Her Majesty the Queen - v. -, 2011 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 019 Date: January 27, 2011 Information: 44025627 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler James Hansen Appearing: C. Scott For the Crown K. Hodgson-Smith For the Accused JUDGMENT S. D. LOEWEN, J I. INTRODUCTION [ 1 ] The accused, Tyler James Hansen, is facing a number of charges outlined in a single information. [ 2 ] The charges against the accused allege that, on or about June 20, 2010, at or near Prince Albert, Saskatchewan, he did:

Count #1 – wound, maim, disfigure, or endanger the life of Chris Hujber, thereby committing an aggravated assault, contrary to section 268(1) of the Criminal Code . Count #2 – unlawfully assault Cst. Chris Hujber, a peace officer engaged in the lawful execution of his duty contrary to section 270(1) (

a) of the Criminal Code . Count #3 – commit an assault on Pamela Hujber, contrary to

section 266 of the Criminal Code . Count #4 – being at large on his undertaking entered into before a justice or a judge and being bound to comply with a condition thereof, to wit, shall keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code .

Count #5 – being at large on his undertaking entered into before a justice or a judge and being bound to comply with a condition thereof, to wit, shall abide by a curfew at your residence and be in that residence between the hours of 11:00 p.m. and 7:00 a.m. daily and present yourself in person to any peace officer checking your curfew, except as required for work purpose, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code .

Count #6 – being at large on his undertaking entered into before a justice or a judge and being bound to comply with a condition thereof, to wit, shall abstain completely from the possession and consumption of beverage alcohol within the meaning of The Alcohol And Gaming Regulations Act of Saskatchewan, not be in any premise the primary purpose of which is the sale and consumption of beverage alcohol, not be in any private residence where beverage alcohol is consumed and not attend any community event at which beverage alcohol is served, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . [ 3 ] Prior to trial the accused pled guilty to counts 5 and 6 in the information, being a curfew breach and an alcohol abstention breach on his undertaking.

At the argument stage of this trial, the Crown indicated they were not seeking a conviction on the count related to the alleged assault on Pam Hubjer, and that is appropriate, given the evidence I heard. [ 4 ] That leaves for consideration counts 1, 2 and 4. II. FACTS [ 5 ] On the date in question there was a gathering at 126 – 21 st Street East, Prince Albert, Saskatchewan hosted by Gerry Tolentino and Claudette Natomagan, long term common law spouses. They had a karaoke night and about 15 people had gathered for that purpose.

There was alcohol served at the party and both Gerry and Claudette were, to some extent, under the influence, so to speak. [ 6 ] Some time after 1:00 a.m. the accused attended at the party with his girlfriend.

Apparently he came to get keys from his brother Blaine, who was a guest in the home, and the purpose of obtaining the keys was so that the accused could go back to Blaine’s home as he was staying there overnight. [ 7 ] There was evidently a significant argument between the accused and his girlfriend, and their stay at this party was cut short and they were asked to leave and both of them left, together with Blaine. The exact reason for them leaving, or the circumstances under which they left was unclear, however, it was apparent they were told to leave.

While they were leaving the residence it is evident that they were unhappy and the argument that was going on when they arrived continued out onto the street. [ 8 ] The argument between the two was something that attracted the attention of Mr. Tolentino who was in the back yard of his home having a cigarette, and also attracted the attention of their neighbours who lived across the street. The neighbours were the complainants in this matter, Chris Hujber, and his wife, Pam Hujber. Coincidentally they had just returned from a pub night and were walking up beside their house when they heard the argument.

Chris Hujber was an off duty R.C.M.P. officer, not in uniform. When the argument was heard, they both noticed it, however, they entered their own home when they first arrived.

[ 9 ] The argument continued until the three people entered the vehicle in question. Hujber and his wife were inside their house and then witnessed what was described as a “stunt”. The stunt was quite significant in that it involved what is referred to as a “brake torque”.

This occurs when an engine is placed into gear, revved at a high rate with the brakes on, which keeps the vehicle in its place, yet allows the drive wheels to turn, thus creating a loud squealing noise and significant amounts of smoke from the squealing tires. [ 10 ] At this point Chris Hujber indicated that he left his home to go outside and tell the driver to, in his words, “grab a brain”. It is evident from him saying that that he was obviously upset and wanted to intervene to prevent this obvious breach of the peace.

He also suspected alcohol use by the driver of the vehicle in question. [ 11 ] He went to the front passenger window of the van which was in front of his house facing from his left to his right. He indicated that he pounded once on the window but got no response from the occupants. He felt it was unsafe to go either past the front of the vehicle in question or the back, because of the way the stunting. [ 12 ] He pounded on the window a second time and after that occurred apparently the brake torque stopped.

The passenger, being the accused in this case, then opened the passenger door saying words to the effect “so you think you’re tough”, and came, in Chris Hujber’s words, flying at him swinging his arms and fists, attempting to hit him in the face. [ 13 ] The complainant handled the Defendant quite well at first and was holding him off by his shoulders. The accused was swinging wildly at him, something that Hujber indicated shocked him, however no significant blows were landed. At some point during this initial altercation, Hujber fell and indicated that he could not get up.

At that point the accused got on top of Hujber and started pummeling him with his fists. [ 14 ] Hujber indicated that he was struck approximately ten times, at least five times on his face, as a result of which he received, among other injuries, a broken nose. [ 15 ] What resulted from the fall as he was trying to control Hansen was apparently that his ankle broke.

Both the ankle injury and the broken nose were subject to comment of a medical report that was filed as Exhibit P1 by consent. [ 16 ] Towards the end of this assault, Claudette Natomagan attended the scene, pulled Hansen off of Hujber, and Hansen departed the scene.

Shortly thereafter the police arrived and a police tracking dog followed a scent and found the accused hiding in a yard around the corner within a block or so of the location of the incident. [ 17 ] What occurred obviously constituted an assault, however, I was left with determining the issue in count #1 whether or not a defence of self defence was available to the accused, and on count #2 whether or not Hujber was properly identified and therefore properly acting as a police officer in the line of duty at the time that this incident occurred. [ 18 ] On the issue of Hujber being properly identified or acting as a peace officer there were three people that testified on the issue of the communication of his status to the accused.

The fact that he was a police officer employed by the RCM Police at the time, was off duty, was not in uniform, and did not present his badge when he attended the scene was not in dispute. [ 19 ] Claudette Natomagan testified that when she arrived, it was at the point where the brake torque had stopped, the complainant was on his back on the boulevard beside the van and was being assaulted by the accused. In her words she yelled at the accused “stop hitting him, you are assaulting a police officer”.

The accused did not stop his assault immediately and it was necessary for Claudette to physically remove him from the officer. She described herself, and obviously appeared as, a rather large woman, and did not have any difficulty in getting the accused off the police officer. [ 20 ] Second, Chris Hujber himself testified. He saw the argument, saw the brake torque and went to intervene. He strongly (and rightly) suspected that alcohol was involved and if required he was prepared to effect an arrest of a driver of a motor vehicle impaired by alcohol.

When he went to the window of the vehicle, it is also evident that the accused himself was doing nothing unlawful but was just in a vehicle that was causing this significant disturbance. He did not recall whether or not at that instance he identified himself as a police officer. He acknowledged that he had no badge and certainly was not dressed in uniform. On the issue of communication of his

status to the accused, he said that when he was on the ground, and while the accused was assaulting him, his wife said to the accused that he was a police officer. Chris Hujber himself indicated that he told the accused the same thing at the same time period. [ 21 ] Pam Hujber indicated that in her recollection her husband indicated that when he attended at the window of the vehicle in question he properly identified himself as a police officer, saying words to the effect, “I’m a police officer, you have to stop”.

She also indicated that she was quite upset, and was trying to call in the assault to the City Police, saying words to the effect of, “there is an officer down. [ 22 ] She also indicated that after Chris Hujber fell she told the accused that Chris was a police officer in words to the effect that “he’s a cop”, and also testified that Claudette used similar words to that effect at the same time. III. ISSUES A. Does the defence of self defence apply to the accused in relation to the aggravated assault charge? B. Can the accused be convicted of an assault on a peace officer in the circumstances of this case? IV.

ANALYSIS A.

Does the defence of self defence apply to the accused in relation to the aggravated assault charge? [ 23 ] The issue as to whether or not the accused can be convicted of an aggravated assault in these particular circumstances can be resolved easily, in my view, by a review of the facts of the case. [ 24 ] On the issue of wounding it is clearly the Crown’s onus to prove beyond a reasonable doubt not only that an assault occurred but that on the evidence, as a whole, self defence, is not available as a defence in the circumstances. [ 25 ] It is clear, as I had mentioned earlier that the accused assaulted Cst.

Hujber. It is also clear that that assault ended in two injuries which would constitute wounding. [ 26 ] First the broken nose is a breaking of the skin as it was demonstrated through viva voce evidence and the photographs that Cst. Hujber’s nose, and face, was significantly injured. Second, the injury to Cst. Hubjer’s ankle is a wound. [ 27 ] It is settled law that an intent to wound is not the requisite mens rea in for an aggravated assault convision. It only needs to be shown that there is “an objective foresight of bodily harm”, that results from the actions of an accused. (See: R. v.

Godin , [1] referred to under Tab 11, in the Defendant’s Brief of Law). [ 28 ] In the present case the accused,when confronted by the officer, came out with an aggressive attitude, indicating to Cst. Hujber, “so you think you’re tough?”, or words to that effect. The accused exited the vehicle and literally flew at the complainant, flailing his arms and fists and as a result of Hujber defending himself from that assault he fell and the assault resulted in his ankle being broken. This is, when viewed objectively, clearly a foreseeable result.

The test of objective foreseeability put in layman’s terms would be met if a reasonable person witnessing the incident would conclude that the injuries could result from the assault. To test the present case on that criterion, it would have to be clear to a bystander witnessing the event that the assault could cause such a fall and a broken ankle could result. In my view the answer to that question is yes.

[ 29 ] In any event, even if I am wrong in that conclusion regarding the injury to Hubjer’s ankle, there was further wounding in that the accused punched the officer in the face. This punching amounted to approximately five blows to the face while the officer was on the ground, again attempting to defend himself from the accused. Again, should one who punches another in the nose be surprised that, upon impact the nose is broken? This again was a reasonably foreseeable injury. [ 30 ] The accused claims however that he was justified in using force and that the victim in this case should be viewed as the aggressor.

Clearly Cst. Hujber was larger than the accused, he approached the accused in an aggressive manner, and the accused therefore argues that the evidence ought to lead to the inference that he felt threatened and the defence of self defence should be available to him. [ 31 ] This is, it is said, augmented by the actions of the officer when he pounded on the window of the vehicle in question. Up to this point in time Hansen was not breaking any laws, rather, it was the person operating the vehicle that was. [ 32 ] On the facts before me however the accused immediately became aggressive.

He asked no questions of the complainant but simply commenced his aggression to him immediately upon exiting the vehicle. He did not appear at all inhibited by the size difference. If indeed he was concerned Cst. Hujber was going to assault him or that Cst. Hubjer was larger than him, and intimidating to him he needed only to have remained in the vehicle with the window up and the door locked. The difference that separated them could easily have continued had he simply done nothing. [ 33 ]

Section 268 of the Criminal Code , as applied to this particular case, reads as follows: 268 .

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [ 34 ] In this instance, on my findings as outlined above, the accused is clearly guilty of the assault in question. Even if the original actions of the accused might be viewed as originally defensive in nature, he clearly used more force than was necessary to defend himself, which takes him out of the protection afforded to him by Section 34 (1) of the Criminal Code .

This is evident in that, even after Hansen had controlled the situation, he continued his assault against the victim while the victim was on the ground, and had to be physically restrained from continuing the assault. The officer at this time was clearly in a defensive posture, and could not be said, by any reasonable standard, to be posing any threat to the Accused. [ 35 ]

Section 30 of the Criminal Code provides as follows, namely: 30.

Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace. [ 36 ] Therefore, whether or not Cst.

Hujber was acting the course of his duties as a police officer, he had a lawful right to intervene, to prevent the continuation of the breach of the peace he witnessed. It was quite reasonable for him to go to the passenger window where Hansen was seated as the way the vehicle was being operated was clearly a danger to anyone in its vicinity, and while he didn’t have a right to arrest the accused, by the time the accused placed himself in the position that he did, the breach of the peace had ceased, and the accused was involved in his assaultive behaviour. B.

Can the accused be convicted of an assault on a peace officer in the circumstances of this case? [ 37 ] On the issue of whether or not Constable Hujber was acting in the execution of his duty, again, he did not need to be a police officer to engage in the activities that he did, namely, preventing the breach of the peace. However it is a constituent element of the mens rea of the offence of assaulting a police officer that a person know that the person he is assaulting is indeed a peace officer.

[ 38 ] Clearly Cst. Hujber was a peace officer.

Equally clearly he was, in my view, in the lawful execution of his duty, or at least, not exceeding any authority he had, however, I do not have to decide that point. [ 39 ] More to the point the issue of whether he was acting in the lawful execution of his duty as far as the accused is concerned, can be decided again by a fairly brief reference to the facts. [ 40 ] I have found on the facts that Charlotte Natomagan, Chris Hujber, and Pam Hujber all testified as to the proper identification of Chris Hujber as a police officer. [ 41 ] However, none of the three versions of what occurred were consistent with the other and given the heat of the moment and the immediate assault by Hansen on Hujber, I am left with some doubt as to whether the mens rea of the offence, namely that the accused knew that the officer in question was in fact a police officer has been proven. [ 42 ] As an example, Hujber himself did not recall identifying himself as a peace officer when he attended at the vehicle that the accused was in and pounded on the window.

He was not, as I said earlier, dressed as a peace officer, nor did he present any identification as such. Contrary to that, Pam Hujber testified that Chris Hujber did in fact identify himself as a peace officer. Its difficult to know whether or not this is actually the case, and even if it was the case, the facts surrounding this particular effort to prove identification of the officer in question appropriately is left in some doubt.

The window in the vehicle remained closed, there was loud noise coming from the vehicle itself, from the vehicle’s tires, and possibly from the radio inside the vehicle in question. [ 43 ] The other way that the message could have gotten through to the accused that Hujber was a police officer was testified to by Hujber, Natomagan and Pam Hujber. When he was on the ground being pummeled by the accused, each of the three witnesses indicated that at different times during that final bit of the altercation, they told the accused in different words that Hujber was a peace officer.

The exact timing and the words used by Hujber were not clearly made out, and I also have some doubt as to whether the requisite communication of this fact occurred on that occasion. In any event the assault stopped almost immediately upon Natomagan arriving on the scene which is pretty much the same time that all three of these witnesses testified that the last communication occurred. [ 44 ] This issue is essentially, in my view, how the concept of reasonable doubt is tested.

Where there are contradictory reports within the Crown’s evidence of a matter that is essential to the Crown’s case, and I have some doubt about such evidence, I must acquit. Even if one of the 3 versions of the particulars of the communication issue is correct, in the heat of the moment, there is some doubt in my mind as to whether or not the accused heard that communication. He certainly did not change his actions towards the officer if he did hear it. V. CONCLUSION [ 45 ] Therefore I am left, having considered the totality of the evidence without any reasonable doubt as to the accused’s guilt on count #1.

No evidence was offered by the Accused to contradict any Crown evidence and the evidence considered by me left me convinced beyond a reasonable doubt and he is therefore guilty of Count #1, the aggravated assault on Chris Hujber. [ 46 ] The accused, based on my finding as to the issue of communication of the complainant’s status as a police officer, on count #2, is in some doubt, and therefore the accused is entitled to be acquitted on that charge. [ 47 ] On count #3, the Crown has invited me to dismiss that charge, and I do so. [ 48 ] On count #4, the accused in this case has obviously committed a breach of the peace, and he will be convicted, on his prior admission of the undertaking in question, of count #4 as well. [ 49 ] Counts #5 and #6 have already been spoken to by way of Guilty Plea.

[ 50 ] I thank counsel for the accused for the extensive brief that she filed which I found helpful in analyzing the law. As well, the arguments and cases filed by the Crown were helpful in me making my conclusions today. [ 51 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 27 th day of January, A.D. 2011. _____________________________ S.D. Loewen, J