R. v. Cwynar Date:, 2017 BCPC 338

Citation: R. v. Cwynar Date: 20171102 2017 BCPC 338 File No: 40961-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHON QUINTON JAMES CWYNAR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Dates of Hearing: May 5, July 26 and November 2, 2017 Date of Judgment: November 2, 2017

[ 1 ] Mr. Cwynar is charged with assaulting Constable Desmet while the latter was acting in the course of duty. The charges arise from events that took place in the early evening on November 20, 2016. [ 2 ] Mr. Cwynar admits that during the course of an arrest, he bit Constable Desmet’s left ring and pinky finger but says that the action was reflexive and not intentional on his part. It is an essential element of this offence that the defendant intentionally applied force to another person. Accordingly, Mr.

Cwynar says the Crown has not proven, beyond a reasonable doubt, that he intended to bite the police officer. [ 3 ] Mr. Cwynar testified that on the night in question he was at Taylor Mitchell's apartment where Mr. Cwynar and another individual resided. He testified that there was an argument regarding an incident that is not at issue in this case. In the course of discussing this incident he confronted his friends and it appears that a fight broke out between them. Mr. Cwynar testified that he was struck in the face and also on the back of his head. He testified that he called 911 and then left the apartment.

He had been drinking that evening. [ 4 ] He was stopped by Constable Desmet and Constable Pederson. He told them he had been assaulted. He was arrested and handcuffed and he recalls “being taken to the ground”. [ 5 ] When Mr. Cwynar was asked if he recalls banging his head against the rear passenger side of the police car, he was not sure. He does not recall at all banging his head a second time on the police cruiser. However, he does recall that the second time as he was being brought to the police cruiser, that Constable Pederson was on his right and Constable Desmet was on his left.

He described that: … an arm went around my neck and was met by another arm and that then put its hand on the back of my head, and that's when the choking – – that was was when I first felt as if I was being choked. [ 6 ] He described that the arm and hand came from his left side and therefore assumed that it was Constable Desmet. He described that one arm was pushing and applying pressure to the back of his head and that the hand was “flipped” with the fingers to grab the arm that was applying the pressure.

He described that it affected his breathing; that he thought his life was in danger; and that he felt he was going to die. [ 7 ] He testified that: out of instinct, I bit the first thing that was in front of my face, which happened to be a pinky finger. [ 8 ] He did so because he thought that was “the only way I could save myself.” [ 9 ] Mr.

Cwynar was taken to the Campbell River hospital and was able to remember leaving the hospital with Constable Gammie and described that Constable Gammie's come along technique was gentle and, as he described it, "he was good." Constable Desmet and Constable Pederson: [ 10 ] Constable Desmet received a call from dispatch that an individual, later confirmed to be Mr. Cwynar, was causing a problem at an apartment and refusing to leave. The caller to dispatch was Taylor Mitchell. While en route to deal with the call, and update indicated that Mr. Mitchell had been assaulted by Mr.

Cwynar and they were trying to get him to leave the apartment. The description was provided and Constable Desmet, when arriving at the rear area of the apartment building, saw Mr. Cwynar who matched the description given by dispatch. [ 11 ] Constable Desmet testified that Mr. Cwynar told him that he had been assaulted himself and that he had called the police. He described Mr. Cwynar as stumbling, dishevelled and that he was bleeding from his mouth and he looked like he had been in a fight. He detected an odour of alcohol when speaking with him.

Constable Pederson, who was also involved in the arrest, described that Mr. Cwynar had an injury that was bleeding from the back of his head. [ 12 ] Constable Desmet told Mr. Cwynar he was under arrest for assault and being drunk in public. Constable Pederson arrived shortly after and handcuffed Mr. Cwynar. Constable Desmet was in the process of getting Mr. Cwynar into the back of his police vehicle and as Mr. Cwynar was standing by the rear passenger door, began banging his head on the side of the police cruiser. Constable Desmet described that Mr.

Cwynar was screaming and yelling in what he described as a very high pitched voice. [ 13 ] Constable Pederson took him to the ground in order to stop him from banging his head out of concern for injury to Mr. Cwynar. [ 14 ] Once they got Mr. Cwynar up off the ground, they conducted a search of his person and then put him back against the side of the police cruiser again getting him ready to be put into the rear seat. He again started banging his forehead against the side of the police cruiser. [ 15 ] Constable Desmet testified that he was standing by or near the right side of Mr. Cwynar.

He initially testified that he reached with his left hand to grab Mr. Cwynar either by the neck or the head to pull him away from the police car in order to prevent him from hitting his head against it. As he was doing so, Mr. Cwynar "quickly turned his face to the right and bit my left hand, my pinky finger and my ring finger on my left hand.” He described it as being fairly quick and that he was able to pull his fingers away. Mr. Cwynar was then brought down to the ground a second time by Constable Pederson. [ 16 ] Constable Pederson’s evidence differs with regard to the bite to Constable Desmet.

He describes that Mr. Cwynar bit Constable Desmet while they were both standing and that the bite continued while Mr. Cwynar was taken to the ground and on the ground. His evidence is that he had to apply pressure to Mr. Cwynar's cheek to get him to release Constable Desmet's fingers. This is in contrast to Constable Desmet’s evidence that he was able to pull his fingers away fairly quickly and before they brought him to the ground.

[17] During the course of Constable Desmet's evidence, he qualified his initial evidence that he tried to grab Mr. Cwynar by the neckor the head. When asked in direct examination if his left hand actually came into contact with Mr. Cwynar's head or his neck before hewas bitten, he testified that he remembered grabbing, “he thought”, Mr. Cwynar's shoulder. He testified that nothing was in contact withMr. Cwynar's neck and he knew that because he was the only one who was standing right beside him. He also testified that he couldn'tsay for sure whether it was Mr. Cwynar’s shoulder that he was reaching for.

As he testified, he simply wanted to stop Mr. Cwynar fromhitting his head. [18] He testified that he didn't recall touching Mr. Cwynar's neck at all but then later in cross-examination testified that he "certainlydidn't put [his] arm around his neck at all … my limitation was grabbing at his shoulder area with my left hand. I didn't ever put an armaround his neck." [19] He testified that as part of RCMP training they are trained in the technique called a chokehold or a sleeper hold to gain controlof a suspect. This is to be used in situations in which members or someone else are at risk of death.

This technique compresses thecarotid arteries rendering the suspect unconscious. As Constable Desmet testified, it is to be used for situations where there is thepotential for grievous bodily harm or death. He agreed that this was not one of those situations. [20] He also testified that he wears a watch on his left wrist during every shift and was wearing it that night. [21] Constable Gammie also testified. He observed Mr. Cwynar at the Hospital and described that he was behaving so badly thatthe medical staff were not able to assess him initially. He described that Mr.

Cwynar was flailing, screaming, yelling and would notlisten to direction or to medical personnel who are trying to calm him down. Eventually Mr. Cwynar did calm down and Cst. Gammieescorted him out of the hospital using a “come-along” technique he described as wrapping his arm around Mr. Cwynar's head and aroundunderneath his chin while Mr. Cwynar was in the wheelchair being taken to the police cruiser. [22] Mr. Cwynar testified that when he left cells he had abrasions to the right side of his neck.

A photograph was introduced asevidence showing abrasions that appeared to be just underneath the jawline or where his beard reaches the upper part of his neck on theright side. [23] What was striking about Mr. Cwynar's evidence was that it seemed to conform to the evidence of Constable Pederson who wasthe second officer to give evidence.

For example, he not only described Constable Desmet as being on his left side - contrary toConstable Desmet’s evidence - he also described, as did Constable Pederson, that when he was put to the ground, pressure was applied tohis jaw which caused him to open his jaw and release the biting action. Mr. Cwynar also described going to the ground three times. Hethen corrected his evidence after he thought about it and testified that he went down to the ground twice. He didn't recall speaking withthe 911 operator that evening. [24] My impression was that Mr.

Cwynar really doesn't have a terribly clear recollection of all of the events that evening and Isuspect that he may have been unconsciously basing his recollection of events on Constable Pederson’s evidence. I did not form theimpression that it was deliberate. The Law: [25] To convict someone of the offense of assault, it must be shown beyond a reasonable doubt that a person intentionally appliedforce to another.

Accordingly, no offense of assault is committed when an assault occurs as a result of a reflex action. [26] A reflex action can be described in different ways, but whether it is described as involuntary or instinctive I accept that it meansthat it refers to an action that occurs without thinking. [27] For example, when an accused, who was using a telephone to call the police, turned quickly in response to being punched, andwhen doing so struck the complainant with the telephone receiver, the element of intent was not present and the accused was acquitted:R. v. Wolfe, (ON CA), [1974] O.J.

No. 868. [28] However, it was not found to be a reflex action in circumstances where an accused intentionally struck a complainant eventhough the accused described the strike as "purely defensive reaction" and "involuntary…". In R. v. Makin,[1995] B.C.J. No. 2070, akey feature of the court’s decision was that although Mr. Makin honestly feared an attack from the complainant, objectively there was norational basis for that fear.

In that case, the defendant and the complainant had been on friendly terms, the complainant was not armed oracting in an irrational or erratic manner. [29] In considering whether the punch to the complainant was a reflex action, Rodgers, J. said this: Having come to the conclusion there is no objective basis for Mr. Makin’s fear, I find that there is no objective basis for Mr. Makin’sfear; I find that he did not act in a reflex action. There was no action “caused as an automatic response to nerve stimulation” as defined inthe Oxford Dictionary when the actions of Mr. Ballingall are reviewed.

The groundless fear of Mr. Makin, however honestly held,cannot be the stimulus which gives rise to a reflex action such as would negate the “intentional” action of striking Mr. Ballingall. [30] Constable Desmet was in the best position to observe and experience what was occurring when he was bitten by Mr. Cwynar. Ifind that Constable Desmet, as he testified, was standing to the right of Mr. Cwynar and that he reached out with his left hand and arm torestrain Mr. Cwynar from striking his head on the cruiser. [31] I accept Constable Desmet's evidence that he was able to pull his hand away from Mr.

Cwynar very quickly and that the biteonly lasted a few seconds. [32] Constable Desmet initially testified that he reached over to grab Mr. Cwynar either by the neck or the head. Although hequalified that evidence later in his testimony I accept that Constable Desmet reached over to grab Mr. Cwynar by the neck or head.

[ 33 ] The nature of the injury to Constable Desmet is certainly consistent with his hand being in a position in which his arm was rotated so that his left pinky and ring fingers were facing upwards and closest to Mr. Cwynar's jaw or mouth. That is consistent with Mr. Cwynar’s evidence that the hand was, as he described “flipped”. [ 34 ] The abrasions to Mr. Cwynar's right upper neck just below the jaw could also be consistent with an injury caused by Constable Desmet's watch as he had his arm and hand around Mr. Cwynar's neck. [ 35 ] This was a challenging situation for Constable Desmet and Constable Pederson.

Mr. Cwynar was banging his head on the police cruiser and appeared to the officers to be under the influence of alcohol and possibly some other substance. They believed that Mr. Cwynar had attacked another individual. Constable Desmet certainly needed to stop Mr. Cwynar from banging his head on the police cruiser and gain control of him. [ 36 ] The question I must determine is whether or not Mr. Cwynar's actions in the biting Constable Desmet's fingers was intentional. If I accept Mr.

Cwynar's evidence that he felt he was being choked, it affected his breathing and he feared for his life, it is certainly possible, if not probable, that Mr. Cwynar would try to stop the choking. [ 37 ] I have considered whether or not Mr. Cwynar could simply have stopped resisting or stopped the behaviour that resulted in the need for him to be restrained. However, I must determine what Mr. Cwynar did at the moment in time when he bit Constable Desmet. I also take into account the fact that Mr. Cwynar had been in an altercation with Mr.

Mitchell, he had been hit in the back of the head with an object sufficiently forceful enough to cause bleeding and he had also made allegations of a recent serious incident that would certainly be emotionally disturbing if true. He was clearly very agitated and upset. [ 38 ] It is Mr. Cwynar's intentions that must be assessed. The crown must prove beyond a reasonable doubt that Mr. Cwynar intended to bite Constable Desmet. Mr. Cwynar says it was a reflex action because he felt that he was being choked and feared for his life. In other words, Mr.

Cwynar asserts that the biting was an instinctive response to stop the choking action and in that sense, was not intentional. [ 39 ] I have carefully considered all the evidence. I must admit that reaching a decision in this case has not been easy. I am well aware that police officers frequently have to apply force in order to control individuals and or to prevent harm to themselves, to the suspect or to others. I am also well aware that a number of individuals respond violently to the police during these situations. [ 40 ] I accept that Mr.

Cwynar felt that he was being choked and that Constable Desmet’s arm and hand were placed in such a way to create that feeling or sensation. I find that Mr. Cwynar’s fear does have an objective basis. [ 41 ] In all the circumstances of this case and after a careful consideration of all the evidence, I am left with a reasonable doubt that Mr. Cwynar's action in biting Constable Desmet was intentional as that term is meant at law. [ 42 ] Mr. Cwynar is acquitted. BY THE COURT ___________________________ The Honourable Judge Flewelling