R v. Perry Johnny Date:, 2014 BCPC 97

Citation: R v. Perry Johnny Date: 20140516 2014 BCPC 0097 File No: 32736 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PERRY DIXON WAYLON JOHNNY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: J. Dufour Counsel for the Defendant: R. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: April 14, 2014 Date of Judgment: May 16, 2014 [ 1 ] Perry Johnny is charged on Williams Lake court file number 32736 with:

• willfully obstructing a peace officer in the execution of that officer’s duties contrary to

section 129 (

a) of the Criminal Code , and with; • breaching a condition of his recognizance that required him to not be within the city limits of Williams Lake unless he was meeting with legal counsel, in attendance at court, or on a highway in a moving motor vehicle in transit to somewhere else, contrary to section 145(3) of the Code . [ 2 ] The charges arise out of circumstances that occurred on July 3, 2013. [ 3 ] On July 3, 2013 at approximately 10:30 PM Const.

Jacques, in uniform and driving a marked police cruiser, attended at a house located on the 1100 block of McKenzie Avenue in the city of Williams Lake to talk to someone on an unrelated separate police matter. The house contained two separate residences with a type of split driveway. As he pulled into the driveway he noticed a pickup truck that had just started pulling out of the other driveway then stopped. [ 4 ] A male got out of the truck and walked away from Const. Jacques around to the back of the house, out of Const. Jacques’ sight.

He saw the person only for a matter of seconds however he testified that it seemed to him the man was purposefully looking away from him. He noted the man to be wearing a blue and white shirt, ball cap and light-colored shorts. Although he did not see the face of the male he concluded the male was aboriginal because he had dark skin and dark hair. [ 5 ] Const. Jacques thought it odd that the driver had apparently changed his mind about driving away just as the officer had pulled up, and that the passenger had immediately got out of the truck and walked away from him without looking at him.

He talked briefly with the driver who identified himself as Ronald Sommerfeld. No one else was in the pickup truck. [ 6 ] Const. Jacques went to the neighbor’s residence to see if the person he was originally looking for was there, however he was not. This took no longer than two minutes. During that time he never saw the passenger who had exited the pickup truck return to the truck. [ 7 ] Const. Jacques got in his police cruiser and drove one block north and parked on McKenzie Avenue waiting to see what the driver of the pickup truck would do.

He noticed the pickup truck pull out of the driveway and head south on McKenzie. Cst. Jacques followed the vehicle and radioed his dispatch with the license plate number. Dispatch reported back and that the insurance on the vehicle had expired. [ 8 ] Const. Jacques activated his emergency lights and the vehicle drove a couple of hundred meters before finding a place to stop facing westbound on Highway 20. Const. Jacques got out of his police cruiser and walked to the driver’s side of the pickup truck with his flashlight and spoke with the driver, Mr. Sommerfeld.

He noted that the passenger who had got out of the truck back at the residence on McKenzie Avenue was now back in the passenger seat. The Const. testified he knew it was the same person by the fact of the matching clothing, the person’s size, and the fact that he was an aboriginal male. [ 9 ] He said he was 2 to 3 feet away from the passenger and initially did not recognize him. He explained to Mr.

Sommerfeld why he had stopped him and as he was talking to the driver he was looking at the passenger and noted the passenger was looking forward or away from the officer. [ 10 ] The Const. testified that he then thought he recognized the passenger as Perry Johnny so asked him his name. The passenger gave him the name “Jeff Jack”. The Const. said the passenger then looked toward the officer and that was when the officer saw that it was Perry Johnny. The officer also said Mr.

Johnny has a distinctive feature, that being a scar over his eye, and when the passenger looked at him he could see that scar. [ 11 ] The officer testified on direct that he was 100% certain the passenger was Perry Johnny and was not shaken from his certainty on cross-examination. When asked how he knew Perry Johnny the officer stated that he had met Perry Johnny once at a prior police dealing and had talked with him for a minute or two in a well-lit area. On that occasion he was only a couple of feet away from Mr. Johnny.

Although that meeting occurred in November 2012, the officer testified that he has had a colour photograph of Mr. Johnny on his desk since the fall of 2012 because Mr. Johnny is a person that is involved in what he described as a “police program”. [ 12 ] The officer testified that he believed Mr. Johnny was subject to a curfew and a condition of not attending Williams Lake so he returned to his car to confirm it through dispatch. He said he never confronted the passenger with his knowledge that the passenger was really Perry Johnny because he knew Mr.

Johnny had fled from police before so was also calling for backup. While he was in his police cruiser on the radio the man the officer knew to be Perry Johnny got out of the pickup truck and walked away into the adjacent wooded area. The officer did not attempt to pursue him. [ 13 ] Const. Jacques made minimal notes in his notebook. Although in his notes he had written down “Passenger Jeff Jack??”, he had never written down the name Perry Johnny.

He testified that he wrote his initial report to Crown counsel later in his shift (on July 4 th ) at 0049 hours. [ 14 ] Although the report was not entered into evidence, it was referred to in cross examination and the Constable agreed that he stated in the report that he ‘thought’ he recognized the passenger as being Perry Johnny and that he knew Mr. Johnny was on conditions.

He also agreed that he did not write in that report that the passenger looked at him briefly nor did he refer to having seen the passenger’s scar. [ 15 ] Approximately one week later, on July 12, 2013 he provided Crown counsel with a supplemental report, which, again, was not entered into evidence, but was referred to on cross examination, and he agreed that in that report he provided more details including that the passenger had briefly looked his way and that he had noted the passenger’s scar. When questioned about why in his first report he said that “he thought” the passenger was Mr.

Johnny, he answered by stating he was “certain” it was Mr. Johnny, and he was not shaken

from that conviction. Position of the Defence: [16] Defence counsel Richard Kaiser raises three issues in defence of Mr. Johnny. Firstly he says the court should be left in a doubt as to the identification evidence. [17] Secondly he argues that the officer cannot be said to have been acting ‘in the execution of his duty’ when he questioned thepassenger. [18] Thirdly, with respect to count two, and perhaps also related to the ‘execution of the peace officer’s duties’ issue, Mr. Kaiserpoints out that one of the express exceptions to the condition on Mr.

Johnny’s recognizance that he not attend within the city limits ofWilliams Lake was when he was on a highway in a moving motor vehicle in transit to somewhere else. [19] In regards to the identification evidence, Mr. Kaiser submits that the failure of the officer to make reference to Mr. Johnny at allin his notebook, then his statement in his first report to crown counsel that he “thought” the accused was Mr.

Johnny, and providingmore detailed identification information in his supplemental report to the Crown one week later, coupled with his admitted inability torecall some details such as whether the baseball cap had a brim, should raise a doubt as to whether the Const. knew at the time the personhe saw was the accused or later convinced himself of it. [20] Mr. Kaiser refers me to the following case law that all warn of the inherent dangers of identification evidence: • R. v. Miaponose (ON CA), [1996] O.J. No. 3216 (OCA) • R. v. J.F.W. [1997] B.C.J. No. 345 (BCCA) • R. v. Lussier [1998] B.C.J.

No. 2678 (BCCA) I have read and considered those cases. Decision: Identification: [21] I am cognizant of the inherent dangers of identification evidence and accept that it is possible for a witness to convince him orherself after the fact of identification and, because the witness believes in the identification will present as very convincing at trial. I amalso cognizant that even professional witnesses such as police officers are not immune to making this type of error. I nevertheless find inthis case the Crown has proven identification beyond a reasonable doubt. [22] Const.

Jacques was very clear and consistent in his identification of Mr. Johnny. His actions after he concluded the passengerwas Mr. Johnny, those being to return to his police cruiser to determine if Mr. Johnny was subject to conditions, are consistent with hisdetermination on the scene that the passenger was Mr. Johnny. [23] Although the officer’s only personal interaction with Mr. Johnny occurred eight or nine months previous, it consisted of at leastone minute of personal face-to-face interaction in a well-lit area. Additionally, Mr.

Johnny was a person involved in a police program,the relevant effect of which was that his colour photograph had been sitting on Const. Jacques’ desk since the early fall of 2012. [24] As to the Constable’s minimal note-taking and initial report to Crown counsel with supplemental information being provided aweek later, leading to an inference that the Const. had later convinced himself of the identification, I find that concern, althoughreasonably explored at trial, has been eliminated by the testimony of the Const. As an aside, I note that Const. Jacques had only

approximately 15 months experience as a police officer at the time of the offence. I am hopeful that in the interim he has learned theimportance of taking detailed notes. [25] I also note that in this case the officer’s identification evidence was based on his recognition of the accused. That recognitionincluded the observation of the accused’s distinctive feature of having a scar above his eye. [26] Crown has proven the identification of the accused. Execution of Duties: [27] Mr.

Kaiser says that although the officer had every right to stop the vehicle and question the driver, the accused - as apassenger - was not under any legal obligation to answer the officer’s questions. The implication is that the officer was acting outsidethe scope of his duties in relation to the investigation of the driver when he asked the accused his name. [28] In R. v. Westlie (BC CA), [1971] B.C.J. No. 643 it was determined by the B.C. Court of Appeal that it neednot be shown that an officer was at the time of the obstruction engaged in a specific duty (para. 2).

In Westlie, at para. 25, Branca J.A.quoted with approval the following comments of Lord Parker C.J. in Rice v. Connelly, [1966] 2 Q.B. 414, [1966] 2 All E.R. 649 at page651: “It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him itnecessary for keeping the peace, for preventing crime or for protecting property from criminal injury.

There is no exhaustive definition ofthe powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bringan offender to justice.” [29] I find that the officer was acting in the execution of his duties when he questioned Mr. Johnny. The officer testified that hethought he recognized the passenger as Perry Johnny, so asked him his name. It was at that point that Mr. Johnny gave the false name ofJeff Jack. The officer testified that he knew Mr. Johnny had been placed on conditions and believed Mr.

Johnny was still on conditionsof curfew and ‘no go’ Williams Lake. The officer was questioning someone whom he reasonably believed was in breach of a conditionof his recognizance of bail. Obstruction: [30] It was not argued by the defence that in these circumstances the giving of a false name by the accused did not actually obstructCst. Jacques, however nor was the accused asked to concede the issue. [31] Although I agree with Mr. Kaiser that there was no legal requirement for Mr.

Johnny, as a passenger in the vehicle, to answerthe police officer’s questions, it is a much different thing when he chooses to and gives a false name. The mental intent is a general oneand it is enough that the accused was a free agent who knowingly gave a false name, and intended to give a false name (see R. v.Edmunson [1975] B.C.J. No. 188, at para. 4). [32] The accused did not testify.

Although it is not necessary to find a specific intent to obstruct, the only reasonable inference isthat the accused gave a false name to avoid being arrested for being in breach of his recognizance. [33] There is a short line of cases stemming from an Alberta decision that stand for the proposition that a brief inconvenience to aninvestigating officer is not enough to constitute obstruction. Those cases are as follows: 1. R. v. Whalen (AB CJ), [1993] A.J. No. 618. In Whalen the accused gave a false name. He was acquitted ofobstructing justice by Fradsham J., who determined the charge required

an act that made it more difficult for the officer to carry out hisduties. In that case the conversation was not significantly long. 2. In R. v. Darlington [2001] O.J. No.3410 it was determined that although the officer was inconvenienced, an obstruction chargerequired more than a fleeting or momentary diversion. 3. In R. v. McGregor [2005] O.J. no. 5836 Justice Clements followed the reasoning in Darlington. 4. In R. v. Cole [2009] O.J. No. 5838, Justice Kitely followed Whalen and acquitted Mr. Cole. The accused had given a false name,was arrested under that name, then within 15 minutes gave his correct name.

[34] However, the following authorities - grounded on the BCCA decision of Westlie (above) - expressly find the above cases do notcorrectly reflect the law. [35] In R. v. Walcott 2006 ONCJ 367 , [2006] O.J. No. 3947 (Ont. Court of Justice) the accused was stopped for aHighway Traffic Act offence and gave a false name. 44 minutes later he correctly identified himself at the police station. After notingthe words “obstruct” or “obstructing” are not defined in the Criminal Code, Robertson J. stated the following at paragraph 12: 12.

One line of cases that addresses the definition of obstruct has attempted to differentiate between acts by an accused which “merelyinconvenience” the officer (and do not amount to obstruction) as opposed to those that obstruct him from his duties; see the trilogy ofcases R. v. Whalen, (AB CJ), [1993] A.J. No. 618; R. v. Darlington, [2001] O.J. No. 3410; and R. v. MacGregor,[2005] O.J. No. 5836. [36] Robertson J. determined at paras. 14 and 24 that the test used in the trilogy of cases originates from the definition of“obstructing” set forth in Hinchcliffe v.

Sheldon, [1955] All E.R. 406 at 408 where Lord Goddard C.J. stated: “Obstructing means, for this purpose, making it more difficult for the police to carry out their duties.” [37] Robertson J., in Walcott, determined this definition had been expressly rejected by the B.C. Court of Appeal in R. v. Westlie(above) and quotes MacFarlane J.A. who said at p. 317: “Like my brother Branca, I am unable to accept as a correct

interpretation of

section 110(a) [now 129(a)], the dictum of Lord Goddard,C.J. in Hinchliffe v. Sheldon,… to the effect that obstructing means making [it] more difficult for the police to carry out their duties. Ithink such conduct may not necessarily amount to obstructing within the meaning of that

section of the Criminal Code.” [38] Robertson J. noted that in Westlie, the elements of the offence were set out as follows: a. that there was an obstructing of the constable; b. the obstruction affected the constable in the execution of the duty that he was then executing; and c. that the person obstructing did so wilfully. (emphasis added) [39] Consequently, Robertson J., in Walcott, determined that the trilogy cases were an incorrect statement of the law (see para. 18)and adopted the reasoning of Vertes J. in R. v. Beck, [1998] N.W.T.J. No 187, where Vertes J. also disagreed with the Whalen decision,and determined that if

an act obstructs an investigating peace officer “to any degree” the offence is made out. (see cite at para. 37 inWalcott) [40] In his thorough and very helpful analysis, Robertson J. concludes at para. 38 as follows: 38. In this case, Mr. Walcott deliberately lied to police by providing the officer a false name. He did so to avoid being detected as aprohibited driver. As a result of that obstruction, Constable Bishop commenced an investigation under the false name and date of birth. In my view, at that point the offence of obstruct police was made out.

It matters not whether the attempted deception is discovered after44 minutes as in this case, or after 2 minutes. Provided the officer is deceived at some point and based on that deception does

an act, and[sic] then he has been obstructed. [41] In R. v. Khan, [2013] O.J. No. 1754 the accused gave a false name with intent to mislead an officer who was in the execution ofher duties. The only issue was whether the officer was in fact obstructed. Knazan J. cited with approval the Walcott decision (see paras.17 - 19) and disagreed with the Whalen line of cases and said at para. 22 (in relevant part): 22.

There is no requirement that the obstruction go on for a long time as Whalen, McGregor and Cole seem to suggest and no basisfor holding that “Parliament did not intend the full weight of the law to be brought to bear on an accused for such a lapse of judgmentthat was quickly corrected”, as was decided in Cole or that “inconvenience to the officer is not enough.” …. [42] In Khan, the officer thought she knew the accused, she was not sure.

Although checking the false name only took about twoseconds, Knazan J. found there was an obstruction, on the basis that the officer “..did something that she would not have done had Mr.Khan not lied and therefore in that moment she was not able to do what she should have been doing.” (see para. 24). [43] I agree with the reasoning in Walcott, Beck, and Khan, and find it is consistent with the B.C. Court of Appeal’s guidance set outin Westlie.

I guide myself as follows: the charge of obstructing a peace officer is made out when any intentional act obstructs to anydegree a peace officer in the execution of that officer’s duties. [44] In the case before me, the officer’s testimony was that he suspected the passenger in the truck was the accused, so asked hisname, was given a false name, then very quickly thereafter the man turned toward the officer and the officer then knew it was Mr.Johnny. The officer went back to his police cruiser to check to see if Mr.

Johnny was in fact bound by conditions, and to also call forback up based on his knowledge that Mr. Johnny has fled from the police before. The only evidence that the officer’s investigation wasimpacted in any way by the false name was that at some point he wrote the false name in his notebook. [45] However, there was no evidence as to when he did this. If he recorded it after his investigation was concluded, which would beconsistent with the officer’s testimony as to the sequence of events, then there is no evidence he was obstructed to any degree.

Had theevidence been that the officer was given the false name, was uncertain as to identity and recorded the false name while still trying toascertain through additional questions whether in fact it was a false name, the offence would have been made out.

[ 46 ] In the absence of any evidence that would enable me to determine when the officer went through the exercise of recording the false name in his notebook, and given the particular circumstances of this case, I am left with a doubt as to whether the giving of the false name obstructed the officer to any degree. [ 47 ] I acquit on count 1. ‘On a highway in a moving motor vehicle’ exception to the recognizance condition: [ 48 ] Although when stopped, Mr.

Johnny was in fact in a vehicle on a highway in transit to somewhere else, and on that basis would fall within the exception of the no go Williams Lake condition of his recognizance of bail, that exception did not apply when Const. Jacques spotted the accused first exiting the pickup truck at the McKenzie Avenue residence. [ 49 ] Const. Jacques testified that he knew the passenger in the truck was the same person he saw at the McKenzie Ave. location, as a result of Mr. Johnny’s size, ethnicity and by his clothing.

The officer noted that he was at the house on McKenzie Avenue at 2229 hrs. and that he made a note that he had stopped the truck at 2255 hrs. [ 50 ] Consequently, there was only a maximum of 15 minutes between when he saw an aboriginal male wearing a blue and white shirt, light-colored shorts and a baseball cap exit the truck at McKenzie Avenue, to when he pulled the same vehicle over after having watched it depart from McKenzie Avenue, to find the accused, an aboriginal male who was wearing a blue and white shirt, light-colored shorts and a baseball cap sitting in the passenger seat.

I note that as to the intervening 15 minute period, the officer testified that he spent no more than two minutes at the neighbouring residence and did not see the person get back into the truck. I also note that the officer followed the truck immediately after it left the residence, and was behind it until the stop.

The only reasonable inference in these circumstances is that it was the accused who the officer saw at the McKenzie Avenue house. [ 51 ] The Crown has proven the existence of the recognizance, the fact that the accused was properly read in to the recognizance, and that the recognizance had not been varied. Consequently, the Crown has proven the accused was in the City of Williams Lake in breach of his recognizance. [ 52 ] I convict on count two. ________________________ R. D. Morgan Provincial Court Judge