austin directed Officer Lindquist to investigate the complaint, and if necessary, take action against the dogs. [ 9 ] Officer Lindquist checked the City’s records and confirmed no licences had been issued for dogs at 1441 Pigott Place. He also spoke to Ms. Beauchamp directly about the concerns she voiced in her complaint to the City. [ 10 ] On the morning of February 12, 2016, Officer Lindquist went to 1441 Pigott Place and spoke to the resident and dog owner, Neely Humpherville. At the time, Officer Lindquist was dressed in the duty uniform of a by-law enforcement officer. He explained to Ms.

Humpherville who he was and why he was at her door. Ms. Humpherville assured him that she and her dogs were just visiting the City briefly and would soon return to their home in Port Simpson. [ 11 ] As this was his first contact with Ms. Humpherville Officer Lindquist’s approach was focused on providing her with advice and seeking compliance. Officer Lindquist advised Ms. Humpherville of the issues concerning her dogs and the penalties for having unlicenced dogs running at large. Specifically, he told her that pursuant to the Dog Control By-law 3250, she could not have a dog at large in the City.

All dogs needed to be licenced and leashed when in public. [ 12 ] Officer Lindquist describes his first contact with Ms. Humpherville as pleasant. When they parted company, Officer Lindquist believed he had secured Ms. Humpherville’s compliance. In any event, she was soon returning with her dogs to Port Simpson and therefore out of his jurisdiction. [ 13 ] During his entire first encounter with Ms. Humpherville, Officer Lindquist remained outside her home on the porch. He said it was his practice not to gesture inside a home where there are dogs running loose, as in this case.

He is unsure how the dogs will react to his presence. Moreover, when Ms. Humpherville answered the door, she was still in her night clothes, which made Officer Lindquist somewhat uncomfortable. [ 14 ] On February 15, 2016, Officer Lindquist received further correspondence from Ms. Beauchamp particularizing her concerns

with Ms. Humpherville’s dogs. [ 15 ] On February 16, 2016, the Royal Canadian Mounted Police (“RCMP”) received a complaint from the neighbours of 1441 Pigott Place, Prince Rupert, B.C. that three pit bulls were running loose. Constable Phillips, Constable Hillary Murray and Corporal Newton responded to the complaint.

The RCMP also dispatched Officer Lindquist to assist with apprehending the dogs. [ 16 ] When the RCMP officers arrived at Pigott Place, Constable Phillips observed a white dog running loose and unleased on the road, a smaller, younger tan dog, also running loose and unleased in the yard of the residence to the right of 1441 Pigott Place and a third dog in the yard of 1441 Pigott Place. The dog’s owner or caregiver was nowhere in sight. [ 17 ] The RCMP officers were able to corral the dogs and shoo them back into the yard at 1441 Pigott Place. Constable Phillips noted the gate to 1441 Pigott Place was insecure.

Officer Lindquist arrived on the scene after the RCMP had secured the dogs in the yard at 1441 Pigott Place. The RCMP Officers briefed him on their observations and activities in relation to the dog. [ 18 ] Officer Lindquist noted the yard at 1441 Pigott Place was fenced; however, the gate was wiggly and would open if pushed or shoved. [ 19 ] Officer Lindquist went into the yard at 1441 Pigott Place which he is authorized to do under the Dog Control Bylaw. He encountered three young pit bulls and took the opportunity to introduce himself to the dogs.

Officer Lindquist found the two younger dogs very friendly and playful; however, the older one was somewhat stand-offish. He was heartened to discover the dogs were not as bad as he had been led to believe. [ 20 ] Officer Lindquist went to the front door of the residence at 1441 Pigott Place. Ms. Humpherville opened the front door and the dogs flooded into the house. Officer Lindquist remained on the front porch. He again introduced himself to Ms. Humpherville as the by- law officer. He advised Ms. Humpherville her dogs were at large in the community and the RCMP had returned them to her yard.

He also told her he wanted to speak to her about the dogs being at large. [ 21 ] Ms. Humpherville’s demeanour changed markedly from Officer Lindquist’s last encounter with her. Gone was the calm, rational and respectful person he had met a few days ago, and in her place was a highly agitated woman screaming accusations against him and the RCMP officers. Ms. Humpherville vehemently accused the officers of letting her dogs out and harassing her. As her harangue wore on, Officer Lindquist told Ms. Humpherville he may have to apprehend her dogs. Ms.

Humpherville told Officer Lindquist he had no right to be at her house and ordered him to leave. [ 22 ] Officer Lindquist tried to work through Ms. Humpherville’s animosity in an effort to secure her compliance. He did not want to take away her dogs or issue her a ticket. In his experience, people often become hostile and upset when dealing with a by-law enforcement officer on issues concerning their pets. Officer Lindquist accepts that sometimes it takes more than one or two contacts to gain an owner’s cooperation. Although he had some concern for public protection, Officer Lindquist’s focus was on getting Ms.

Humpherville to commit to keeping her dogs on her property. The licencing was something that could wait for another time. [ 23 ] Ms. Humpherville, however, was not prepared to cooperate with Officer Lindquist on February 16, 2016. She slammed the door and told him she intended to call the police. Officer Lindquist implored her to do so because he could use their assistance. Ms. Humpherville did not call the RCMP so Officer Lindquist did. He asked the RCMP to send an officer to help keep the peace at 1441 Pigott Place where he was dealing with an uncooperative dog owner.

While waiting for the RCMP officers to arrive, Officer Lindquist remained outside on the porch and continued to try and engage Ms. Humpherville in a discussion about her dogs through the closed door. [ 24 ] Eventually RCMP Constables Phillips and Murray arrived at 1441 Pigott Place in response to Officer Lindquist’s request for assistance. Constable Phillips identified himself as a police officer and tried reasoning with Ms. Humpherville through the closed front door. Constable Phillips explained to Ms.

Humpherville that Officer Lindquist was the by-law officer who was just trying to do his job and was lawfully on her property. Constable Phillips told Ms. Humpherville they wanted to speak to her about keeping her dogs inside the yard, as they were at large and the public viewed them as a dangerous breed. [ 25 ] Ms. Humpherville’s anger toward the officers escalated. She refused to open the door and screamed the officers had no reason to be on her property and were harassing her. [ 26 ] Officer Lindquist and the two RCMP officers remained on Ms.

Humpherville’s front porch trying to reason with her through the closed door. Officer Lindquist had in his hand a binder of the City’s by-laws he wanted to show Ms. Humpherville. The officers tried assuring Ms. Humpherville they were not going to take her dogs away, all they wanted was to talk to her about keeping the dogs secure. [ 27 ] As Ms. Humpherville steadfastly refused to open the door and the dogs were secure inside her residence, the officers left. They could not force their way into her home without a warrant, which they did not have and did not consider necessary.

Officer Lindquist was emphatic that at no time did he try and force his way into Ms. Humpherville’s home. [ 28 ] After the February 16, 2016 encounter involving Ms. Humpherville and the police, Ms. Austin instructed Officer Lindquist to apprehend Ms. Humpherville’s dogs, whether they were at large or in her yard. [ 29 ] When he received this directive, Officer Lindquist did not perceive the dogs a threat to his personal safety. He recognized others less confident with dogs may not share this impression. The City and the RCMP had received numerous complaints about the unleased pit bulls running at large. Ms.

Humpherville, the dogs’ owner or caregiver, refused to cooperate. It was time to enforce the City’s animal control by-laws by apprehending the dogs. [ 30 ] The following day, on February 17, 2016, Officer Lindquist was patrolling in the City. Shortly before 6:00 p.m., he drove up Pigott Avenue close to its intersection with Kay Smith Boulevard. Officer Lindquist encountered a man and woman standing on the boulevard in front of 1445 Pigott Place waving him down. Officer Lindquist stopped and discovered the woman trying to get his attention was Jenny Beauchamp. Officer Lindquist also saw one of Ms.

Humpherville’s pit bulls loose on the street.

[ 31 ] Officer Lindquist went to retrieve a catch pole from his vehicle. A catch pole is a six foot aluminium pole with a loop fabricated inside it used to snare or restrain dogs. An unidentified male approached Officer Lindquist and introduced himself as an ex- SPCA worker. He told Officer Lindquist he was familiar with a catch pole and could assist. Officer Lindquist gave the man his catch pole and took for himself a catch whip, which he considered an inferior tool for snaring a dog. [ 32 ] As Officer Lindquist was walking into the intersection of Pigott Place and Kay Smith Boulevard, Ms.

Humpherville pulled up in a small car. She demanded to know what Officer Lindquist was doing with her dog. Officer Lindquist told Ms. Humpherville he was going to catch the dog. He tried to do just that, but the dog bolted. As Officer Lindquist pursued the dog with his catch whip, Ms. Humpherville followed him angrily and loudly denouncing him for letting her dog out and threatening to sue him. [ 33 ] Officer Lindquist followed the dog through the yard at 1445 Pigott Place to 1441 Pigott Place. He observed the dog scale a small little fence into the backyard of 1441 Pigott Place.

Officer Lindquist continued to follow the dog attempting to snare it with his catch whip. As he was doing this, Ms. Humpherville grabbed the fabric of Officer Lindquist’s uniform. She forcefully pushed down his hand to prevent him from catching the dog. He told Ms. Humpherville to keep her hands off of him, reloaded the catch whip and made a further attempt to snare the dog. Ms. Humpherville again grabbed the fabric of Officer Lindquist’s coat. She began pulling and pushing Officer Lindquist until he dropped the catch whip in order to deal with her aggression. [ 34 ] Officer Lindquist told Ms.

Humpherville to keep her hands off of him and pushed her away. She responded with a “round house punch” to his face at his right temple. He said Ms. Humpherville delivered the blow with such force he saw stars. Ms. Humpherville followed up the first blow with a second one to Officer Lindquist’s head beside his ear. Officer Lindquist grabbed her by the lapels of her jacket. Ms. Humpherville struck him again, this time in the neck. He stumbled away from her. [ 35 ] Officer Lindquist crouched down in an attempt to retrieve his catch whip pole with the intention of leaving the scene. When he stood up, Ms.

Humpherville charged him, grabbed his jacket with both hands and pushed him backwards. Officer Lindquist lost his balance and began peddling backwards trying to regain his equilibrium. Ms. Humpherville kept pushing him until Officer Lindquist fell backwards on the top rail of a three foot chain link fence. When he fell backward, Ms. Humpherville landed on top of him. [ 36 ] Officer Lindquist fell on the metal pole of the chain link fence with such force he could hear his ribs snap. His head was swimming from the blows. He continued to fight through the pain in an effort to defend himself.

Eventually he succeeded in overcoming Ms. Humpherville and pinned her to the ground. Ms. Humpherville yelled then pleaded with Officer Lindquist to let her go, which he did. Ms. Humpherville got up and walked away. Officer Lindquist blacked out from the pain and drifted in and out of consciousness. [ 37 ] At some point Officer Lindquist managed to retrieve his cell phone. It took a while before he could focus sufficiently to even dial 911.

After calling for help, Officer Lindquist lost consciousness and awoke surrounded by firemen and ambulance paramedics who had come to his rescue. [ 38 ] The RCMP received Officer Lindquist’s distress call at approximately 5:50 p.m. and Constable Phillips responded to the dispatch. He found Officer Lindquist lying on his back between a bush hedge and chain link fence on the right side of the yard at 1441 Pigott Place. Officer Lindquist was alone and in a great deal of pain.

He told Constable Phillips he had been assaulted by the home and dog owner. [ 39 ] While attending to Officer Lindquist, a neighbour approached Constable Phillips. He introduced himself as Steve Offut and claimed to have witnessed the altercation. Constable Phillips asked him to call an ambulance for Officer Lindquist. [ 40 ] About this time Ms. Humpherville appeared. She walked aggressively towards Constable Phillips screaming that Officer Lindquist hit her first and was trying to take her dogs.

Constable Phillips arrested her for assault. [ 41 ] Although the medical report put into evidence as Exhibit 3 indicates otherwise, Officer Lindquist believed his ribs were broken. In any event, it took Officer Lindquist two months to recover from his injuries. Evidence of Defence Witnesses Sean Offut [ 42 ] Mr. Offut lives on the property neighbouring 1441 Pigott Place, Prince Rupert B.C. As of the offence date he had never had contact with Ms. Humpherville. He was familiar with Ms. Humpherville’s dogs as he had seen them out and about with her. Before February 17, 2016, Mr. Offut had never seen Ms.

Humpherville’s dogs at large nor had he ever complained about them. Mr. Offut acknowledges there were other dogs of a similar breed to Ms. Humpherville’s which lived in the vicinity of 1441 Pigott Place. Mr. Offut was very familiar with these local dogs, which he referred to as “Tug” and “Romo” and was confident he could distinguish them from Ms. Humpherville’s dogs. [ 43 ] On the afternoon of February 17, 2016, Mr. Offut arrived home to take his dog for a walk. One of Ms.

Humpherville’s dogs, subsequently identified as Nola, was in his yard, preventing him from entering his residence or getting back into his vehicle. [ 44 ] Officer Lindquist arrived in his van. He had in his hand a catch pole and was pursuing Nola, who, at the time, was in Mr. Offut’s yard. Because he had volunteer and work experience with the BCSPCA and the Prince Rupert Wildlife Welfare, Mr. Offut offered to assist Officer Lindquist in apprehending Nola. [ 45 ] Approximately five minutes after Officer Lindquist arrived at Mr. Offut’s residence, Ms. Humpherville drove up in a small black vehicle.

She got out of the vehicle and tried to prevent Officer Lindquist from apprehending her dog. She tried to take control of Nola and direct the dog back to the yard at 1441 Pigott Place. Ms. Humpherville positioned herself between Officer Lindquist and Nola to block him from seizing the dog. Mr. Offut describes this encounter as a “heated moment”; however, he never saw Ms. Humpherville initiate contact with Officer Lindquist nor did he witness any pushing or shoving or hitting.

[ 46 ] Mr. Offut began speaking to the neighbour about the events that were unfolding. The neighbour, most likely Siara Shumka, was asking him what was going on and who was in the yard. Because of this distraction, Mr. Offut did not witness all the interactions between Officer Lindquist and Ms. Humpherville. [ 47 ] After he finished speaking to the neighbour, Mr. Offut went around the side of the house to see what was happening. He saw Officer Lindquist and Ms. Humpherville go over the hill and into the neighbouring yard. He described the hill as a slippery sheer rock face with a six foot drop. It appeared to Mr.

Offut that Officer Lindquist and Ms. Humpherville went over the hill in a manner which indicated they lost their balance, although he could not say why. He could not see if there was any pushing or shoving or if they simply lost their footing. [ 48 ] Officer Lindquist and Ms. Humpherville went around the back of the house and were out of Mr. Offut’s sight for a period of time. He could not say whether during that time he heard any yelling or carrying on. If he did hear any words exchanged between Officer Lindquist and Ms. Humpherville, he does not recall what they were. Mr.

Offut describes this incident was over very quickly. [ 49 ] After observing Officer Lindquist and Ms. Humpherville tumbling over the “cliff”, Mr. Offut went to the back of the house at 1441 Pigott Place to see if they were okay. He found Officer Lindquist and Ms. Humpherville in the yard at 1441 Pigott Place. Ms. Humpherville was getting up off the ground and went looking for her dog. Officer Lindquist was on his back; he wasn’t moving and to Mr. Offut, appeared injured and in pain. Officer Lindquist pulled out his cell phone and called for assistance. Mr.

Offut advised him not to move in case he was injured. [ 50 ] Mr. Offut said did not see Nola when he went into the yard to check on Officer Lindquist and Ms. Humpherville. [ 51 ] Mr. Offut said the yard at 1441 Pigott place was not entirely enclosed with fencing. On February 16, 2016, one

section of the fence consisted of a scrap piece of chicken wire which had fallen down. [ 52 ] Mr. Offut said it appeared to him Ms. Humpherville’s primary concern was for the welfare of her dog. She clearly did not want Nola apprehended. Mr. Offut was not aware of any further problems with Ms. Humpherville’s dogs after the February 17, 2016 incident. [ 53 ] Mr. Offut provided an audio recorded statement to the police immediately after the incident in the police cruiser, which subsequently went missing. Siara Dawn Shumka [ 54 ] Ms. Shumka is Ms. McLeod’s daughter and Ms. Humpherville’s niece. In February 2016, Ms.

Shumka was living at 1441 Pigott Place with her mother, Naomi McLeod. Ms. Shumka was 19 at the time of the offence and 21 on the date she testified. Ms. Shumka confirmed that Ms. Humpherville was not living at 1441 Pigott Place on February 17, 2016. Rather, Ms. Humpherville came to visit with her three dogs a couple of days before the incident on February 17, 2016, and departed a few days later. Ms. Shumka considered Ms. Humpherville a good dog owner. [ 55 ] On February 17, 2016, Ms. Shumka was at home at 1441 Pigott Place. She went outside and observed Ms.

Humpherville having an altercation with a man in the back yard who she did not know or recognize, but who I accept was Officer Lindquist. Ms. Shumka did not identify Officer Lindquist as a by-law officer; she had never seen him before and did not notice if he was wearing a uniform. Ms. Humpherville and Officer Lindquist were in the back yard of 1441 Pigott Place, by the fence. Ms. Shumka described the altercation as verbal which quickly became physical. Ms. Shumka did not understand what was going on. It appeared to her Officer Lindquist was trying to get into the yard. The altercation happened so quickly Ms.

Shumka could not describe what had occurred with any particularity whatsoever. I note she did agree with Ms. Humpherville’s suggestion that Officer Lindquist was behaving rudely and aggressively without providing any evidence to substantiate this allegation. [ 56 ] At some point, Ms. Humpherville called out to Ms. Shumka for help. Ms. Shumka didn’t know what do so she ran into the house and called her mother, who was at work. Ms. Shumka believed the situation had gotten out of hand and it appeared to her that Ms. Humpherville needed help. [ 57 ] In an effort to find out what was going on, Ms.

Shumka went back outside and spoke to the neighbor from across the street. Although she did not know the neighbour’s name, I find she was most likely speaking to Mr. Offut. He informed her the altercation had something to do with Ms. Humpherville’s dogs. [ 58 ] At no time did Ms. Shumka observe Officer Lindquist with anything in his hand, such as something resembling a catch whip pole. [ 59 ] Ms. Shumka remained in the back yard and was present when Ms. Humpherville was arrested. She did not see Mr. Offut approach Officer Lindquist and offer assistance. [ 60 ] Ms.

Shumka gave no statement to a police officer at the time of the incident, although she was willing to do so, if asked. However, no Police Officer asked her if she was willing to give a statement. She had not discussed her evidence with Ms. Humpherville and up until a month or so ago, she did not expect to be testifying in this trial. Naomi McLeod [ 61 ] Naomi Christine McLeod is 43 years old and Ms. Humpherville’s sister. At the material time Ms. McLeod lived at 1441 Pigott Place, Prince Rupert B.C. with her daughter, Siara Shumka. They lived in that residence for about a year and one-half. Ms.

McLeod did not know Sean Offut. [ 62 ] A few days before the offence date, Ms. Humpherville came to stay with Ms. McLeod while attending the All Native Basketball Tournament in Prince Rupert. Ms. Humpherville brought with her three dogs. Ms. McLeod described the dogs as very friendly and non-

aggressive. Prior to February 17, 2016, Ms. McLeod was not made aware of any complaints against the dogs. Ms. McLeod considered Ms. Humpherville an excellent dog owner who treated her dogs like her children. [ 63 ] Ms. McLeod was not home when Officer Lindquist came to 1441 Pigott Place on February 15, 2016; nor was she home when Officer Lindquist and Constable Phillips attended at the residence on February 16, 2016. Although Ms. McLeod was not aware there had been complaints about Ms. Humpherville’s dogs being at large, Ms.

Humpherville did tell her a police officer had come to the residence on February 16, 2016, and was rude to her. Ms. McLeod cautioned Ms. Humpherville that they had to make sure they were complying with all the by-laws. [ 64 ] Ms. McLeod did not own any dogs, but believed the yard to 1441 Pigott Place was fully enclosed with a fence and front gate. If there was a

section of the fence which was fallen down scrap chicken wire, she was not aware of it. Ms. McLeod admits that because she had no dogs of her own, she would not know if a dog could breach the fence until Ms. Humpherville’s arrival. [ 65 ] At the time of the altercation on February 17, 2016, Ms. McLeod was at work. She received and responded to her daughter’s distress call. Ms. McLeod estimates it took her 7 to 9 minutes to travel from her work at Save-on-Foods to 1441 Pigott Place. When Ms. McLeod arrived at 1441 Pigott Place, police officers, ambulance attendants and firefighters were present.

She observed the ERS team having difficulty moving Officer Lindquist up the yard on the gurney to the ambulance because the grass was wet and slippery and the slope steep. In the end, the attendants tried to walk Officer Lindquist to the ambulance. [ 66 ] Ms. McLeod saw Ms. Humpherville being arrested. She approached the police to try and learn what was going on. She was totally confused as to how this incident occurred. Ms. McLeod learned for the first time there had been previous incidents involving Ms. Humpherville and the officers. Ms.

McLeod said that because she was the homeowner she was upset she was not been informed of these matters. [ 67 ] When things had settled down, Ms. McLeod returned to work. When she left all three of Ms. Humpherville dogs were inside the house. Legal Framework [ 68 ] Officer Lindquist alleges Ms. Humpherville assaulted him at 1441 Pigott Place on February 17, 2016. He says at the time, the City’s Dog Control Bylaw No. 3250 authorized him to be on that property and to seize her dog. [ 69 ] The City of Prince Rupert Dog Control Bylaw No. 3250, 2008, sets out the following provisions:

Schedule “D” lists pit bulls as restricted dogs. [ 70 ]

Section 300 states, in part: 300 Every person within the City who owns or keeps a dog shall obtain a valid licence . . . [ 71 ]

Section 400 states: 400 No owner of an animal shall permit the animal to be at large in the City or to trespass on private property. 402 Notwithstanding designated off leash areas as provided for in this Bylaw, every person who owns, keeps or has custody, care or control of a dog, shall keep the dog on a leash and under control while on any highway, school property, park or other public place in the city. 408 The owner of a . . .

Restricted Dog shall: 408.1 not permit or allow the dog to be in a designated off-leash area in the City at any time; 408.2 ensure the dog is muzzled and leashed when in public places; 408.3 not permit or allow the dog to be in the front yard, unless the dog is properly leashed and muzzled and under the control of a competent person; 408.5 ensure the back or rear yard of their own private property is properly secured by a fence with a minimum height of six (6) feet and properly contains the dog or in the alternative there is a properly constructed pen of sufficient strength and design to both contain the dog and allow enough room for the dog to comfortably move around . . . [ 72 ]

Schedule “A” to Bylaw 3250 defines “at large” to mean when not on the property of the owner, or: a. not under the immediate charge and control of a responsible and competent person; or b. not under the direct control or within the immediate vicinity of the owner when in an unauthorized off-leash area. [ 73 ] Bylaw 3250 authorizes the bylaw officer to seize and impound: 500.1 any animal found at large in the City; 500.2 an unleashed dog found on any highway or public place; 500.3 an unlicenced dog.

[74]

Section 600 of By Law 3250 states: 600 In accordance with the Community Charter, the Bylaw Officer may at all reasonable times, enter onto any real property within theCity for the purposes of ascertaining whether provisions of the bylaw are being complied with. [75]

Schedule “A” of Dog Control Bylaw No. 3280, 2008 defines “public place” to mean: any place outside the property or normal residence of the owner and shall include any highway, school property, park, private property,and publicly owned property Issue # 1: Has the Crown proven all the elements of the offence of assault beyond a reasonable doubt? Assault: s. 266 of the Criminal Code [76] Ms. Humpherville is charged with assault under s. 266 of the Criminal Code which states:

(266) Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. [77] An assault under s. 266 incorporates the definition of assault set out in s. 265 of the Criminal Code, the relevant portions ofwhich are as follows: (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; [78] Ms. Humpherville is presumed innocent. Before the Court can find her guilty of assaulting Patrick Lindquist, the Crown mustprove beyond a reasonable doubt the essential elements of the offence. The static elements are: (

a) the accused as the person subject tothe offence; (

b) the jurisdiction of the court over the person accused; and (

c) the timing of the offence. The essential elements specific tothe offence of assault require the Crown to prove beyond a reasonable doubt: (

a) Neely Humpherville applied force against PatrickLindquist; (

b) Neely Humpherville intentionally applied the force; (

c) Patrick Lindquist did not consent to the force Neely Humphervilleapplied; and (

d) Neely Humpherville knew that Patrick Lindquist did not consent to the force she applied. [79] The Crown can prove Ms. Humpherville knew that Officer Lindquist did not consent to the physical contact by: (

a) showing Ms.Humpherville knew Officer Lindquist did not consent; or (

b) showing Ms. Humpherville knew there was a risk that Officer Lindquist didnot consent and proceeded in face of that risk; or (

c) Ms. Humpherville was aware Officer Lindquist did not consent, but deliberatelychose to ignore it because Ms. Humpherville did not want to know the truth. Any one of these would be sufficient to establish Ms.Humpherville’s awareness of Officer Lindquist’s lack of consent. See: R. v. A.D., 2010 BCSC 1780. Assessing reasonable doubt [80] As indicated above, Crown must prove the essential elements of the assault beyond a reasonable doubt. In R. v. W. (D), , the Supreme Court of Canada provided the trial Courts with an analytical framework to assess reasonable doubt in the contextof a criminal trial. In his paper, Doubt about Doubt: Coping with R. v. W(

D) and Credibility Assessment, Professor David Paciocco, nowOntario Court Justice Paciocco, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [81] Where, as in this case, the defence has called evidence, any evidence inconsistent with guilt could arise in the context of theCrown or the Defence’s case.

Assessing Credibility and Reliability [82] The salient issue in this case is whether the Court is satisfied beyond a reasonable doubt Neely Humpherville assaulted OfficerLindquist. In order to decide this issue, I must assess the reliability and credibility of the evidence before me. In doing so, I can acceptall, some or none of a witnesses’ evidence. [83] In order to assess the reliability of a witness’ evidence, I must assess his or her ability to perceive, recall and communicate theevidence. In order to assess the credibility of each a witness, I must consider a number of factors, including: (

a) the internal consistencywith other parts of the witness' evidence given at trial; (

b) the consistency of the witness’ account over time; (

c) the external consistency

of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) the inherent plausibility of the evidence; (

f) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright; and (

g) to a lesser extent, the attitude and demeanour of the witness. Findings on reliability and credibility Constable Phillips [ 84 ] Constable Phillips was the lead investigator on this case. Ms. Humpherville points to the deficiency in his investigation as a reason to discount his evidence. Although she did not articulate her concerns in this manner, I understand Ms. Humpherville to be complaining of police tunnel vision. Constable Phillips took no statement from either Ms. McLeod or Ms. Shumka who lived at 1441 Pigott Place and were present at the scene on the offence date.

He took no photographs of the crime scene nor of Officer Lindquist’s injuries. Mr. Offut’s audio recorded statement made to the police at the scene on the offence date also went missing. [ 85 ] When Officer Phillips encountered her the scene, Ms. Humpherville told him Officer Lindquist had hit her first and was trying to take her dogs. Notwithstanding the conflicting allegations, Constable Phillips did not take a statement from Ms. Shumka who witnessed the altercation, at least in part. He appears to have unquestioningly accepted Constable Lindquist’s allegations that Ms.

Humpherville was the aggressor and immediately arrested her for assault. [ 86 ] I agree the Court would have benefited from a more thorough investigation of the incident. Nevertheless, I found Constable Phillips a credible witness and I accept as accurate his evidence as to his observations and experience of the matters on which he provided evidence. Officer Patrick Lindquist [ 87 ] Officer Lindquist testified as to his interactions with Ms. Humpherville on February 15, 16 and 17, 2016, with remarkable detail and precision. He described the altercation with Ms.

Humpherville on February 17, 2016, on a frame-by-frame basis as though he experienced it in slow motion. [ 88 ] Ms. Humpherville submits that Officer Lindquist was not a reliable or credible witness and I ought not accept his evidence as accurate. She basis her submissions on the following: a. Officer Lindquist asserted he suffered broken ribs, which is contradicted by the medical evidence. His evidence in this regard indicates his propensity to fabricate evidence or at least to embellish and exaggerate; b. Ms.

Humpherville points out that Officer Lindquist complained of being disoriented by his injuries, falling in and out of consciousness because of the pain. This evidence indicates Officer Lindquist’s ability to accurately discern what had happened was compromised by his physical and mental impairment at the time; and c. Officer Lindquist was unable to identify her as the person with whom he was talking through the front door of 1441 Pigott place on February 16, 2016. [ 89 ] In assessing Officer Lindquist’s credibility and reliability, I find as follows: a.

Internal consistency: I found Officer Lindquist’s evidence internally consistent in both his direct examination and as between his direct and cross examination. There was no suggestion his evidence had changed over time. He was unshaken in cross examination. b. External consistency: Officer Lindquist’s evidence is corroborated in part by other witnesses. For example, i. Ms. Humpherville’s animus toward Officer Lindquist’s attempts to control her dogs was corroborated by Constable Phillips as a result of his interactions with her on February 16, 2016; ii. Given Ms.

Humpherville slammed the front door on Officer Lindquist while he was trying to talk to her on February 16, 2016, I have no doubt she was the person with whom he continued to speak after the door closed. Ms. McLeod was at work at the time. Ms. Shumka had no idea who Officer Lindquist was the following day. Moreover, Ms. Humpherville told Ms. McLeod about the police officer attending at her residence. Both officers described the woman behind the door as extremely confrontational and uncooperative and accusing of letting her dogs out and harassing her.

Given the only persons at 1441 Pigott Place with any dogs at the time was Ms. Humpherville, I have no doubt it was Ms. Humpherville with whom the officers were speaking with on February 16, 2016; iii. Although his evidence as to sustaining broken ribs in the altercation was not corroborated by the medical evidence, I accept that on February 17, 2016, Officer Lindquist was injured and in pain. I note that Officer Lindquist had never seen the medical reports prior to testifying at trial. He was genuinely surprised to see they indicated his ribs were not broken.

Whatever the nature and extent of his injury, I accept that Officer Lindquist believed he had suffered broken ribs. Mr. Offut saw Officer Lindquist immediately after the altercation lying motionless on the ground. It appeared to Mr. Offut that Officer Lindquist was possibly injured and in pain. Officer Lindquist was transported to the hospital where he underwent x-rays for his ribs. Although the medical evidence indicates Officer Lindquist’s ribs were not broken, the records corroborate that he was in sufficient pain to warrant a medical investigation; iv.

Officer Lindquist’s evidence that his altercation with Ms. Humpherville occurred as a result of her trying to prevent him from snaring her dog is corroborated by Sean Offut who observed their interactions minutes if not seconds earlier. Although Mr. Offut did not witness the actual physical altercation, he was present immediately before and after it occurred. And although he could not remember any words he heard exchanged between Ms. Humpherville and Officer Lindquist, he did describe their encounter as a “heated moment”;

v. The fact there was an altercation between Ms. Humpherville and Officer Lindquist is corroborated by Ms. Shumka, who witnessed at least part of it in her back yard. Officer Lindquist’s version of events is not inconsistent with Ms. Shumka’s general depiction the incident began as a verbal altercation which quickly became physical; and vi. I accept that Officer Lindquist’s memory of the events after he had been injured may have become confused. I note that he did not mention Ms. Humpherville calling out to Ms. Shumka or even of Ms. Shumka’s presence.

In my view, this does not diminish the veracity of Officer Lindquist’s evidence prior to being injured. c. Plausibility: I find it entirely plausible in the circumstances that Ms. Humpherville did not want Officer Lindquist apprehending Nola and sought to physically restrain him from doing so. The confrontation escalated as Officer Lindquist was not prepared to accept her interference with his duties as a by-law officer. d. Balance : I found Officer Lindquist tried to be reasonably fair and understanding in his dealings with Ms. Humpherville and in his depiction of their encounters.

His empathy is apparent from the manner in which he dealt with Ms. Humpherville on February 16, 2016. Notwithstanding her harangue and baseless accusations, Officer Lindquist persisted in his attempts to win her compliance through reasoned negotiation. Sean Offut [ 90 ] I found Mr. Offut to be a reliable and credible witness. He was the only civilian witness to give a formal statement to the police, although it appears to have gone astray. I accept his evidence with regard to those events he actually witnessed.

His evidence was internally and externally consistent, plausible, balanced and corroborative by and of Officer Lindquist’s. Siara Shumka [ 91 ] It is unfortunate that Ms. Shumka did not provide a formal statement to the police at the time of the offence when her perceptions of events would have been fresh. I found Ms. Shumka a credible witness whose memory of the incident she witnessed had faded into a blur with the passage of time. [ 92 ] Because she did not see Officer Lindquist when he was holding the catch pole, I infer that Ms. Shumka came upon the scene toward the end of the altercation.

By this time Officer Lindquist was able to best Ms. Humpherville and bring her under control. [ 93 ] Ms. Shumka’s description of the altercation between Officer Lindquist and Ms. Humpherville does not assist the court in identifying the initial aggressor. I give her comment that Officer Lindquist was “rude and aggressive” little weight as it was a conclusion elicited by Ms. Humpherville in the form of a leading question and unsupported by any evidence. Naomi McLeod [ 94 ] I find Ms. McLeod a credible and reliable witness and I accept her evidence with regard to the essential matters to which she testified.

Conclusion on Issue #1: proof of the elements of the offence [ 95 ] I am satisfied the Crown has proven all the elements of the offence of assault beyond a reasonable doubt. Specifically, On February 17, 2016, when Officer Lindquist tried to snare her dog Nola with a catch pole at 1441 Pigott Place, Prince Rupert, B.C., Ms. Humpherville assaulted him by grabbing his jacket, pushing and punching him. There is nothing in the evidence of the Crown or Defence case which causes me to have a doubt as to Ms. Humpherville’s guilt. Issue #2: Is the accused entitled to a defence of person or property? [ 96 ] Ms.

Humpherville raised the defence of self-defence or defence of property. The defence of self-defence is set out in

section 34 of the Criminal Code . It states: Defence — use or threat of force 34

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

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [97] The defence of property is set out in s. 35 of the Criminal Code, which states: Defence — property 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, orlawfully 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 propertyfrom 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 reasonablegrounds 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 possessionby 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 theadministration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonablegrounds that the other person is acting unlawfully. [98] In R. v. Cinous, 2002 SCC 29 , the Supreme Court of Canada held that before the court need consider the defence ofthe person or property provisions, there must be an “air of reality” to the defence.

At para. 58 in Cinous, McLachlin C.J.C. andBastarache J., writing jointly, elaborated on how the air of reality test should be applied. a. The trial judge should consider all the evidence but assume the evidence relied on by the accused is true. The trial judgeshould not make findings of credibility. b. The air of reality test applies to each element of a defence. As long as each element is supported by some direct evidence, ormay be inferred from circumstantial evidence, the trial judge must put the defence to the jury. c.

The trial judge should not decide the substantive merit of the defence, or even whether the defence is likely or not likely tosucceed. Whether the defence has merit is for the jury to decide. The trial judge should simply determine whether there is a “real issue”that should be left for the jury. d. If the defence has an objective reasonableness component – as self-defence does – that component cannot be established bydirect evidence. The trial judge must decide whether it can reasonably be inferred from circumstantial evidence; that is, evidence from

which the fact in issue can be inferred. e. To assess whether circumstantial evidence is reasonably capable of supporting the inferences the accused wants the jury todraw, the trial judge is entitled to engage in a “limited weighing” of the evidence. R. v. Phillips, 2017 ONCA 752 , at para.145. [99] Once the “air of reality” test has been met, the Crown has the onus of proving beyond a reasonable doubt that an accused didnot act in self-defence. Further, all the elements of the defence must be established for the defence to succeed: Cinous. Those elementsare as follows: a.

Reasonable belief: the accused must reasonably believe that force or threat of force is being used against her or someone else(the subjective perception is objectively verified); b. Defensive purpose: the subjective purpose for responding to the threat must be to protect oneself or others (this is a subjectivestate of mind); and c. Reasonable response: the act committed must be reasonable in the circumstances (this is objectively assessed). For thiselement, the judge must take into account the non-exclusive list of nine factors found in s. 34(2). Cormier v R, 2017 NBCA 10 , at para. 4- citing R. v.

Bengy, 2015 ONCA 397 , [2015] O.J. No. 2958 (QL), at para. 28. [100] The new defence provisions came into force on March 11, 2013, under the Citizen’s Arrest and Self-Defence Act, S.C. 2012,c. 9, and replaced the existing Criminal Code provisions found in ss. 34-42. Although Cinous pre-dated these new provisions, theCrown continues to bear the burden of proving that the accused did not act in self-defence. [101] As indicated above, Ms. Humpherville can only succeed with a defence of self-defence or defence of property by meeting everyelement of the defence.

The Crown is not required to prove beyond a reasonable doubt her conduct fails on every element of thedefence. The Crown need only disprove beyond a reasonable doubt any one of the elements in order to defeat the defence. [102] In Cormier, the New Brunswick Court of Appeal considered the new defence of property provisions in s. 35 and found them tobe very broad and yet to be jurisprudentially determined.

(47) As for the defence of property provisions, these appear to be very broad.

Section 35 applies to a wide range of offences and to anytype of property. The provision establishes the types of interference with “peaceable possession” of property that can trigger a defensiveresponse. The defence is triggered upon a reasonably based belief of peaceable possession of property and of another person’s specificactions regarding that property, i.e. either: (1) about to enter, entering or having entered to the property without lawful entitlement; (2)about to take, taking or having just taken the property; or (3) about to damage or destroy or in the process of damaging or destroying theproperty or making it inoperative. Upon the defence being triggered,

an act committed to prevent the triggering event is justifiedprovided it is “reasonable in the circumstances”. The defensive purpose requirement is to be assessed subjectively. On the other hand,the reasonableness of the response is objectively assessed. However, unlike the enumeration of factors to aid assessing this in self-defence cases (s. 34(2)), s. 35 offers no legislative guidance. [103] The appellate court in Cormier holds the over-arching requirement of the defence in s. 35 is reasonableness.

Assessing whetherthe accused’s actions were reasonable requires a modified objective analysis, based on the perspective of a reasonable person, standing inthe shoes of the accused. See R. v. Szczerbaniwicz, [2010] 1 SCR 455, 2010 SCC 15 , at para. 21. [104] Finally, when applying the defence of the person or property provisions in the Criminal Code to a situation in which the accusedclaims that she did not know the officer was acting lawfully, ss. 34(3) and 35(3) are engaged.

These provisions indicate that in such asituation ss. 34 and 35 do not apply unless the accused “believes on reasonable grounds that the other person is acting unlawfully.” [105] An assessment under s. 34(3) or 35(3) prevents a defence of person or property against law enforcement actions unlessthe accused believes on reasonable grounds that the other person is acting unlawfully. This engages both subjective and objectivecomponents. Ms. Humpherville must show she had both an honest and a reasonable belief that she was resisting unlawful lawenforcement efforts.

The requirement of reasonableness is not a standard of perfection. The accused may have a reasonable belief thatthe officer is acting unlawfully even though the officer may actually be acting lawfully. [106] In this case, Officer Lindquist was performing his duties as a City by-law enforcement officer. He was authorized by the DogControl By-law to apprehend Ms. Humpherville’s dog which he had personally observed running loose moments before the assault. Hewas also authorized to enter into her yard for that purpose. Ms.

Humpherville was blocking Officer Lindquist’s attempt to apprehend herdog. [107] The evidence clearly shows Ms. Humpherville knew Officer Lindquist was a by-law enforcement officer. On February 16,2016, the day before the offence, Constable Phillips told Ms. Humpherville that Officer Lindquist was authorized to be on her property. Ms. Humpherville refused to speak to the officers. If she believed Officer Lindquist had no legal authority to apprehend her dog on herproperty it was not reasonably held.

She refused to listen to what the officers had to say about her rights and obligations as a dog owneror the by-law officer’s authority to enforce the City’s Dog Control Bylaw. Conclusion Issue #2: defence of person or property [108] I find that Ms. Humpherville is not entitled to the defence of person or property on the basis of ss. 34(3) and 35(3) of theCriminal Code. Ms. Humpherville used force against Officer Lindquist to stop him from doing something he was authorized by law todo in the enforcement of the City’s Dog Control Bylaws.

Even if she believed his actions were unlawful, her belief was not reasonable inthe circumstances.

[ 109 ] In any event, the evidence before me negatives each element of the defence of self-defence under s. 34(1) beyond a reasonable doubt. The evidence before me also negatives the element set out in s. 35(1)(d), which requires the impugned act committed in defence of property to be reasonable in the circumstances. Accordingly, Crown has established neither defence is applicable. Specifically, Ms. Humpherville was not entitled to use physical force against Officer Lindquist based on her mistaken belief the yard at 1441 Pigott Place was her dog’s sanctuary and off-limits to enforcement officers.

Disposition [ 110 ] I find the Crown has proven beyond a reasonable Ms. Humpherville assaulted Patrick Lindquist on February 17, 2016 in Prince Rupert, B.C., and neither the defence of person nor property apply. [ 111 ] Accordingly, on the sole count of information 29160-01, I find Ms. Humpherville guilty as charged. “Judith Doulis” _________________ Judge J.T. Doulis Provincial Court Judge