Her Majesty the Queen - v. -, 2014 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 024 Date: March 3, 2014 Information: 40691967 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.M.M.C. Appearing: Mr. Rob Parker For the Crown Ms. Colleen Colvert For the Accused JUDGMENT M. GORDON , J [ 1 ] M.M.M.C. is charged that on or about the 18 th day of April A.D. 2013 at or near Moose Jaw, Saskatchewan did wilfully obstruct Cpl. Rick Johns, a peace officer, engaged in the lawful execution of his duty, by physically blocking him with her body contrary to s. 129 (

a) of the Criminal Code .

SUMMARY OF EVIDENCE

[ 2 ] Corporal Rick Johns (now Sergeant Johns) and Cst. McNaughton were asked to attend the C. residence at N[...] in Moose Jaw on the day in question. Cpl. Johns had received information from Cst. Flanagan, the investigating officer, to attend at the residence and arrest T.C.. T.C. is the accused’s son who was 14 years of age at the time. Cpl. Johns was advised there was an arrest warrant in effect for this youth. The police officer also knew that M.C. had a history of being uncooperative with the police.

The officers knocked at the door of the residence and were met by a woman whom they later found out was S.A.. Cpl. Johns asked if M.M.M.C. and T.C. were at home and asked if they could come in. Both officers were invited into the home and according to Cpl. Johns they were in the living room area or entrance to the living room, depending on how one describes the area. [ 3 ] There were a couple of large dogs barking and S.A. and T.C. were trying to get the dogs under control. Noises were heard upstairs and then the accused came down the stairs.

Officer Johns informed M.M.M.C. that he had an arrest warrant for T.C. for possession of stolen property. The accused immediately became upset and angry. She was swearing and told the officer “you are going to have to do better than that”. She demanded to see the arrest warrant. Officer Johns tried to explain to her that he was not the investigating officer and that he had an obligation to execute the warrant. At this point the accused demanded the police to get out. [ 4 ] T.C. was standing just behind his mother and to the side. Cpl. Johns tried to get around M.M.M.C. to reach T.C.. Cpl.

Johns warned the accused that if she obstructed him, she could be arrested. At that point Cpl. Johns testified that M.M.M.C. blocked him from going around. She put her right arm out and told T.C. to run. Cpl. Johns placed M.M.M.C. under arrest at this point and Cst. McNaughton arrested T.C.. Both were cooperative when the handcuffs were placed on them and both were taken to the police station in separate vehicles. [ 5 ] Cst. McNaughton was also dispatched to this house as it is the area of the city he is responsible for and Cpl. Johns at the time was his immediate supervisor.

His evidence is similar to that of Cpl. Johns. He certainly corroborated that the conversation with the accused quickly escalated and that the accused told the officers to get out of the house when they could not provide any further details of the investigation against T.C.. The accused told the officers that they should not be in her home and they were not welcome. [ 6 ] T.C. had looked after the dogs and was in the hallway near the kitchen, behind his mother. Cpl. Johns took a step towards T.C. to effect the arrest and Cst. McNaughton observed M.M.M.C. position herself in-between Officer Johns and T.C..

It was at this point that Cpl. Johns warned the accused that if she continued to do this she would be charged with obstruction. It was at this point Cst. McNaughton testified that the accused raised her left arm to try to block the officer and pushed T.C. with her right arm and said “run”. Cpl. Johns was able to grab the accused and place her under arrest. [ 7 ] Both officers were in working uniform. Both officers had radios with them but felt they did not need to have any further information about the investigation. Both officers testified that this all happened very quickly in a small hallway area in the home.

The times the officers recorded vary by a couple of minutes which is likely accounted for by using their own watches. In any event, the actual incident took approximately three to five minutes. [ 8 ] M.C. testified that she had been sleeping and woke up on the morning of April 18 to dogs barking and two police officers standing in her entrance area. She came downstairs and asked them what they were doing there as T.C., her son, was usually not the one in trouble. When she was told about the arrest warrant, she was upset that they could not provide any further details.

She testified that she called T.C. and asked if he knew about this incident and he did not. She said that Cpl. Johns had already warned her that he was there to arrest T.C. and he threatened her if she interfered with the arrest. It was at this time she testified the officer pushed her and she stumbled and fell backwards. She did admit to yelling but said she was only asking questions. She said that Cpl. Johns just pushed by her to grab T.C. and she just put her arms out and fell against the stairway.

She denies she told T.C. to run. [ 9 ] In cross-examination she admitted that she did want more details and that T.C. was behind her, to her right and again she reiterated her version of events that the officer pushed her out of the way and she lost her balance. [ 10 ] T.C. testified saying that he was getting ready for school and heard the doorbell ringing. The dogs were barking upstairs, so he went to retrieve them and was trying to put them in their kennel in the basement. When he came upon the scene on the main floor, his mother was there talking to the police officers and asking why they were there.

He stated his mom was arguing with the police and then he saw the police officer push his mom aside and then saw the officer arresting his mom. One of the officers also arrested him. T.C. stated he was never told he was under arrest or that they had a warrant. He admitted that the officer didn’t say anything in a rude way and that his mother was kind of upset because they wouldn’t tell her what was happening.

[11] The issue is simply whether the Crown has proved beyond a reasonable doubt the constituent elements of this offence under s.129(

a) of the Criminal Code. The defence submits that I should accept the defence evidence and find that the police officer pushed bythe accused to effect the arrest of T.C. and that the accused did not do anything intentionally to obstruct the peace officer. THE LAW [12]

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 (

e) an offence punishable on

summary conviction. [13]

Section 29 reads as follows: 29.

(1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce itwhen requested to do so.

(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasibleto do so, of (

a) the process or warrant under which he makes the arrest; or (

b) the reason for the arrest.

(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person whomakes an arrest, or those who assist them, of protection from criminal responsibility. ISSUE [14] The first issue is whether the police officers were required to have the original arrest warrant for T.C. with them at the timethey affected the arrest? This has been considered in many cases starting with R. v. Gamracy, (SCC), 1974 S.C.R. 640.

The majority of the Court held that when the officer had reasonable and proper grounds to believe that a warrant was in force for thearrest of a person, that the duty of the arresting officer was fully discharged by telling the arrested person the reason for his arrest. TheCourt held it was not part of the officer’s duty to obtain the warrant to show to the accused or to ascertain its content. [15] Section 29(2)(

b) is complied with if the officer advises the person to be arrested of the reason for the arrest. Mr. JusticeRitchie speaking for the majority at page 5 of the decision states: It will be seen that in the result I agree with Chief Justice Gale when he said, in the course of the reasons for judgment which he renderedon behalf of the Court of Appeal: Here the police officer did not have a warrant with him; therefore, he was making the arrest without a warrant.

But he was making thearrest pursuant to a warrant which was then outstanding and valid; and therefore, upon being asked the reason for the arrest, he gavenotice to the respondent that the arrest was being made by virtue of that warrant. That is sufficient compliance with the provisions of s.29(2).

[ 16 ] Defence counsel relying on the minority decision in R. v. Gamracy , supra , referred to the case of R. v. Wrightman , 2004 ONCJ 210 . At page 4 of that decision, the trial judge holds that s. 10(

a) of the Charter requires the individual be advised of the charge for which the warrant was issued. Therefore the trial judge in Wrightman at the Ontario Court of Justice concludes: Finding that this obligation exists, I am also mindful that, in some circumstances, it may not be practical or feasible to advise the person to be arrested on the warrant of the charge for which the warrant was issued. [ 17 ] The Wrightman case also refers to R. v. Evans , 1991 S.C.R. 869, in which the Supreme Court of Canada found that the requirements of s. 10(

a) of the Charter have been met. At paragraph 35 the Court stated: When considering whether there has been a breach of s. 10(

a) of the Charter , the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, must govern. What the accused was told, viewed reasonably in all the circumstances of the case, must be sufficient to permit him to make a reasonable decision to decline to submit to arrest or, alternatively, to undermine his right to counsel under s. 10(b). [ 18 ] That was a case of a youth of subnormal mental capacity who was arrested on a marihuana charge and then questioned about two murders.

The Court found the police advised the accused that they were investigating another more serious charge and the accused understood this charge in the investigation. The case involves a more detailed consideration of s. 10(

b) and concludes that there was a s. 10(

b) violation and the accused’s appeal was allowed and an acquittal entered. [ 19 ] The defence relies on a minority decision in the Wrightman case and suggests it overrules R. v. Gamracy , because it is a post- Charter case. I do not accept the defence submission that there was a breach under s. 10(

a) of the Charter . First of all there was no Charter notice given by M.M.M.C.’s counsel. However that is not determinative of the issue. The accused in these proceedings is the mother of the individual named in the warrant. In my view she lacks standing to bring this application as it was not her Charter rights that were involved. The case of R. v. Edwards , [1996] 1 S.C.R. 196 , clearly states that s. 8 is a personal right.

Section 10(

a) reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; [ 20 ] The subject of the warrant T.C., according to the evidence, was not objecting or resisting. By all accounts T.C. was cooperative. He was dealing with the dogs and trying to put them in their kennel in the basement. T.C. who is now 15, testified that it was his mother, the accused, who was arguing and was kind of upset. He admitted the police officer was not rude. He says he actually moved closer to his mom rather than trying to get away. [ 21 ] The officers were invited into the home after their knock. Cpl.

Johns clearly stated on more than one occasion that there was a warrant for the arrest of T.C. and when questioned further, he said that while he was not the investigating officer, he understood it was for possession of stolen property. Therefore I find that Cpl. Johns was in the lawful execution of his duty. I might add in more practical terms, it would be unwieldily and unworkable for police officers to have the original warrants with them in the course of their duties. [ 22 ] The second issue is whether on the evidence the Crown has proven beyond a reasonable doubt the elements of obstruction.

The account of the officers differs from the defence. [ 23 ] The officers testified that M.M.M.C. demanded to know more details and told the officers to leave. She was visibly upset. She was loud and aggressive. She was warned by the officers that she could be charged with obstruction when she told her son to run. I accept the officers’ testimony that the accused was quickly becoming upset and that the exchange escalated quickly. It is evident that as soon as M.M.M.C. was aware the police were inside her house to arrest her son, she made demands of them.

Initially M.M.M.C. wanted more information about the charge against her son. This was a lawful request. However, when she did not get the information she wanted, she quickly became more aggressive. When the police refused to leave, the accused positioned herself in such a way as to prevent Cpl. Johns from entering further and arresting T.C.. As I have said, T.C. had stepped closer to his mother. Cst. McNaughton

described the accused positioning herself between T.C. and Cpl. Johns. She raised her left arm and pushed T.C. with her right and toldhim to run. Cpl. Johns testified he was aware that the accused had a history of not cooperating with the police. I have no difficultyaccepting the evidence of the police officers that M.M.M.C. tried to prevent and hinder access to T.C.. I do not believe M.M.M.C.’sdescription of events. In addition, I note that there were two large barking dogs that T.C. and S.A. were trying to control and T.C. hadtaken the dogs to the basement.

It is reasonable to infer that the last thing the police would want is to inflame or escalate the situation. [24] M.M.M.C. has a different account. She was surprised that there was a warrant for T.C.’s arrest. He was usually not introuble. She asked for particulars and admitted telling the police officer to leave. She claims that she asked T.C. about this warrant andhe knew nothing. However, T.C. does not mention this. Her evidence is that Cpl. Johns pushed by her to grab T.C. and she stumbledbackwards. As a result, she put her arms out and fell against the stairway.

This all occurred in a small hallway area in the space of acouple of minutes. [25] The principles stated in the well-known case of R. v. W.D., [1991] 63 C.C.C. (3d) 379 (S.C.C.) must be considered. In R. v.B.D., 2011 ONCA 51, Blair J.A. stated at paragraph 96: As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories ofevidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless thatfact or item is an element of the offence or an element of a defence.

Different considerations arise, however, when conflicting evidence ispresented to the jury on an essential element and the jury is required to make credibility findings with respect to that conflictingevidence. [26] There has been much litigation on the application or misapplication in some cases by trial judges of the steps enunciated in R.v. W.D. Recent cases however have elaborated and provide guidance on the proper

interpretation of W.D. It is clear that the Court mustlook at the evidence as a whole. In R. v. Vuradin, 2013 SCC 38, the Court describes the proper approach at paragraph 21: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt aboutthe guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential aslong as the principle of reasonable doubt remains the central consideration.

A verdict of guilt must not be based on a choice between theaccused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2 , 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v. Boucher, 2005 SCC 72, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29. [27] At paragraph 27, the Court went on further to elaborate: In the result, the trial judge rejected the appellant’s testimony.

In Boucher, Charron J. (dissenting in part) stated that when a trial judgerejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind”(para. 59). Similarly, in R.E.M., McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’sdenial of the charges failed to raise a reasonable doubt” (para. 66). [28] The evidence I accept is that the accused on being told there was an outstanding warrant for her son T.C. quickly becamedisagreeable, demanding and uncooperative.

Her response to being advised there was a warrant for T.C. for possession of stolenproperty was “you are going to do better than that”. Cst. McNaughton testified that the exchange escalated quickly. There was yelling. The accused told the officers to leave. Both police officers describe how the accused positioned herself and attempted to block theofficers’ access to her son. Cst. McNaughton specifically notes he did not see the accused stumble. [29] M.M.M.C. asks us to believe that Cpl. Johns pushed by her to grab T.C. and she stumbled and her arms went out as she fellbackwards. I do not accept this.

This is a rationalization in my view of what really occurred. It is clear M.M.M.C. wanted the police toleave. She was not pleased the officers were there and her anger was evident from the start. This could clearly be seen as she testified aswell. [30] T.C. also recalls that this happened very quickly and also recalls his mother being upset and arguing with the officers. Again

he said the officers did not say anything in a rude way. He admits he cannot recall everything of the incident. He was just finishingbreakfast and getting ready for school and when the police came trying to get the dogs under control. To his credit, T.C. did not run. Heactually moved closer to his mother and says he saw the officer push by his mother. T.C.’s evidence does not assist the defence. It isclear he was not resisting. Therefore when I look at the totality of the evidence, I am satisfied that the Crown has proved the essentialelements of the offence. [31] In R. v. Johnson, 41 Sask.

R. 204 (Q.B.), Gerein J. refers to the Ontario Court of Appeal decision of R. v. Tortalano et al,[1976] 28 C.C.C. (2d) 532, which defines obstructing for this purpose as making it more difficult for the police to carry out their duties. The Crown must prove the essential elements of this charge beyond a reasonable doubt. In R. v. L.S.L., (SK KB), 89Sask.

R. 267 (Q.B.), Baynton J. stated that three elements of the offence of obstruction must be established before the offence of“obstruction” is made out: (1) did the conduct obstruct the police officer; (2) was the obstruction wilful; and (3) did the conduct obstruct the police officer in the execution of his duty? [32] This is not a case where the accused did nothing. Case law clearly holds it is the purpose of the wilful obstruction, not itsresult that goes to the offence and the fact that the accused did not prevent the officers from executing their duty is not a defence.

Therefore, in all of the circumstances I find the Crown has proved the essential elements of the obstruction charge under s. 129(

a) of theCriminal Code. The accused is guilty as charged. M. Gordon, J