Her Majesty the Queen - v. -, 2014 SKPC 044

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 044 Date: February 20, 2014 Information: 24481285 Location: Montreal Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Glance S. Henderson Appearing: John Syrnick For the Crown Self For the Accused DECISION H. M. HARRADENCE , J INTRODUCTION: [ 1 ] Glance Henderson is charged with the criminal offence of obstruction as follows: On or about the 12 th day of November, A.D. 2012 at Montreal Lake in the Province of Saskatchewan did wilfully obstruct, Cst.

Srdjan Bunjevac a Peace Officer engaged in the lawful execution of his duty by walking and pulling away, contrary to

section 129 (

a) of the Criminal Code of Canada.

FACTS: [ 2 ] The facts are not in dispute. Cst. Bunjevac was the only witness to testify at this trial (the accused chose not to testify or call any evidence). Cst. Bunjevac, a member of the Royal Canadian Mounted Police, stationed at Montreal Lake Cree Nation, testified that on November 12, 2012 he stopped a vehicle which was operated by this accused. The vehicle stop occurred on Highway 969 in the vicinity of the community of Montreal Lake. Cst. Bunjevac stated that he knew the identity of the accused.

He also knew where the accused lived in Montreal Lake, only a short distance from where the vehicle stop had occurred. [ 3 ] Cst. Bunjevac indicated in his evidence that he stopped the accused on November 12, 2012 because he knew the accused did not have a valid driver’s licence. Cst. Bunjevac knew the accused had a Class 7 learner’s licence. In fact, Cst. Bunjevac had stopped this accused a week earlier and given him a warning in relation to the offence of operating a motor vehicle without a valid driver’s licence. On November 12, 2012, Cst.

Bunjevac’s intention in stopping the accused was to give him a ticket under The Traffic Safety Act for this offence. [ 4 ] Cst. Bunjevac indicated to the accused that he was going to give him a ticket. The accused immediately became very belligerent, got out of his car and started to walk towards his residence. The accused was using profane language and telling Cst. Bunjevac he was going to fight the ticket in Court. Cst.

Bunjevac describes this incident in his evidence as follows: Well, as he was walking away from the vehicle, I asked him to return to it because I told him that he was obstructed -- obstruction of me doing -- executing my duty. And I approached him, I told him just go back to your vehicle. I motioned toward it, just go back to your vehicle, I’ll give you a ticket, the vehicle is going to be brought back to your place. And he said, “F” you, forget this, and I advised him he was under arrest for obstruction because he was obstructing me from execution of my lawful duty.

And at that point, I placed my hand on his shoulder, he pulled away, and then I grabbed a firmer grip of his arm and I handcuffed him. At that point he became physically cooperative but not -- not so pleasant to speak to. THE LAW: [ 5 ] There is no dispute that Cst. Bunjevac had the authority to stop the accused’s motor vehicle.

Section 209.1 states as follows: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signaled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of a peace officer pursuant to subsection (2). [ 6 ] Cst. Bunjevac further believed that the accused did not have a valid driver’s licence and therefore was operating a motor vehicle contrary to

section 32 of The Traffic Safety Act . Given the accused’s conduct, Cst. Bunjevac may have had a basis to arrest the accused if he believed the accused would not appear in Court to answer a summons.

Section 276 of The Traffic Safety Act indicates as follows: 276(1) If a peace officer finds a person contravening

section 32, 57, 140, 209.1, 213 or 239, the peace officer may arrest that person, if the officer has reasonable grounds to believe that the person will not appear in court to answer a summons.

(2) A peace officer who has arrested a person in accordance with this

section shall, with reasonable diligence, take the person so arrested before a court of competent jurisdiction so that the arrested person may be dealt with according to law. [ 7 ] There was no evidence that Cst. Bunjevac believed that Mr. Henderson would fail to appear in Court. [ 8 ] Cst. Bunjevac did not address his mind to the authority given to him in

section 276, rather he chose to arrest the accused for obstruction. Importantly, Cst. Bunjevac chose to arrest the accused for obstruction solely because the accused walked away. Cst. Bunjevac initially said in his evidence the following: A So when I drove up, and I seen him driving again, I activated the emergency lights. He was coming towards me, so I just kind of - -he saw the lights and he stopped immediately. I pulled over to the right side of the road on Bird. I approached. He rolled his -- Q But on this occasion, he’s alone, is he? A No, he’s with his wife and his child. Q Okay. I’m sorry, (inaudible).

A I approached the window. I advised him the reason for the stop. I told him that he shouldn’t be driving without a supervising -- I guess, somebody supervising, since he’s only got Class 7. He immediately became belligerent and verbally abusive. Q What was he saying? (Inaudible). A Well, it was pretty profane. It was a couple “F” words directed at me. He said them along the lines that I should be getting the big fish, and he’ll continue driving the way he is now until I get all the drunks off the road, and all the big guys put away.

He also said something along the lines that I’d better watch out, he’s going to talk to the chief and have my job. I advised him that he would be getting a ticket, at which point he became more agitated. He stepped out of the vehicle, saying that his -- Q Did you ask him to step out of the vehicle or -- A No, he stepped on his own. I asked him to remain inside the vehicle. He refused. He said something along the lines, this is B.S. I can’t believe you’re doing this to me, me and my wife and my -- me and my common-law and my child. And he started to walk away. I warned him to return to the vehicle.

He refused to do so. Q Well, had you told him why you were stopping him? Was he under arrest at the time? A No, he was not at that time. Q (Inaudible) up to that point? A Well, I just advised him that he was being stopped because he was failing to comply with his licence endorsement, and that he’d be getting a ticket. Q Okay. A At which point he became belligerent, and exited the vehicle and started walking away from the vehicle towards the subdivision on Bird Avenue. Q Okay. A I asked him to return to his vehicle.

He refused to do so, and at that point I advised him he was under arrest for obstruction, and as I approached, I advised him he was under arrest. I put my hand on him. He pulled away. At that point, I handcuffed him, placed him in the back of the vehicle, and I jumped in the front seat of the vehicle. [ 9 ] Mr. Syrnick then specifically asked Cst. Bunjevac about the obstruction: Q Now, regarding the obstruction, how did he obstruct you? What was your concern; what happened?

A Well, initially, I was just going to serve him a regular -- a SOTI, a provincial ticket under The Traffic Safety Act , and that was going to be it. I was going to get a fully licenced driver to return the vehicle to his residence, but he just -- Q Well, what did he do that caused you (inaudible)? A Well, he walked away while I was trying to serve him a ticket, and then explained to him what was going to happen, he just walked away and said the words I don’t really want to – the Court doesn’t need to hear, but -- [ 10 ] The accused was not asked to identify himself or provide his address.

Indeed, as indicated, Cst. Bunjevac knew his identity

and knew where he lived. In the classic case of R. v. Moore, , a police officer observed the accused ride his bicyclethrough a red light. The accused refused to identify himself. The officer charged the accused with obstruction for failing to provide hisname. Justice Spence, writing for the majority of the Supreme Court stated: I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accedeto the constable’s request for his identification he was obstructing that constable in the performance of his duties.

As did the members ofthe Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constableon duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest theaccused for such offence unless and until he had attempted to identify the accused so that he might be the subject of

summary convictionproceedings. [11] Justice Dickson, as he then was, in a strongly worded dissent states: A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act. Omissionto act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute… [12] Justice Gerein in R. v.

Abrey, 2000 SKQB 240, in considering a charge of obstruction based on an accused’s failure to emptyhis pockets at the direction of a police officer said “An omission in itself normally does not constitute an obstruction. It must be anomission to do something which one is legally obliged to do.” [13] In my view, Cst. Bunjevac did not have the authority to arrest the accused for obstruction simply because the accused chosenot to remain at the scene of the traffic stop to receive his ticket. As indicated, Cst. Bunjevac knew the identity of the accused and knewwhere he lived. Cst.

Bunjevac did not testify that he believed the accused would not attend Court. In these circumstances Cst. Bunjevacwas not acting in the execution of his duty when he asked the accused to return to his vehicle and was not entitled to arrest him forobstruction. [14] As well, there was no evidence that the actions of Mr. Henderson obstructed Cst. Bunjevac. In answer to the question, “Howdid he obstruct you”, Cst. Bunjevac seemed to say that there would only have been a ticket, but he had to lay a new charge and arrest himdue to the accused’s failure to follow his directions. In other words, Cst.

Bunjevac could not articulate in what way he was actuallyobstructed in the execution of his duty. Police cannot use the obstruction

section of the Criminal Code to create an arrest power wherenone otherwise exists. CONCLUSION: [15] The Crown bares the onus of proof beyond a reasonable of each of the essential elements of this charge. One of the essentialelements is that Cst. Bunjevac was in the lawful execution of his duty. I have found on these particular facts that Cst. Bunjevac was notacting in the execution of his duty when he asked the accused to return to his vehicle. I am not satisfied that the Crown has proven thecharge of obstruction beyond a reasonable doubt.

Glance Henderson is found not guilty. [16] Dated this 20th day of February, A.D. 2014, at Montreal Lake, in the Province of Saskatchewan. __________________________ H. M. Harradence, J