R. v. Iverson Date:, 2016 BCPC 282

Citation: R. v. Iverson Date: 20160822 2016 BCPC 282 File No: 41922-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALVIN RAY IVERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Gamble, T. Counsel for the Defendant: Herdy, W. Place of Hearing: Prince George , B.C. Dates of Hearing: June 7 and 8, August 3, 2016 Date of Judgment: August 22, 2016 INTRODUCTION

[ 1 ] By way of Information 41922-1, the accused, Alvin Ray Iverson, is charged as follows: Count 1: assaulting Marlowe Magante, contrary to s. 266 of the Criminal Code ; Count 2: possessing a weapon, namely a bat, for a purpose dangerous to the public peace or for the purposes of committing an offence, contrary to s. 88(1) of the Criminal Code ; Count 3: committing mischief to property of a value not exceeding $5000, namely, Roy Edgar’s car, contrary to s. 430(4) of the Criminal Code ; Count 4: uttering threats to Alexander Lanouece and Marlowe Magante to cause death or bodily harm contrary to s. 264.1 of the Criminal Code ; Count 5: obstructing Police Officers, Cst.

Rumming and Cst. Farwell in the execution of that police officer’s duty, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] All offences charged are alleged to have occurred on or about April 23, 2015, in the City of Prince George, B.C. [ 3 ] Counts 1 to 4, inclusive on Information 41922-01 are alleged to have occurred in the parking lot of the A & W restaurant located at the intersection of 20 th Avenue and Tamarack Street, in Prince George, British Columbia. I will refer to this location as the “A & W”. [ 4 ] Count 5 on Information 41922-01 is alleged to have occurred in the home of the accused, Alvin Ray Iverson, at 1973 Tamarack Street, in Prince George. I will refer to this location as “Mr.

Iverson’s residence.” [ 5 ] Mr. Iverson’s residence is the first building behind the A & W. It is separated from the A & W by an alley way and a dilapidated fence situated on the A & W parking lot. The alley and fence run parallel to 20 th Avenue. [ 6 ] Mr. Iverson has pleaded not guilty to all counts. His trial proceeded on June 7, 2016. At the conclusion of the evidence, I asked counsel for further submissions on Count 4, which the Crown provided on August 3, 2016.

This is my decision on the charges following the trial. [ 7 ] The Crown called four witnesses in its case in chief: civilian witnesses Marlowe Magante and Ray Edgar and RCMP Officers, Constable Rumming and Constable Mogg. [ 8 ] The Defence called Mr. Iverson as its only witness. [ 9 ] At the outset, the Defence admitted identity and the voluntariness of all statements made by Mr.

Iverson to police officers involved in the investigation of this offence. [ 10 ] The Defence and Crown agree the person referred to as “Alex” by the Crown witnesses testifying at the trial is Alexander Lanouece, the person named in Count 4 of Information 41922-1. IN A NUTSHELL [ 11 ] In the early morning of April 23, 2015, Mr. Iverson left his home at 1973 Tamarack Street to confront three people he assumed were drug dealers plying their trade in the neighbouring A & W parking lot. He armed himself with a blue metal baseball bat.

The persons he thought were drug dealers were actually A & W employees leaving after closing time and a friend who was giving them a ride home. The charges set out in Information 41922-01arose as a result of the ensuing confrontation and police intervention. ISSUES : [ 12 ] The matters in issue are as follows: a. Did Mr. Iverson chest bump and kick Mr. Magante? b. Did Mr. Iverson’s carrying the baseball bat at the material time constitute possession of a weapon for a purpose dangerous to the public peace or for the purposes of committing an offence? c. Did Mr. Iverson hit Mr. Edgar’s car with the baseball bat? d.

Did Mr. Iverson’s words and acts at the material time constitute “uttering threats” to Alexander Lanouece and Marlowe Magante to cause death or bodily harm? e. Did Mr. Iverson obstruct Constable Rumming and Constable Farwell in the execution of their police officer duties? BACKGROUND FACTS Evidence of Marlowe Magante [ 13 ] Marlowe Magante is one of the three complainants on Information 41922-01. He lives in Prince George and for the past three years, worked at the A & W.

There he has a number of duties, including supervising A & W kitchen staff and closing the restaurant for the evening. [ 14 ] On April 23, 2015, Mr. Magante was the closing supervisor. He was working alongside Alexander Lanouece, who he called

Alex. At 11:30 p.m. Mr. Magante was conducting his final checks in preparation of closing the A & W for the evening. As he was locking up, Mr. Magante heard shouting, but did not know its source. He recognized it was a man’s voice, but did not think the shouting had anything to do with him, so he ignored it. [ 15 ] Mr. Magante locked the doors and left the restaurant with Mr. Lanouece. They headed to A & W’s side parking lot where they had arranged to meet Roy Edgar who was going to give them a ride home in his vehicle. It was late at night and dark. [ 16 ] As he headed towards Mr. Edgar’s vehicle, Mr.

Magante heard a man shout, “You can’t do drugs from here.” The shouting man was the accused, Mr. Iverson. [ 17 ] Mr. Iverson emerged from behind the fence at the rear of the A & W parking lot. He was carrying a blue metal baseball bat. At this time the three complainants, Marlowe Magante, Alexander Lanouece and Roy Edgar, were all in the front side main entrance of A & W’s parking lot which faces Tamarack Street. Mr. Iverson was between them, yelling. Mr. Iverson was a lot bigger than Mr. Magante, who is only 5’4” and weighs 115 pounds. [ 18 ] Mr. Magante told Mr.

Iverson he was not dealing drugs and he worked at the A & W. He introduced himself to Mr. Iverson and took off his jacket to show his A & W uniform. Mr. Iverson was furious; he said the “f word”; he did not care what Mr. Magante said and he did not recognize him. [ 19 ] When he came close to him, Mr. Magante noticed Mr. Iverson was holding a baseball bat. Mr. Iverson then “chest bumped” and kicked Mr. Magante. Mr. Magante could not remember which of his legs Mr. Iverson struck or which leg he used to kick him. Mr. Magante did say that if Mr.

Iverson kicked him on the left side, he probably used his left leg, and if he kicked him on the right side, then he used his right leg. Mr. Magante was unequivocal that Mr. Iverson kicked him once on his upper leg. [ 20 ] Mr. Magante said at that moment he knew their lives were in danger. He thought Mr. Iverson might hit him again, this time with the baseball bat, so he decided to give Mr. Iverson some space. [ 21 ] Mr. Magante and Mr. Lanouece tried to get into Mr. Edgar’s waiting vehicle, which was about 15 to 18 feet away. Mr. Edgar was standing outside his car. They could not get into Mr.

Edgar’s car because Mr. Iverson stood in the way, harassing and confronting Mr. Edgar and Mr. Lanouece. In his fury, Mr. Iverson hit Mr. Edgar’s car with the baseball bat. Mr. Iverson was demanding the three complainants go away. Mr. Edgar and Mr. Lanouece repeatedly said they were not drug dealers and Mr. Edgar was just there to give Mr. Lanouece and Mr. Magante a ride home. [ 22 ] None of the three complainants had a weapon at the time of the incident and none of them struck Mr. Iverson. They just wanted to go home. [ 23 ] Mr. Magante was scared. It was the first time he had been assaulted.

He experienced some swelling where he was kicked in the leg and it hurt for a couple of days. He suffered no injury to his chest. [ 24 ] When Mr. Iverson chest bumped and kicked Mr. Magante, Mr. Edgar called 911. The police arrived quickly in three police vehicles. Mr. Magante and Mr. Edgar spoke with the officers. Evidence of Roy Edgar [ 25 ] On April 23, 2015, shortly after midnight, Roy Edgar was sitting in his 2014 Kia Forte waiting for Mr. Magante and Mr. Lanouece to finish their shift at the A & W so he could give them a lift home. Mr. Edgar had not met Mr. Magante before.

He knew him to be a co-worker of his friend Alex Lanouece. Mr. Edgar referred to Mr. Magante as “Fritz.” [ 26 ] While sitting in his car Mr. Edgar heard a loud bang behind him on the left. He was not sure what it was, but had a feeling it involved his car. Mr. Edgar then heard a man yelling from behind his vehicle. Mr. Edgar rolled down his window to see what was going on. He did not see anyone, so he got out and walked to the rear of his vehicle to investigate the racket. [ 27 ] Mr. Edgar saw Mr. Iverson walking away from his vehicle with his back to him. Mr. Iverson was yelling at Mr. Magante and Mr.

Lanouece, who were walking towards Mr. Edgar’s vehicle. Mr. Edgar could not remember what he was saying, but from the general gist of all the yelling he understood Mr. Iverson was accusing them of selling drugs. [ 28 ] Mr. Edgar described Mr. Iverson as being quite angry and behaving very aggressively. Standing behind his vehicle, Mr. Edgar could clearly see Mr. Magante and Mr. Lanouece in the parking lot walking toward him. He could clearly see Mr. Iverson, who was between Mr. Edgar and the two A & W employees - yelling. [ 29 ] Mr. Edgar saw Mr. Iverson walk toward Mr. Magante and Mr.

Lanouece with a bat in hand. Mr. Iverson was asking them who they were. He was telling them to stay out or just to leave. At that point, Mr. Edgar started yelling at Mr. Iverson that he was just there to pick up someone and Mr. Magante and Mr. Lanouece were yelling they work at A & W and Mr. Edgar was their ride. [ 30 ] Mr. Iverson continued to yell, demanding to know if Mr. Magante and Mr. Lanouece were dealing drugs. He advanced within a metre of them, yelling and holding the baseball bat slightly above his head in an aggressive and threatening manner. Mr.

Iverson’s general demeanor and body language suggested he was angry and capable of violence. He heard Mr. Magante say to Mr. Iverson, “I’m the supervisor here; we are just workers; we are just waiting for a ride.” [ 31 ] Mr. Edgar tried to reassure Mr. Iverson several times they were not doing anything wrong, they were waiting for a friend to finish work, so they could just go home. At that point, Mr. Iverson chest bumped Mr. Magante. Mr. Edgar could not remember the exact details, but at some point during the yelling back and forth, Mr. Iverson kicked Mr. Magante. Mr.

Edgar described and demonstrated in court how Mr. Iverson kicked Mr. Magante by extending his right leg, bending his knee and thrusting his foot in a forward motion.

[ 32 ] Mr. Magante tried to back away from Mr. Iverson while continuing to assure him they were just there to get picked up and Mr. Edgar was just there to pick them up. At no point did Mr. Edgar, Mr. Magante or Mr. Lanouece strike Mr. Iverson. [ 33 ] After Mr. Iverson chest bumped and kicked Mr. Magante, Mr. Lanouece asked Mr. Edgar to call the police, which he did. At that point, Mr. Edgar turned his back on the altercation and dialled 911 on his cell phone. Meanwhile, the yelling continued. Mr. Iverson said he was sick of people dealing drugs. He also said something about the fence which Mr.

Edgar described as “falling down, looking old and decrepit.” Mr. Edgar thought Mr. Iverson was blaming them for damaging the fence. He heard Mr. Magante or Mr. Lanouece saying to Mr. Iverson, “he is just picking us up; he is just our ride; we work here.” Then from Mr. Iverson, he heard more yelling, more ranting. Mr. Edgar was frightened. He just wanted to go home. [ 34 ] While he was dialling the police, both Mr. Magante and Mr. Lanouece came up from behind Mr. Edgar, saying, “let’s go, let’s just go.” Mr. Edgar assumed at that point, they had calmed Mr.

Inverson down enough that he disengaged from the confrontation. [ 35 ] Mr. Edgar, Mr. Magante and Mr. Lanouece got into the vehicle. Mr. Edgar handed the phone to Mr. Lanouece, who talked to the police, while Mr. Edgar pulled out of the A & W parking lot. At this time, Mr. Edgar’s vehicle was facing Harvey’s Car and Muffler dealership on 20 th Avenue across Tamarack Street. As they were leaving Mr. Magante or Mr. Lanouece said “he is over there and pointed to the left.” Mr. Edgar turned his head and saw Mr. Iverson go into the front door of the house next door to the A & W parking lot. [ 36 ] While Mr.

Lanouece was on the phone, Mr. Edgar pulled out of the A & W parking lot onto 20 th Avenue and into the 7-11. Mr. Lanouece told the police their whereabouts. Shortly thereafter, the police showed up and took their statements. Mr. Edgar told officers the assailant went into the house immediately left on Tamarack Street, the first house after A & W. [ 37 ] While at the 7-11 Mr. Edgar inspected his vehicle and noticed a sharp ding about 1½ inches on his vehicle near the driver’s side rear. This is where Mr. Iverson hit his vehicle with the baseball bat. Mr. Edgar said he had it fixed.

He was not sure of the total cost of the repair, but he paid $300 deductible on his insurance claim. [ 38 ] At trial, neither Mr. Magante nor Mr. Edgar referred to Mr. Iverson by name nor did they suggest he was someone they knew or recognized. They referred to him as the “yelling man” or “shouting man” or the “man with the baseball bat.” Evidence of Constable Rumming [ 39 ] Constable Rumming was the primary investigator in this matter. He has been a member of the RCMP for 12 years [ 40 ] At approximately 12:35 a.m. on April 23, 2015, Constable Rumming responded to Mr. Edgar’s 911 call. He met with Mr. Edgar, Mr.

Magante and Mr. Lanouece at A & W. He had never met any of these complainants previously. They told Constable Rumming a 45 to 50 year old Caucasian male with a white goatee and stringy white hair carrying a blue aluminum baseball bat came over from a residence on Tamarack Street and threatened them, saying they were drug dealers, and they had cut through or broken into his yard. Mr. Magante also said he was kicked in the leg. Mr. Edgar showed Constable Rumming the damage to the driver’s side of his vehicle from the bat.

The complainants pointed to the house at 1973 Tamarack Street where they saw the assailant enter while they were leaving. Constable Rumming made no mention that any of the complainants recognized Mr. Iverson or identified him by name. [ 41 ] Constable Rumming went to the door of 1973 Tamarack to find out what was going on. He knocked on the front door and almost immediately the man who matched the complainants’ description of the assailant opened the door. He introduced himself to the officer as Alvin Iverson. Constable Rumming had never met Mr. Iverson before. [ 42 ] Constable Rumming told Mr.

Iverson he was investigating a male with a bat who had struck a car and threatened two male employees of the A & W. Mr. Iverson said immediately, “I thought they were selling drugs.” [ 43 ] Constable Rumming believed Mr. Iverson was a suspect in the incident at the A & W and told Mr. Iverson he was under arrest for assault with a weapon and mischief. [ 44 ] Mr. Iverson pulled back away from Constable Rumming and said, “No, I’m not.” He turned away and went back into his residence. Constable Rumming said “a bit of a tussle ensued, and Mr.

Iverson was taken to the ground and handcuffed without any further incident.” Constable Rumming went on to explain “the tussle.” He said that when he told Mr. Iverson he was under arrest he was concerned Mr. Iverson was going to run back into the house. Constable Farwell was also on the outside stoop of Mr. Iverson’s residence. Constable Rumming grabbed Mr. Iverson and the two officers jumped on top of him. The officers ended up on the floor inside Mr. Iverson’s house with Mr. Iverson underneath them. Mr.

Iverson gave up almost immediately, after which there was no struggle or fight. [ 45 ] While this tussle ensued, a third officer, Constable Mogg, went into Mr. Iverson’s residence and seized a blue metal baseball bat. [ 46 ] The officers placed Mr. Iverson in handcuffs and walked him to the police vehicle. They arrested him for assault with a weapon and mischief. Constable Rumming made no mention of resisting arrest or obstructing a peace officer. [ 47 ] While in the back of the police vehicle, Mr. Iverson mentioned to Constable Rumming he had pre-existing injuries to his shoulder. Mr.

Iverson had calmed down a fair amount in the police vehicle, so Constable Rumming removed his handcuffs. At that point he noted Constable Rumming smelled liquor on Mr. Iverson’s breath. [ 48 ] Constable Rumming did not think Mr. Iverson was going to be a further problem that evening given the A & W was closed. He released Mr. Iverson on a Promise to Appear and Undertaking. He did not consider Mr. Iverson a danger to himself or others. Constable Rumming said, “I did not feel at any point there was any need to place Mr. Iverson in cells that evening. I didn’t believe there was going to be a continuation of offence.

Yes, he was intoxicated, but he was very capable of taking care of himself. His demeanor had changed

significantly since he was in the back of the police vehicle.” [ 49 ] While Constable Rumming was getting together the release documents, Mr. Iverson said, unprompted, that he was really sorry, he thought they were dealing drugs. He went to say, “Yea, I fucked up. I hit his car. I guess I hit him after . . . I really fucked up... you can keep my bat.” [ 50 ] This conversation took place in the police vehicle while parked in front of Mr. Iverson’s residence. At the time Mr. Iverson made these admissions, Constable Rumming was not questioning Mr.

Iverson or trying to elicit information from him. [ 51 ] Constable Rumming released Mr. Iverson after approximately 35 to 40 minutes without ever having taken him to the detachment. Mr. Iverson went on his way without incident. [ 52 ] Constable Rumming agreed in cross examination the area around A & W was a high crime area. It was a lower middle class residential neighbourhood plagued by drug dealers selling drugs on the street. Evidence of Constable Mogg [ 53 ] Constable Mogg introduced into evidence the blue metal baseball bat he seized from Mr. Iverson’s residence.

He found the bat in a closet while Constables Rumming and Farwell were tussling with Mr. Iverson. Constable Mogg said it appeared to him the other officers had Mr. Iverson under control. The bat was marked as Exhibit 1 in the trial. The Defence admitted there was no issue with the continuity of this exhibit. Evidence of the Defence Evidence of Mr. Iverson [ 54 ] Mr. Iverson is 48 years old. He lives with his 13 year old son at 1973 Tamarack Street, immediately across the back alley from A & W. He has lived at that address for two years.

Previously, he and his son lived in the residence next door to 1973 Tamarack Street for four years. [ 55 ] In the six years he lived on Tamarack Street, Mr. Iverson observed a lot of anti-social behavior, such as crack shacks, alcoholism, fights. It used to be a residential neighbourhood. Now, a lot of people have moved away because they did not want to be in the neighbourhood. [ 56 ] In his former address on Tamarack Street, Mr. Iverson’s home was protected by a five foot high fence and security system. When he moved into 1973 Tamarack Street, his yard was separated from A & W by a dilapidated fence.

At the time of the incident, Mr. Iverson had no fence on his property. He has since installed a wire mesh fence. [ 57 ] People came in and through Mr. Iverson’s yard constantly. Mr. Iverson said that because he had no security system he had “people running rampant through my yard, stealing stuff, all the time.” [ 58 ] Mr. Iverson’s kitchen and living room windows face the A & W parking lot. He could constantly see everything that was going on outside. He had a TV set up near his living room window.

When friends and family came over to visit, they joked it was like watching two TVs, one reality and one TV. [ 59 ] Mr. Iverson was particularly troubled by the drug trafficking carried on day and night in the A & W parking lot. In the past he walked over to the A& W to speak to the manager. Because he had been a construction worker he offered to fix the dilapidated fence, which had been “knocked down, kicked down and driven into by their patrons.” The wrecked fence was ineffective in slowing the heavy traffic at night from A & W to the back alley adjacent to Mr. Iverson’s residence.

Instead of walking around the A & W fence, drug dealers ripped out boards and made their own way through. Mr. Iverson nailed it back together a few times to stem the tide of drug trafficking in that area. [ 60 ] Mr. Iverson said the trafficking begins with A & W opening at 6 a.m. and continues into the night. People are sitting at its tables dealing drugs. The drug dealing at A & W is something he feels strongly about. He does not want it going on in his neighbourhood as he has children in his home all the time. [ 61 ] On the night in question, Mr. Iverson was home.

He had been drinking beer, perhaps six or seven in the previous six hours. He looked out his living room window. He saw a vehicle sitting in the parking lot and a lone individual sitting inside the vehicle. He saw two people talking. A & W was closed. He automatically assumed he was seeing a drug deal going down. After all, he saw individuals sitting in a waiting vehicle in the A & W parking lot selling drugs basically every night. [ 62 ] Mr. Iverson grabbed his baseball bat and went over to the A & W.

He told the individuals he encountered there to “get off the freaking property . . . get out of here . . . go sell your drugs somewhere else.” Mr. Iverson said he was not angry. He was “upset at the drug paraphernalia” and what he assumed was going on. He took his bat to get the drug dealers off of A & W property and out of the area. He said that he did not go to confront the drug dealers in a violent manner. He just wanted them to leave. He took the bat to deter them - as an “intimidating factor” - to show them he meant business.” [ 63 ] When he went to make the drug dealers move on Mr.

Iverson encountered two individuals, one of whom was in the vehicle. The man in the vehicle got out and said, “We’re not drug dealers. We’re just here to pick someone up from work and pointed out the man I saw today. I am just here to pick him up, and we are just leaving.” By the “”man I saw today” Mr. Iverson was referring to Marlowe Magante who had testified earlier. [ 64 ] Mr. Iverson said at that moment, “Fritz” [Mr. Magante] came out of A & W, and called him by name. Mr. Inverson said, “He recognized me. I am so surprised he knew my name. How he knew my name, I don’t know.

I am there with people to eat supper

sometimes. I was kinda shocked at that time.” Mr. Iverson said that he often went to the A & W with his son. [ 65 ] Mr. Magante told Mr. Iverson that Mr. Lanouece was his employee.” Mr. Iverson was surprised, and said, “Shit, I’m sorry. I’m going to go home then. I said I am sorry, I shook his hand.” [ 66 ] Mr. Iverson acknowledged “there was hollering before Fritz came out” but added, “there was nothing being done. No one was been assaulted. I know that to be a fact. Fritz came out. We discussed; I apologized; I went home. There was no chest bumping. There was no kick.” [ 67 ] Mr. Iverson went home and sat down.

His son was at home sleeping. He thought it was 11:30 or 11:45 p.m. He was having a drink by himself, listening to music from his computer. Mr. Iverson said: I am sitting there nonchalantly. About a half hour later, I am hearing this loud banging at my door, I think. “What the hell?” I get up and open the door and here are the cops. ‘You are under arrest for assault.’ I said, no, no, no, and I just backed up. You can’t do that, I have my son here. Next thing you know, there are four of them standing in my doorway. All I said is no, please don’t. Two cops jumped me. The third one got on top of me.

He had me on the couch, rolled me off the couch onto the floor. The coffee table went flying. I was hollering at them my shoulder is injured, my son’s in the back, please don’t do this. I will comply, no problem, just let me know exactly what is going on. I got struck a couple of times while I was being held . . . on the left side. I wasn’t resisting, this is what happened. Then he stood me up. I was attacked by two officers, two got on me and one hit me. This all happened within 10 seconds. . . . I wasn’t resisting. . . I raised my arms.

When they were going to put the cuffs on me, I told them I have two torn rotor cuffs. I said, “Please put the cuffs on in front of me if you are going to put cuffs on me. “Before I knew it, someone behind me, grabbed my wrists, went like this, my shoulder popped, I dropped down, and they put the cuffs on me. [ 68 ] Mr. Iverson said the officers put the cuffs on with his hands behind him and in doing so, his shoulders re-tore. The officer removed the handcuffs one-half hour later when he was in the police car. He spent approximately 40 minutes in the police car. [ 69 ] Mr.

Iverson says that for the past six years he has complained to the police about the drug dealing. He is told “they will get back to me” but no one gets back to him with any information as to whether they dealt with his complaint. The police do not show up for an hour or two. By then, everyone is gone. [ 70 ] Mr. Iverson testified that the problems in his neighbourhood continue. Recently he found a man passed out on his walkway. He tried to wake him but was unable to do so and had to call the police to have him removed. [ 71 ] Mr. Iverson says he does not phone the police to complain anymore.

With these proceedings ongoing, he does not want to be involved. [ 72 ] Mr. Iverson says he realizes he got the wrong guys, but he apologized and went home. He definitely wished things had gone differently. Confrontation Rule [ 73 ] In his direct examination Mr. Iverson said: At that time Fritz came out of A & W, and he called me by my name. I went to A & W all the time, with my son. He recognized me. I am so surprised he knew my name. How he knew my name, I don’t know. I am there with people to eat supper sometimes. I was kinda shocked at that time. He says that’s my employee. I was surprised.

I said, “Shit, I am sorry. I am going to go home,” then. I said, “I am sorry,” I shook his hand. There was hollering before Fritz came out. [ 74 ] When Mr. Iverson completed his testimony, I invited submissions from counsel on whether this aspect of his evidence engaged the rule in Brown and Dunn, also called the confrontation rule. This rule has been codified in

section 11 of the Canada Evidence Act . [ 75 ] Crown counsel referred to R. v. Quansah, 2015 ONCA 237 , a relatively recent decision of the Ontario Court of Appeal in which Watt J.A., for the unanimous Court, reviewed and restated the principles relating to the confrontation rule . [ 76 ] The rule in Browne v. Dunn imposes a duty on an opposing counsel to give a witness an opportunity to explain evidence which will be called later to impeach the credibility or testimony of that witness. ( Quansah , paragraph 75 )

[77] The rule is one of fairness - to the witness, the parties and the trier of fact. It is fair to a witness whose credibility is underattack to given an opportunity to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted. It is fair to a party whose witness is impeached to have notice of the precise aspects of the contested testimony so that party can decidewhether or what confirmatory evidence to call.

Finally, it is fair to the trier of fact, who, without the rule, would be deprived ofinformation that might show the impeachment to be unfounded and thus compromise the accuracy of the verdict. (Quansah, paragraph77) [78] The failure to confront a witness in cross-examination with contrary evidence can support an inference the opposing partyaccepts the witness’ evidence in its entirety or at least on the specific point (Quansah, paragraph 79) [79] The rule does not apply to every scrap of evidence.

Where the evidence is insignificant in the overall context of the case thefailure to abide by the rule will be of little or no effect. It applies only to matters of substance. Counsel need not ask contradictingquestions about straight forward matters of fact on which the witness has already given evidence that he or she is very unlikely tochange: R. v. Khuc, 2000 BCCA 20 at para. 44. Put another way, counsel need not slog through lengthy and prolix cross-examination or the “muck of minutiae”: Quansah, at paragraph 86; R. v.

Poole, 2015 BCCA 464 , at paragraph 41. [80] The rule is one of trial efficiency to avoid having to re-call witnesses. [81] The rule is not engaged when it is apparent from the overall tenor and conduct of the cross-examination the witness’ evidence iscontested. For example, in R. v. Drydgen, 2013 BCCA 253, the accused was on trial for robbery. Identification was very much in issue. The complainant was cross-examined extensively on whether the robber had a silver gun. On appeal, the Court concluded the rule inBrowne v.

Dunn was not engaged because the complainant had been questioned extensively on his ability to observe in the chaoticcircumstances of the robbery. It was clear from the cross-examination of the complainant the defence’s theory was that there was nosilver gun. The Crown was not ambushed.

It would have been a pointless exercise to put that express proposition to the complainant. [82] Where a material portion of the witness’s evidence is untouched or implicitly accepted on cross-examination, non-compliancewith the rule can result in little, if any, weight being given to the offending evidence. [83] The defence did not put Mr. Iverson’s “recognition and reconciliation evidence” to Mr. Magante in cross-examination beyondasking him generally if Mr. Iverson was angry and actually yelling or speaking in a normal voice. Defence counsel focused his cross-examination on when Mr. Magante first observed Mr.

Iverson carrying the baseball bat, particulars of Mr. Iverson’s physical contactwith him and the extent of Mr. Magante’s injuries. Mr. Magante, the Crown and the trial judge could have inferred that Mr. Magante’sevidence of Mr. Iverson’s demeanor during the altercation was unchallenged. There was nothing about the conduct of the cross-examination, in substance or tenor, to suggest the defence did not accept Mr. Magante’s evidence that Mr. Iverson was furious, yellingand accusatory and did not recognize him. Defence counsel never suggested to Mr. Magante that he recognized Mr.

Iverson at the timeof the altercation and called him by name. There was no mention to Mr. Magante that Mr. Iverson realized his error, apologized for hismisunderstanding, shook his hand and departed peaceably without any kick or chest bump. Collateral Issues [84] In response to my raising with counsel the breach of the rule in Browne v. Dunn, Defence counsel said that Mr. Iverson’sevidence of this reconciliation was a collateral issue and the Crown was not entitled to recall Mr. Magante to respond to that evidence. [85] The Supreme Court of Canada in R. v.

Krause, (SCC), defined a collateral issue as one not determinative of anissue arising in the pleadings or indictment, or not relevant to matters which must be proved for the determination of the case. There is ageneral rule that a witness’s answer to a question that does not relate to the facts in issue is final. The practical effect of the collateral factrule is that the cross-examiner can ask the question but cannot call evidence to contradict the answer, even in a case which turns oncredibility. This is rule of trial expediency to prevent a trial from becoming unfocused and unending.

In this case, the evidence waselicited in direct examination. [86] The question in this case is whether Mr. Magante’s evidence on recognition and reconciliation relevant to a matter in issue forpurposes other than impeaching his credibility. If so, then the Crown would be permitted to recall Mr. Magante to rebut Mr. Iverson’sevidence. The defence says the evidence of whether Mr. Iverson and Mr. Magante reconciled prior to their departure from the scene wascollateral, meaning relevant only to Mr.

Iverson’s credibility as a witness at trial. [87] In my view the evidence is integral and essential to the issue of whether Mr. Iverson, in his rage, assaulted Mr. Magante,threatened Mr. Magante and Mr. Lanouece and hit Mr. Edgar’s vehicle with his baseball bat. This is not an incident that occurred at adifferent time or different location or involved different people. Remedies for Breach of the Rule in Browne and Dunn [88] I find that Mr. Iverson’s evidence on recognition and reconciliation was not collateral and the defence did breach the rule inBrown and Dunn. The matters on which Mr.

Magante was not confronted in cross-examination were material to his evidence on thesubstantive offences of assault, mischief and uttering threats. [89] The remedy for the breach of the confrontation rule is variable. As set out in Quansah, the remedy is a function of severalfactors including, but not only: (

a) seriousness of the breach; (

b) the context of the breach; (

c) the timing of the objection; (

d) theposition of the offending party; (

e) any request to permit recall of a witness; and (

f) the availability of the impugned witness for recall. [90] The usual remedy where there has been a breach of the rule of Browne v. Dunn is to recall the witness who was not confrontedwith the contradictory evidence. Crown counsel says his attempts to contact Mr. Magante to return to court were unsuccessful. Mr.Magante was not available to be recalled. The Crown submits the Court ought to consider the breach in assessing the weight to beaccorded to that aspect of Mr. Magante’s evidence that was not challenged and Mr. Iverson’s contradictory evidence. See: Drydgen,paragraph 26.

Findings on Credibility on assault, threatening and mischief [91] Mr. Iverson says he did not assault or threaten any of the complainants. He agrees he went to the A & W parking lot. Hethought he was witnessing a drug deal. He took his baseball bat as an “intimidating factor.” He said he was not angry but upset at thedrug paraphernalia and the drug deal he assumed was going down. He just wanted the drug dealers to get off the A & W property andleave the area. He admits there was some hollering before Mr. Magante appeared. When Mr. Magante recognized him and told himMr. Lanouece was his employee, Mr.

Iverson apologized and went home. He denies chest bumping or kicking Mr. Magante. [92] I do not believe Mr. Iverson was as calm and controlled as he describes. He had been drinking throughout the evening. He wasclearly distressed at the rampant drug trafficking in his neighbourhood generally and at the A & W in particular. Mr. Iverson had calledthe police to complain about drug transactions in the past without success. He grabbed his baseball bat and went over to the A & Wparking lot to confront the people he assumed were drug dealers.

He told them “to get off the freaking property, get out of here, go sellyour drugs somewhere else.” In my view, Mr. Iverson’s claim that he was not angry was internally inconsistent with his own evidencethat he was upset and that there was “hollering before Fritz came out.” [93] During his testimony Mr. Magante referred to Mr. Iverson as the “man who was shouting,” “the man with the baseball bat,”“the guy who came from the bushes.” Not once did he suggest that he knew or recognized Mr. Iverson. He was never asked thatquestion by either the Crown or the Defence. He was never asked in cross-examination if Mr.

Iverson apologized to him, shook hands,and departed peaceably. Mr. Magante’s evidence that Mr. Iverson was furious was unchallenged. [94] Mr. Iverson’s statement to Constable Rumming shortly after the incident, included his admission, “I thought they were dealingdrugs . . . I really fucked up . . . I hit his car and I guess I hit him after.” There is no suggestion from his statements to the police on thenight in question that Mr. Iverson knew or recognized Mr. Magante or apologized to him or shook his hand. [95] Mr. Magante’s version of events was supported by Mr.

Edgar, who was there to pick up his friend, Alex Lanouece. Mr. Edgardid not know Mr. Magante, except as Mr. Lanouece co-worker. Mr. Lanouece did not testify at trial. [96] Mr. Iverson’s denial that he was angry at the complainants or chest bumped or kicked Mr. Magante is inconsistent with theevidence of Mr. Magante and Mr. Edgar and Mr. Iverson’s statements to Constable Rumming made shortly after the incident. [97] Mr. Iverson was not asked in direct or cross-examination if he hit Mr. Edgar’s vehicle with the baseball bat. He never denied hehit Mr. Edgar’s vehicle with the baseball bat.

He never confirmed or denied telling Constable Rumming, “I hit his car. I guess I hit himafter.” [98] Even without diminishing the weight of Mr. Iverson’s evidence for the breach of the rule in Browne & Dunn, I am able toresolve the conflicts in evidence by an assessment of credibility. Credibility of the Complainants [99] I found both Mr. Magante and Mr. Edgar credible and reliable witnesses. Their evidence substantially corroborated oneanother. They were not close friends and there was no evidence or allegation of collusion. Mr. Edgar and Mr.

Magante had no reason tofabricate these allegations and no animus toward Mr. Iverson. [100] Mr. Edgar and Mr. Lanouece had just finished work. Mr. Edgar was driving them home. There was no evidence or allegationthat any of the complainants were intoxicated at the time of the incident. They were in close proximity of one another. Accordingly, thereliability of their evidence was not undermined by drugs or alcohol or distance. [101] Mr. Magante and Mr. Edgar did not embellish the assault and Mr. Magante did not exaggerate his injury.

He said he was scared,which is expected given he was attacked in the parking lot of his workplace at night in a troubled neighbourhood. Mr. Edgar said he wasfrightened. He did not suggest he saw Mr. Iverson hit the car with the baseball bat. It was Mr. Magante who said Mr. Iverson hit Mr.Edgar’s vehicle, and his evidence in this regard went unchallenged. [102] Mr. Edgar called the police immediately after Mr. Iverson had chest bumped and kicked Mr. Magante. There is no evidencethat any of the complainants identified Mr. Iverson by name to the police. They pointed out the house which they saw Mr.

Iverson enterafter he left the A & W parking lot. [103] Mr. Magante and Mr. Edgar’s evidence that Mr. Iverson was furious, yelling, accusatory, aggressive, threatening and combativewhen substantially unchallenged in cross-examination. [104] Mr. Magante told Mr. Iverson he was not dealing drugs and he worked at the A & W. He introduced himself to Mr. Iverson andtook off his jacket to show his A & W uniform. Mr. Magante said Mr. Iverson was furious; he said the “f word”; he didn’t care what hesaid and Mr. Iverson did not recognize them.

The Basic Legal Principles and the Offence [105] The Crown bears the burden of proof beyond a reasonable doubt. This standard of proof applies to each and every essentialelement of each offence. There is no burden of proof on Mr. Iverson. He is presumed to be innocent of all charges: R. v. Lifchus, (SCC), [1997] 3 SCR 320, paragraph 13; R. v. Beauchamp, [2000] S.C.R. 720, paragraph 12. [106] Proof beyond a reasonable doubt is a standard higher than proof on a balance of probabilities, however, it does not involve proofof guilt to an absolute certainty.

It is not proof beyond any doubt: Lifchus, paragraph 14. [107] Mr. Iverson testified at trial. He denied assaulting Mr. Magante or threatening any of the complainants. He admitted possessingthe baseball bat as an “intimidating factor” and he did not admit or deny hitting Mr. Edgar’s vehicle with his baseball bat. He

specifically denied resisting or obstructing the officers in the performance of their duties. [108] If I accept Mr. Iverson’s evidence with respect to Counts 1, 2, 3 and 5, then I must find him not guilty. If I do not necessarilyaccept his evidence but find that it leaves me with a reasonable doubt, then I must acquit. Even if I completely reject Mr. Iverson’sevidence and find that it does not leave me with a reasonable doubt, I must acquit him unless the evidence as a whole at trial that I doaccept convinces me of his guilt beyond a reasonable doubt:. R. v.

W.(D.), (SCC), [1991] 1 SCR 742. [109] Finally, if, after a careful consideration of all the evidence, I cannot decide whom to believe, I must acquit”. R. v. J.H.S., 2008SCC 30 , at paragraph 12, citing Wood J.A., at R. v. H. (C.W.), (BCCA). [110] It is trite law that as the trier of fact, I may accept some, none or all of what a witness said. I must also consider the exhibits,which include the baseball bat: R. v. J.H.S., 2008 SCC 30 .

Count 1: assault [111] On Count 1, the charge of assaulting Marlowe Magante contrary to s. 266 of the Criminal Code, the Crown must prove thefollowing essential elements of the offence beyond a reasonable doubt: (

a) Mr. Iverson applied force to Mr. Magante; (

b) Mr. Iversonintentionally applied the force; (

c) Mr. Magante did not consent to the force Mr. Iverson applied; and (

d) Mr. Iverson knew that Mr.Magante did not consent to the force he applied. [112] Both Mr. Magante and Mr. Edgar say that Mr. Iverson “chest bumped” and kicked Mr. Magante. This incident precipitated theircalling 911 for assistance. Both these actions constitute Mr. Iverson making physical contact with Mr. Magante. I do not accept Mr.Iverson’s evidence that he did not “chest bump” or kick Mr. Magante and I do accept the evidence of Mr. Magante and Mr. Edgar in thisregard. I am satisfied beyond a reasonable doubt that Mr. Iverson applied force to Mr.

Magante. [113] I also find the chest bump and kick were intentional. Mr. Iverson walked up to Mr. Magante and thrust his chest against Mr.Magnate. He extended his leg and thrust his foot into Mr. Magante’s upper thigh. Neither of these acts was accidental. While this wasgoing on, Mr. Iverson was telling the complainants they had to “get off the freaking property . . . get out of here . . . go sell your drugssomewhere else.” Mr. Iverson was angry and hollering. He had his baseball bat raised above his head in a threatening and aggressivemanner. I am satisfied beyond a reasonable doubt that Mr.

Iverson intentionally applied force to Mr. Magante. [114] The evidence further shows that while Mr. Iverson was hollering and ordering them to leave, the complainants were trying tocalm him down. Mr. Magante was trying to explain to Mr. Iverson that he was an employee of A & W, as was Mr. Lanouece and thatMr. Edgar was their ride home. Mr. Magante took off his jacket to show Mr. Iverson his A & W uniform. Mr. Iverson ignored him. Hewas not pacified by Mr. Magante’s overtures and continued to rant. Mr. Magante and Mr. Edgar were afraid.

It was dark and therestaurant was closed and they were being confronted by an angry man wielding a baseball bat accusing them of dealing drugs. Mr.Magante backed away in order to give Mr. Iverson space. Mr. Edgar called the police when Mr. Iverson kicked Mr. Magante. Thecomplainants clamoured into Mr. Edgar’s vehicle and said, “Let’s go, let’s go.” I am satisfied beyond a reasonable doubt that Mr.Magante did not consent to Mr. Iverson’s chest bump or kick. [115] The Crown must prove beyond a reasonable doubt that Mr. Iverson knew that Mr. Magante did not consent to the physicalcontact (chest bump and kick).

The Crown may do this by (

a) showing Mr. Iverson knew Mr. Magante did not consent; or (

b) showingMr. Iverson knew there was a risk that Mr. Magante did not consent and proceeded in face of that risk; or (

c) Mr. Iverson was aware Mr.Magante did not consent, but deliberately chose to ignore them because Mr. Iverson did not want to know the truth. Any one of thesewould be sufficient to establish Mr. Iverson’s awareness of Mr. Magante’s lack of consent. See: R. v. A.D., 2010 BCSC 1780. [116] The evidence shows Mr. Magante, Mr. Lanouece and Mr. Edgar were all trying to calm Mr. Iverson and curb his anger andaggression. I am satisfied beyond a reasonable doubt that Mr. Iverson knew Mr.

Magante did not consent to fight or to any sort ofphysical altercation or he knew there was a risk and proceeded in the face of that risk, or deliberately chose to ignore the risk. [117] The Crown has proven each of the four essential elements of the offence of assault beyond a reasonable doubt. Count 2: possessing a weapon for dangerous purpose [118] Mr. Iverson is also charged with possessing a bat for a purpose dangerous to the public peace contrary to s. 88(1) ofthe Criminal code, which states: 88.

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or anyammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. [119] Possession of a weapon for a dangerous purpose is a specific intent offence. In order to prove that Mr. Iverson possessed thebaseball bat for a purpose dangerous to the public peace, the Crown must prove beyond a reasonable doubt: (1) the purpose for whichthe weapon was possessed; and (2) the purpose was, in all of the circumstances, dangerous to the public peace.

These two elementsmust coincide at a point in time: R v. Kerr, 2004 SCC 44 . In this case, there is no issue that Mr. Iverson possessed the bat. Theissue is the purpose for which he possessed the bat. [120] Kerr is the salient authority on s. 88(1). Mr. Kerr was a prison inmate and worker who armed himself with a homemade knifeand an ice pick in order to defend himself from an impending attack from the Indian Posse gang that more or less controlled the prisonthough violence. Mr. Kerr killed another inmate with one of the weapons. He was charged with murder and possession of a weapon fora dangerous purpose.

The trial judge acquitted him on both charges. With respect to the s. 88 offence, the trial judge found Mr. Kerrpossessed the weapons on the day in question for the purpose of defending himself against an imminent and clearly unavoidable attackby specific individuals. The majority of the Supreme Court of Canada held (at paragraphs 38 and 94) that possession of a weapon forself-defence is possession of a weapon for a purpose dangerous to the public peace unless there is evidence that the perceived attack wasunavoidable. In Mr. Kerr’s circumstances, the violence was specific and inescapable and he was acquitted.

[121] In Kerr, the Supreme Court was divided on whether the test to prove dangerous purpose was wholly subjective or objective-subjective. In R. v. M.D., 2008 BCCA 538, Madam Justice Prowse for the Court of Appeal summarized Kerr and held the correct thecorrect statement of the law was that adopted by Fish J, from R. v. Nelson, (ON CA) at paragraph 116: The subjective purpose of the accused, as testified to by him, is a factor, but only one of the factors, which must be considered by thetrial Judge in deciding [what] was the “purpose of the possession”.

A final conclusion as to what that purpose was is to be arrived at after considering all of the relevant circumstances of the case, includingthe nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that possession,and the use to which he actually put it, if that sheds light on what his purpose was in originally having it. [122] In this case, Mr. Iverson armed himself with a baseball bat. It was around midnight. He took the bat out of the security of hishome into the A & W parking lot to confront some people he suspected of drug trafficking.

They posed no threat to him at the time. Unlike Mr. Kerr, Mr. Iverson did not arm himself with the bat to stave off a specific and unavoidable threat. His possession of theweapon was for a more generic purpose of deterring them. Mr. Iverson said he did not know if they would pull a knife or a gun. Heneeded to show he meant business. He took the baseball bat as an “intimidating factor.” According to Mr. Magante and Mr. Edger,whose evidence I accept, Mr. Iverson was holding the bat slightly above his head in an aggressive and threatening manner. He used it tohit Mr.

Edgar’s car and frighten the complainants. [123] I find that viewed on either the subjective or subjective-objective standard, the purpose for which Mr. Iverson possessed thebaseball bat at the time of the confrontation with the complainants was one dangerous to the public peace. Viewed subjectively, Mr.Iverson intended to “intimidate” and thus frighten the people he saw in the A & W parking lot into leaving. He did not own the A & Wnor was there any suggestion he was authorized by its lawful owners to protect that property from criminal activity. He had no reason tobelieve they were trespassing on his property.

Mr. Iverson was not a peace officer. He had no evidence of criminal behaviour beyondhis bald assumption the complainants were drug dealers. He did not observe them in the act of committing a crime. He did not ask thepolice to intervene. He was not there to make a citizen’s arrest for an ongoing criminal offence he himself had witnessed. He had nointention of detaining the complainants until the police arrived. He was trying to get them to leave. Count 3: mischief to property [124] Mr. Iverson is also charged with mischief.

Section 430 of the Code defines the offence of mischief which states: Mischief 430.

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. [125] What constitutes wilfulness for the purposes of s. 430 is defined in s. 429(1): 429(1) Every one who causes the occurrence of an event by doing

an act … knowing that the act … will probably cause the occurrenceof the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have causedthe occurrence of the event. [126] The actus reus of mischief to property pursuant to s. 430(1)(

a) of the Code (the wilful destruction or damage to property) iscomplete when one damages property. It is an offence of general intent. R. v. Toma 2000 BCCA 494 . The mens rea “requiresproof of no more than an intentional or reckless causing of the actus reus at paragraph 7. [127] In this case, I find that Mr. Iverson deliberately hit Mr. Edgar’s vehicle with a baseball bat and the damage was a 1½ inch dentwhich Mr. Edgar had repaired. Mr. Magante saw the incident; Mr. Edgar heard the incident and shortly thereafter discovered thedamage. Mr.

Iverson admitted the incident to Constable Rumming and never recanted or contradicted that admission at trial. Mr. Edgarwas unsure of the total cost to repair the dent because it was paid by his insurer. He was certain, however, that he paid $300 deductibleon his insurance for the repair. Count 4: uttering threats to cause death or bodily harm [128]

Section 264.1 of the Criminal Codes states: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; [129] The Supreme Court has considered this offence in R. v. McRae, 2013 SCC 68 , R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, and R. v. O'Brien, 2013 SCC 2 , [2013]1 S.C.R. 7. [130] The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or serious bodily harm (Clemente,

at p. 763), and (2) an intent to threaten. In McRae, at paragraph 10, the Supreme Court said “The threats can be uttered, conveyed, or inany way caused to be received by any person.” Whether words, spoken or written, constitute a threat must be looked at objectively; thatis, as it would be by the ordinary reasonable person. [131] In this case, the Crown charged Mr. Iverson in Count 4 with “uttering threats to Alexander Lanouece and Marlowe Magante tocause death or bodily harm”. No mention is made of “in any manner” or “conveys or causes any person to receive a threat”. There wasno evidence before me of Mr.

Iverson verbally articulating a threat to cause any of the complainants death or bodily harm. There isample evidence of Mr. Iverson gesturing a threat in the manner he was handling the baseball bat. I asked counsel for submissions onwhether these actions satisfied the definition of “uttering” a threat. [132] In his August 3, 2016 submissions, Crown counsel acknowledged that when it charges an accused with an offence, andparticularizes the way the offence was committed, it must prove the offence as particularized in the charge: R. v. Saunders, (SCC). This principle is one of fairness.

The accused is entitled to be reasonably informed of the charge against him in order tomake a full answer and defence at trial. [133] The Crown provided a decision from the Ontario Superior Court in R. v. Dumoulin [2000] O.J. No. 3615, which supports theproposition that when the charge is restricted to as it in this case to “utters” then the threat must be spoken or vocalized. I note Dumoulinrelies on Clemente. The Crown further acknowledges that no witness testified to Mr. Iverson saying to Mr. Magante or Mr. Lanouecethat he was going to kill or injure them.

The Crown properly conceded the Court ought to acquit Mr. Iverson of the charge in Count 4 ofInformation 41922-01. Count 5: obstructing a peace officer [134]

Section 129(

a) of the Criminal Code reads as follows: 129 Every one who (

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

d) an indictable offence and liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. [135] To make out the offence charged by Count 5, the Crown must prove the actus reus namely, (

a) there was an obstruction, (

b) to apeace officer; (

c) who was engaged the execution of his duty, and the mens rea: (

c) Mr. Iverson’s obstruction was wilful: R. v. Blackwell,2007 BCSC 1240, as cited in R. v. Glowach, 2011 BCSC 241 . [136] In this case, when Constable Rumming told Mr. Iverson he was under arrest, Mr. Iverson says he backed up and said, “no, no,no; you can’t do that, I have my son there. The next thing you know, there are four of them standing in my doorway. All I said is no,please don’t.” Constable Rumming said when he told Mr. Iverson he was under arrest, Mr. Iverson said, “No, I’m not,” and backedaway. Later, in cross-examination, Constable Rumming said Mr.

Iverson turned around and went back into his residence. ConstableRumming’s evidence about Mr. Iverson was corroborated by Constable Mogg. [137] There is no question Constables Rumming and Farwell were peace officers who were engaged in the execution of their duty atthe time of the incident. In this regard two of the three elements of the actus reus of obstruction is satisfied. I accept Mr. Iverson’sconduct alarmed the police officers sufficiently for them to use physical force to restrain him. If Mr.

Iverson turned around and headedback into his house after been told he was under arrest, that is conduct which could constitute obstruction. [138] I find there was only three peace officers who attended at Mr. Iverson’s residence. With that exception, if I accept Mr. Iverson’sevidence as to what happened, the third element of the actus reus of obstruction is far less certain. [139] The Crown’s evidence on the mens rea or mental element of obstruction is also far from clear. [140] The altercation between Mr. Iverson and the police officers happened very quickly.

Constable Rumming described “a bit of atussle,” which Mr. Iverson gave up immediately.” After arresting and escorting him to the police vehicle, Constable Rumming told Mr.Iverson he was under arrest for assault with a weapon and mischief. Constable Rumming made no mention of obstruction. ConstableRumming removed Mr. Iverson’s handcuffs in the police vehicle and released him at the scene on an Undertaking and Promise toAppear. Constable Rumming did not consider Mr. Iverson a danger to himself or others. These actions on the part of the investigatingofficer suggest to me the officer did not consider Mr.

Iverson’s actions sufficiently serious to transport him to the detachment. [141] I am not persuaded the Crown has proven beyond a reasonable doubt that Mr. Iverson obstructed or intended to obstruct theofficers. I would think that when confronted with the three officers at his door in the early hours of the morning, taking a step back mayhave been a natural reaction. Application of R. v. W.(D.), (SCC), [1991] 1 SCR 742. [142] As set out above, I do not accept that Mr. Iverson’s evidence that when he went to A & W at the material time that: (

a) he wasnot angry; (

b) Mr. Magante recognized him and greeted him by name; (

c) he did not chest bump Mr. Magante: (

d) he did not kick Mr.Magante; (

e) he apologized and shook Mr. Magante’s hand before leaving.

[ 143 ] Where their evidence conflicts, I accept Mr. Magante and Mr. Edgar’s evidence and reject Mr. Iverson’s evidence. There is nothing in the evidence offered by the Defence which causes me to have a reasonable doubt as to Mr. Iverson’s guilt as to Counts 1, 2 and 3 on Information 41922-01, namely, the assault of Mr. Magante, possession of a weapon for a dangerous purpose and mischief. [ 144 ] I satisfied of Mr. Iverson’s guilt with respect to Counts 1, 2 and 3 beyond a reasonable doubt based on the evidence I do accept. [ 145 ] As to Count 4, Mr.

Iverson denies threatening any of the complainants and no witness testified he had uttered verbal threats to cause Alexander Lanouece or Marlowe Magante injury or bodily harm. Therefore, I must acquit Mr. Iverson of the offence of uttering threats as set out in Count 4. [ 146 ] As to Count 5, I do not know whose version is accurate, and therefore I have a reasonable doubt as to Mr. Iverson’s guilt with respect to Count 5. Disposition [ 147 ] Mr. Iverson: a. With respect to Count 1 charging you with assaulting Marlowe Magante, contrary to s. 266 of the Criminal Code , I find you guilty; b.

With respect to Count 2, charging you with possessing a weapon, namely a bat, for a purpose dangerous to the public peace or for the purposes of committing an offence, contrary to s. 88(1) of the Criminal Code , I find you guilty; c. With respect to Count 3, charging you with committing mischief to property of a value not exceeding $5000, namely Roy Edgar’s car, contrary to s. 430(4) of the Criminal Code ; I find you guilty; d.

With respect to Count 4: charging you with uttering threats to Alexander Lanouece and Marlowe Magante to cause death or bodily harm contrary to s. 264.1 of the Criminal Code ; I find you not guilty; and e. With respect to Count 5, charging you with obstructing peace officers, Constable Rumming and Constable Farwell in the execution of their police officer duties, contrary to s. 129 (

a) of the Criminal Code , I find you not guilty. The Honourable Judge J.T. Doulis