Her Majesty the Queen - v. -, 2015 SKPC 85

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 085 Date: June 11, 2015 Information: 44696237 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathon Frank Blaser Appearing: Mr. Colton Fehr For the Crown Ms. Christina Skibinski For the Accused JUDGMENT M. HINDS , J BACKGROUND [ 1 ] On November 15, 2013 at Regina, Saskatchewan, Jonathon Frank Blaser was charged with the following offences:

(1) Unlawfully assault Cst. Stewart, a peace officer, in the execution of her duty contrary to section 270(1) (

a) of the Criminal Code .

(2) Did without the consent of Cst. Stewart, a peace officer engaged in the execution of her duty, attempt to take a weapon, to wit: her

firearm, from her possession, contrary to

section 270.1 of the Criminal Code . [ 2 ] Constables Allisha Stewart and Zachary White and Corporal Tony Ye testified for the Crown. Mr. Blaser testified in his own defence. [ 3 ] During the early evening of November 15, 2013, Jonathon Blaser consumed a great deal of alcohol at his home. Mr. Blaser subsequently went to his brother’s home at 2813 5 th Avenue in Regina, around 7:00 p.m. The two men visited and drank some more alcohol. Around 7:35 p.m., police were called to an unwanted guest complaint at 2813 5 th Avenue.

Constables White and Stewart were working together in a marked patrol car that evening and responded to the complaint. Upon arrival at the residence the officers observed two men fighting outside. One of these men was Jonathon Blaser. The officers separated the two men. Constable Stewart dealt with Jonathon Blaser. Initially she took Mr. Blaser to the ground and attempted to handcuff Mr. Blaser. She was not successful. Mr. Blaser flipped Constable Stewart onto her back, landed on top of her and proceeded to grab onto her firearm. Constable Stewart struggled with Mr. Blaser.

Within a short time, Constable White came to Constable Stewart’s aid. Constable White kneed and punched Mr. Blaser. Eventually Mr. Blaser released his grip on Constable Stewart’s firearm, let go of her and attempted to grab Constable White’s belt. Constables White and Stewart subsequently handcuffed and arrested Mr. Blaser. Initially the police took Mr. Blaser to the Regina General Hospital. Mr. Blaser was subsequently taken to the Regina Police Station. [ 4 ] There are several issues before the Court. The first issue concerns whether Constable Stewart was engaged in the execution of her duty.

The second issue concerns the reliability of evidence provided by Constables Allisha Stewart and Zachary White. The third issue concerns whether the Crown has proved that the accused, Jonathon Blaser knew that Constable Stewart was a police officer. [ 5 ] In this case , I decided that the Crown proved that Constable Stewart was acting in the execution of her duty when she took Mr. Blaser to the ground and attempted to handcuff him. Overall, I found the evidence of Constables Stewart and White to be credible and reliable.

I also found that the Crown proved that the accused, Jonathon Blaser knew that Constable Stewart was a police officer. As a result I convicted Mr. Blaser of the two charges before the Court. CROWN EVIDENCE Constable Allisha Stewart [ 6 ] Constable Stewart was a member of the Regina Police Service from 2008 until March 27, 2014. Constable Stewart is presently a member of the Saskatoon Police Service. At all material times Constable Stewart was 5' 10" tall and weighed 150 pounds. On November 15, 2013, she was working on routine patrol with Constable Zachary White.

Both officers were wearing police issued pants, shirt, vest and duty belt. Around 7:35 p.m., the two officers were dispatched to an unwanted guest complaint at 2813 5 th Avenue. There were reports of an intoxicated male causing a disturbance, banging on doors. [ 7 ] Constable White drove the patrol vehicle to the residence. The two officers arrived near the residence four minutes later at 7:39 p.m. As the officers pulled up, Constable Stewart observed a man, known to her as Jonathon Blaser, start fighting with another male that was in front of 2813 5 th Avenue.

Both officers got out of the patrol car and ran towards the two men who were fighting. [ 8 ] Constable Stewart testified that she ran towards the larger, heavier male, Jonathon Blaser and announced her presence by saying “Police, stop fighting.” Constable White ran towards the other male who Constable Stewart described in-chief as skinnier and older. [ 9 ] As Constable Stewart ran towards Jonathon Blaser, he stepped towards her. At that point Constable Stewart “took him to the ground to prevent any further fighting, just to get him - - in control”. As she took Mr.

Blaser down to the ground they landed behind a parked car, right beside the curb. Constable Stewart had control of Mr. Blaser’s right hand and was attempting to get a hold of his left hand in order to get him into handcuffs. As she went to grab his left arm, Mr. Blaser twisted upwards and caught her off balance. As a

result, Constable Stewart was flipped onto her back on the gutter of the roadway next to the sidewalk curb. Mr. Blaser landed on top of her with his left hand over her torso. Constable Blaser could not get back up. She grabbed Mr. Blaser’s arm and tried to push him off her. She was unable to do so. Constable Stewart then noticed that Mr. Blaser had his hand over the holster and partly on the handle of her police issued firearm which was on her right hip. Constable Stewart began to fear for her life. She told Mr. Blaser to let go of her gun. At that point in time two things occurred.

First, Constable White was yelling at her and asked if she was okay. She said “No”. Secondly, Constable Stewart tried continuously to push Mr. Blaser off her. [ 10 ] Constable White came to assist Constable Stewart. She told him that Mr. Blaser had his hand on her gun. While Constable Stewart kicked Mr. Blaser’s legs with her left foot, Constable White was able to get Mr. Blaser to release her gun and pull his hand off her. Constable Stewart estimated this struggle lasted three to four minutes. [ 11 ] Constable Stewart got up and jumped onto the back of Mr.

Blaser’s legs to prevent him from being able to get back up and fight. From a kneeling position, Constable Stewart was able to help Constable White handcuff Mr. Blaser. She then called for more police units on her radio. More police arrived on the scene. Mr. Blaser was brought to his feet, but refused to walk. Police dragged him to a police vehicle and placed him in the back seat. [ 12 ] Constable Stewart subsequently went to speak to Mr. Blaser and observed that Mr. Blaser’s eyes were “very wide”, that he was sweating profusely and he was mumbling. Mr.

Blaser then began yelling and kicking, spitting and hitting his head against the silent partner. He smelled like alcohol. Police put a spit hood on Mr. Blaser and again placed him in the back seat of a police vehicle. She thought Mr. Blaser might be in a state of excited delerium. [ 13 ] Constable Stewart arrested Mr. Blaser for assaulting a police officer at 7:57 p.m. and read him his Charter rights and police warning. In response to the Charter right to call a lawyer Mr. Blaser said “I will”. In response to the police warning Mr.

Blaser said “Yes, are you trying to help me?” [ 14 ] Emergency Medical Services (EMS) arrived on scene and Mr. Blaser was put on a stretcher and placed in the back of the EMS bus. EMS put leg restraints on Mr. Blaser. He began kicking. The leg restraints did not hold down his legs. EMS gave Mr. Blaser a sedative. This did not have an effect on Mr. Blaser. Police issue legs straps were applied to Mr. Blaser. Constable Stewart sat on his legs while on route to the Regina General Hospital. Mr. Blaser and Constable Stewart arrived at the hospital at 8:07 p.m. [ 15 ] At the hospital Mr.

Blaser was screaming, throwing his head around and resisting help. A second sedative was given to Mr. Blaser in the hallway of the hospital. A third sedative was given to Mr. Blaser in a hospital room. [ 16 ] Constable Stewart left the hospital for approximately twenty minutes to change out of her wet uniform. She returned to the hospital and remained with Mr. Blaser until he was discharged at 4:02 a.m. on November 16, 2013. Mr. Blaser was quiet and more coherent at that time. [ 17 ] At 4:03 a.m., Constable Stewart advised Mr.

Blaser that he was arrested for assaulting a police officer and attempting to disarm a police officer. She also provided Mr. Blaser with his Charter rights and a police warning. In response to the Charter question, do you understand, Mr. Blaser said “Yeah”. In response to the question, do you want to call a lawyer, Mr. Blaser said “No, I’ll call them later”. In response to the warning question, “do you understand”, Mr. Blaser said “Yes, ma’am” respectively. [ 18 ] Constables Stewart and White then put Mr. Blaser into a patrol car. At 4:05 a.m., as the police were getting ready to leave the parking lot Mr.

Blaser said “Don’t you guys have a shotgun up there? You should have it up there.” Mr. Blaser also said “You guys have nice guns.” [1] [ 19 ] Mr. Blaser was taken to the Regina Police Station. He arrived at 4:08 a.m. [ 20 ] On cross-examination Constable Stewart testified as follows:

- She did not see the interaction between Constable White and Mr. Blaser. - Sergeant Gottselig was called to and attended the scene shortly after the physical incident involving Mr. Blaser. Sgt. Gottselig took photographs of Mr.

Blaser at the hospital. - She and Constable White pulled up a little west of 2813 5 th Avenue. - She conceded that she didn’t write in her notebook that she announced her presence that night by saying “Police”. - When she arrived she saw a large native male and a smaller guy. - She described the large native male (Jonathon Blaser) in her report as being approximately 230 pounds. - In her report she described a fear for the safety of the smaller guy getting clobbered by the 230 pounder. - She did not make any note of the 230 pounder in her notebook. - Nowhere in her notes did she state that she viewed Jonathon Blaser as the bigger guy or that she was fearful that Mr.

Blaser was going to clobber the little guy. - She saw the two men fighting, they both had their hands on each other. - The officers went to stop the fight, they ran towards the two men. - She announced “police” and Mr. Blaser turned and looked at her and started to step towards her and that is when she took him to the ground. - As they went down, she went to grab his left arm and that is when he knocked her off her balance and that is when she fell onto her back and landed in a pile of slush. - Mr. Blaser did not make any verbal comments to her. - Mr.

Blaser’s hand was over top of her holster and partially on the handle of her gun. - She learned from medical staff that Mr. Blaser had cocaine, opiates and alcohol in his system. - Mr. Blaser got sedatives. She noted that the name of the sedative is “Versed”. - She confirmed that Exhibit D-3 consists of four photographs showing the booking area at the Regina Police Service detention area. Mr. Blaser is shown in these photographs along with herself, Constable White and Corporal Silzer. - At the time of booking Mr.

Blaser in at the police station he did not appear to her as being 139 pounds. - When she dealt with Mr. Blaser that night he was heavy. She estimated he weighed approximately 230 pounds. - When asked to look at Mr. Blaser in Court, she said “He’s lost weight, he didn’t look like that ten months ago.” Constable Zachary White [ 21 ] Constable White was working with Constable Stewart on November 15, 2013. At 7:35 p.m., the officers were dispatched to 2813 5 th Avenue, Regina regarding an unwanted guest. Constable White was wearing his full police uniform with duty belt that day.

He drove a marked police car to 5 th Avenue just west of the residence. He did not activate any of the lights on the police car. As he pulled up near the residence, he observed two individuals out in front of 2813 5 th Avenue. One individual, who was later identified as Jonathon Blaser, had dark clothing and was not wearing any shoes. [ 22 ] Constable White observed Mr. Blaser (dark clothing, no shoes) start to approach the other male. He further observed that a fight altercation started to occur between the two males. [ 23 ] Both officers got out of the patrol car and went to pull the two men apart.

Constable Stewart went to Mr. Blaser. Constable White went to the other man. Constable White called out “Police, police, police” and grabbed his man. The man looked up at Constable

White and stopped. Constable White told the man to stay still. The man cooperated. [ 24 ] There was a car in between Constable White and Constable Stewart. Constable White could not see Constable Stewart. He could hear Constable Stewart talking loudly - giving commands. Constable White called out to Constable Stewart. He asked her if she was controlling her man (Mr. Blaser). Constable White heard her yell “No”. He understood that she needed help. [ 25 ] Constable White told his man to stay put and not move. Constable White then made his way around the back of the car that separated him from Constable Stewart.

He observed Constable Stewart laying on her back up against some sidewalk curbing. Mr. Blaser was laying directly beside her with both hands over the top of her lower torso. As he moved closer, Constable White observed Mr. Blaser’s left hand was grabbing onto the grip of her duty firearm, which was on the right side of her waist. He thought Mr. Blaser was attempting to disarm Constable Stewart. [ 26 ] Constable White delivered three or four knee strikes to the left side of Mr. Blaser’s torso, just below the armpit area. The knee strikes did not seem to have any effect on Mr. Blaser.

Constable White then delivered three or four punches to Mr. Blaser’s face. The punches did not appear to cause Mr. Blaser any pain but did divert his attention from Constable Stewart to Constable White. Mr. Blaser released his grip on Constable Stewart’s firearm, however, he continued to hold her down against the ground. Constable White delivered three or four closed fist strikes to Mr. Blaser’s face. Mr. Blaser turned towards Constable White, let go of Constable Stewart and made a grabbing movement towards the left side of Constable White’s duty belt. Constable White hit Mr. Blaser’s hand away from his belt.

Constable White then grabbed one of Mr. Blaser’s hands and placed a handcuff on it. Constable White then rolled Mr. Blaser onto his stomach and with the assistance of Constable Stewart handcuffed both of Mr. Blaser’s hands behind his back. Constable White testified that Mr. Blaser “. . . was still resistant at that point, still very amped up or agitated.” [ 27 ] The two officers used their radio and called for additional police to assist them. Other police officers arrived on the scene and placed Mr. Blaser in the back seat of a police vehicle.

Constable White observed that Constable Stewart attempted to get some information from Mr. Blaser after he was placed in the police vehicle. Constable White testified that Mr. Blaser was talking very quickly. He could not understand what Mr. Blaser was saying. [ 28 ] Emergency Medical Services were called because the officers were concerned about Mr. Blaser’s behaviour. Constable White testified that Mr. Blaser had “abnormal behaviour” in that when the police were fighting with him, he did not seem to fatigue or feel any pain and he was speaking rapidly. [ 29 ] Prior to EMS arriving, Constable White observed Mr.

Blaser banging his head around and hitting windows in the back of the patrol car and spitting. Police placed a spit hood on Mr. Blaser and a restraint strap around his ankles. After EMS arrived, Mr. Blaser was sedated and placed on a stretcher. The sedation started to work, however in a short period of time Mr. Blaser became agitated. [ 30 ] EMS took Mr. Blaser to the General Hospital. Constable White followed and arrived at 8:17 p.m. and stayed with Mr. Blaser. Once again Mr. Blaser became very agitated and began to thrash around. Hospital staff sedated Mr.

Blaser who began to calm down. [ 31 ] Constable White testified that he and Constable Stewart were relieved for lunch at midnight and returned to the General Hospital at 01:25 a.m. The two officers and Mr. Blaser left the hospital at 4:00 a.m. While transporting Mr.

Blaser to the Regina Police Station, he made some comments about “... those nice firearms we have” and about “. . .where our police issue shotguns should be in our car or where they normally sit.” [ 32 ] On cross-examination, Constable White testified as follows: - It was a short time, approximately five minutes from the time police arrived on the scene to the take down of Mr. Blaser. - When police arrived on scene Mr. Blaser was very excited, breathing heavily, his speech was very rapid and slurred. Mr. Blaser was also sweating profusely.

- Mr. Blaser was not reacting to pain techniques that Constable White applied to him. - Initially he was dealing with another person, not Mr. Blaser. - When he first saw Constable Stewart on the ground he could see Mr. Blaser grabbing across her, but he did not see what Mr. Blaser was grabbing. As he got closer he could see Mr. Blaser was grabbing for Constable Stewart’s firearm. - He conceded that nowhere in his notes does it say Mr.

Blaser was grabbing for Constable Stewart’s gun. - In his report he described Jonathon Blaser as weighing a minimum 220 pounds. - He is 6'2" and weighs 180 pounds. - When he applied pain compliance techniques to Mr. Blaser, Mr. Blaser did not wince or cry out in pain. - He reviewed and commented upon some video surveillance taken from a camera located at the Regina Police Service booking area in the detention area at 4:08 a.m. (Exhibit D-4). - He identified Corporal Silzer as being the officer taking photographs of Mr.

Blaser. - He agreed that he heard one of the officers shown in Exhibit D-4 make the following statement to Mr. Blaser “You are making no sense, man.” - He believes that EMS gave Mr. Blaser medication twice. - He agreed that eight hours later, Mr. Blaser still appeared to be intoxicated in the video (Exhibit D-4). [ 33 ] On re-examination Constable White testified that his notes state that he observed Mr. Blaser grabbing Cst. Stewart’s right side, duty belt. Corporal Tony Ye [ 34 ] Corporal Tony Ye has worked for the Regina Police Service for seventeen years.

Corporal Ye was working in the cell block area in the detention area during the early morning hours of November 16, 2013. He printed Mr. Blaser’s fingerprints during that time. [ 35 ] One of Corporal Ye’s primary responsibilities in the cell block area is creating what he calls “Ident Reports” on the computer system. “Ident Reports” involve fingerprinting, photographing and gathering information on accused persons. Corporal Ye indicated that if a person he is dealing with on a new charge has been previously fingerprinted at the RPS cell block, he creates an “Ident Report” on the computer under that person’s file.

When he creates a new profile for the person on the current charge, the computer imports any details on that person from the previous arrest report (when they were last in the cell block). Corporal Ye testified that he would look over imported data including the primary characteristics of the person to ensure they are accurate with the person that is in front of him. [ 36 ] When Corporal Ye created a new “Ident Report” for Mr. Blaser on November 16, 2013, he imported information from a previous arrest that indicated that Mr. Blaser was approximately 5' 6" tall and weighed 146 pounds.

Corporal Ye said that information was consistent with how Mr. Blaser presented to him on November 16, 2013. [ 37 ] Corporal Ye agreed that at the request of the Crown prosecutor he created a document entitled “Custody Report Sheet” on Mr. Blaser. He further agreed that the information contained on the “Custody Report Sheet” indicated that Mr. Blaser was 5' 6" and 139 pounds. Corporal Ye cannot explain the discrepancies in Mr. Blaser’s weight between the “Ident Report” (146 pounds) and the “Custody Report Sheet” (139 pounds). Mr. Blaser ’s Medical Records

Mr. Blaser ’s Medical Records [ 38 ] With the consent of the Crown, Mr. Blaser’s medical records from his attendance at the Regina General Hospital on November 15-16, 2013 were admitted into evidence as a business record (Exhibit D-5). Mr. Blaser [ 39 ] Mr. Blaser is twenty seven years of age and is a resident of Regina. Mr. Blaser testified that his father passed away on November 7 or 8, 2013 and that he was feeling very lost on November 15, 2013. [ 40 ] Mr. Blaser recalls getting off work on November 15, 2013 around 5:00 p.m. He was feeling low and down. He began drinking Bacardi Rum at his apartment. Mr.

Blaser’s oldest brother called him and tried to cheer him up. Mr. Blaser went over to his brother’s apartment around 7:00 p.m. His brother’s apartment is located on 5 th Avenue. The two brothers had a few drinks and watched a Rolling Stones Concert on the television. Mr. Blaser recalled that his brother’s girlfriend was also at the house and was getting upset with his brother. [ 41 ] Mr. Blaser thinks he drank most of a 40 ounce bottle of Bacardi Rum over the course of the evening. He recalls having 8 or 9 drinks of rum at his home. Mr. Blaser testified that he normally just drinks alcohol.

Page 3 of 3 of the biochemistry report on Mr. Blaser reveals that he tested positive for benzodiazepine, cocaine and opiates. He does not recall consuming drugs that evening, but suggested that someone may have given him drugs to cheer him up. [ 42 ] Mr. Blaser testified that his memory “stopped around 8:30 p.m.” He does not recall: (1) going outside of his brother’s apartment; (2) getting into a fight; (3) being at the hospital; or (4) being at the police station. He recalls watching television at his brother’s place. His next memory is waking up in police cells. [ 43 ] On cross-examination Mr.

Blaser testified as follows: - The drinks of rum he consumed at his home were triples, as a result he consumed between 24 and 29 ounces of rum. - His brother’s name is Shawn Gordon. - He finished off his 40 ounce bottle of rum at his brother’s home. - The next day he had a headache and had some difficulties walking. THE APPLICABLE LEGISLATION [ 44 ] The offences of assaulting a peace officer, assault and disarming a peace officer are set out in sections 270 , 265 and 270.1 of the Criminal Code , RSC 1985, c C-46, and read in part as follows: Assaulting A Peace Officer 270

(1) Everyone commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer. Assault 265(1) A person commits assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly

(2) This

section applies to all forms of assault including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. Disarming A Peace Officer 270.1

(1) Everyone commits an offence who, without the consent of a peace officer, takes or attempts to take a weapon that is in thepossession of the peace officer when the peace officer is engaged in the execution of his or her duty.

(2) For the purpose of subsection (1), “weapon” means any thing that is designed to be used to cause injury or death to, or to temporarilyincapacitate, a person. Was Constable Stewart “engaged in the execution of her duty”? [45] The uncontradicted evidence reveals that on November 15, 2013 at 7:35 p.m., Constables Stewart and White were dispatched to an “unwanted guest” complaint at 2813 5th Avenue. The two officers arrived nearby the residence four minutes later at 7:39 p.m. As the officers pulled up, they both observed two men begin to fight each other in front of 2813 5th Avenue.

One of these men was Mr.Blaser. Both officers got out of the patrol car and ran towards the two men who were fighting. Their stated purpose was to separate thetwo men and stop the fight. [46] In the case of R v Noel (A.A.) (1995), (BC CA), 63 BCAC 191; 104 WAC 191; 101 CCC (3d) 183 (CA),the British Columbia Court of Appeal indicated that a police officer’s duty may arise pursuant to statutory provisions, or may arisepursuant to the common law.

The Court indicated that the common law duty of policemen included a duty to keep the public peace, toprevent crime and to detect crime and to generally protect property and others from criminal injury. [47] In this case I am satisfied that Constable Stewart acted pursuant to the common law duty of a police officer to keep the publicpeace and prevent crime. I am of the view that she was engaged in the execution of her duty when she encountered Mr. Blaser andseparated him from the man he was fighting with. The Credibility and Reliability of the Police Evidence [48] Counsel for Mr.

Blaser urged the Court to closely examine overall the reliability of the evidence of Officers Stewart andWhite. Defence counsel primarily focussed on the accuracy of these two officers’ testimony regarding the weight of Mr. Blaser. [49] In her testimony and report Constable Stewart described Mr. Blaser as being a large native male, weighing approximately 230pounds.

Constable Stewart’s report also describes her fear for the safety of the smaller guy getting clobbered by the 230 pounder. [50] On cross-examination, Constable White acknowledged that in his report he described Jonathon Blaser as weighing a minimum220 pounds. [51] When Corporal Ye created a new “Ident Report” for Mr. Blaser on November 16, 2013, he imported information from aprevious arrest that indicated that Mr. Blaser was approximately 5' 6" tall and weighed 146 pounds. Corporal Ye said that informationwas consistent with how Mr. Blaser presented to him on November 16, 2013.

Corporal Ye did not personally weigh Mr. Blaser. [52] When Mr. Blaser testified he did not address the subject of his weight on November 16, 2013 in-chief nor on cross-examination. [53] Defence counsel invites the Court to conclude that Constables Stewart and White grossly overestimated the weight of Mr.Blaser and as a result this colours and negatively affects the accuracy of their entire testimony. The Court does not accept this point ofview. In the first place I am uncertain of Mr. Blaser’s actual weight on November 16, 2013. Corporal Ye imported data from a previous

arrest of Mr. Blaser on an unknown date. That data included the weight of Mr. Blaser being 146 pounds. Corporal Ye did notpersonally weigh Mr. Blaser on November 16, 2013, rather he simply testified that the weight of 146 pounds was “consistent” with howMr. Blaser appeared to him on November 16, 2013. Corporal Ye was unable to give the precise weight of Mr. Blaser. Secondly, giventhe intense physical struggle that occurred earlier that evening between Constables Stewart and White with Mr. Blaser, in my view, it isunderstandable that the officers thought Mr.

Blaser was heavier than he may have actually been. [54] Overall I found the police evidence was presented in a straightforward, credible and reliable manner. The fact that theirpolice notes do not contain the same information as their more detailed reports does not in my view diminish their credibility andreliability. [55] I found Mr. Blaser’s evidence was less credible and reliable. Notwithstanding that Mr. Blaser heard evidence indicating thatpolice arrived on scene at 7:39 p.m. and arrested him for assaulting a police officer at 7:57 p.m., Mr.

Blaser testified that his memory“stopped around 8:30 p.m.” He consumed a great deal of alcohol in the early evening of November 15, 2013. It also appears at somepoint he ingested other substances including benzodiazepine, cocaine and opiates. I find that Mr. Blaser’s memory of events wasnegatively affected by his consumption of alcohol and other substances. Assault Peace Officer [56] Assault of a police officer first requires that there be an assault. A person commits an assault pursuant to section 265(1)(

a) ofthe Criminal Code when, without the consent of another person, he intentionally applies force to that person, directly or indirectly. Theoffence of assaulting a peace officer requires that the Crown prove that the person assaulted is a peace officer, engaged in the executionof their duty. [57] In R v Tom (1992), (BC CA), 13 CRR (2d) 141, the B.C. Court of Appeal stated that the offence of assaulton a peace officer under s. 270(1)(

a) of the Code is a general intent offence (para 22). There are a number of other decisions that agreethat it is a crime of general intent. See for example R v Legrandeur, 2006 BCSC 227, 68 WCB (2d) 688; R v Haymour, 2005 ABPC 124,379 AR 124. [58] Constable Stewart is a member of the Regina Police Service. I find she is a peace officer within the meaning ofsection 2 of the Criminal Code. I have previously determined that Constable Stewart was engaged in the execution of her duty when sheencountered Mr. Blaser. [59] I find that Mr. Blaser knew he was dealing with a police officer.

Constables Stewart and White were both wearingfull police uniforms with duty belts that evening. In addition to being visually identifiable as police officers, I find that both officersannounced their presence as police officers to Mr. Blaser and the man he was fighting after arriving on scene at 7:39 p.m. and prior toany physical contact with them. Mr. Blaser’s subsequent actions in holding Constable Stewart down while grabbing at her firearm alsoreinforce this finding. [60] I also find that Mr.

Blaser intentionally applied force to Constable Stewart by twisting upwards as she went to grab his leftarm, which resulted in flipping Constable Stewart onto her back. In addition, once Constable Stewart was on her back I am satisfied thatthe Crown has established that Mr. Blaser intentionally applied force to Constable Stewart by holding her down on the ground againsther will. Constable Stewart did not consent to these physical actions. [61] Lastly, having determined that assault of a police officer is a general intent offence, pursuant to

section 33.1 of the CriminalCode, Mr. Blaser’s self-induced intoxication is not a defence to this charge of assault of a peace officer. While the evidence reveals thatMr. Blaser was intoxicated that evening, I am not satisfied that Mr. Blaser was in a state of extreme intoxication akin to automatism. [62] I am of the view that Mr. Blaser is guilty of the offence of assaulting a peace officer.

Disarming a Peace Officer [ 63 ] In R v Jacquot, 2010 NSPC 13, 86 WCB (2d) 763 [ Jacquot ] , the accused attempted to pull at a police officer’s belt when the accused’s husband was being arrested. The officer felt his pistol move and pushed the accused off. At the scene, the accused was asked why she touched his gun, and she said that she didn’t touch it but only pulled at the belt. However, a witness said that she replied that she thought the officer was going to shoot her husband. No one saw her actually touch the revolver.

The Court held at paragraph 111 that “the essential elements of this offence would require proof beyond a reasonable doubt that [the accused] took or attempted to take a weapon in the possession of [the officer] while he was engaged in the execution of his duties.” On the facts of this case, the Court had concluded that the officer was in the execution of his duties and did not in any way consent to anyone taking his weapon. However, the Court was unconvinced that she actually tried to take the weapon.

As a result the accused was acquitted on that charge. [ 64 ] In Watt ’s Criminal Law and Evidence Newsletter (Nov 4, 2002), it is stated that “The external circumstances of this offence require proof that D took or tried to take a weapon that a peace officer had in his or her possession when engaged in the execution of his or her duty.

The actual or attempted taking must be without the officer’s consent….The mental element does not require proof of any ulterior state of mind.” [ 65 ] Based on the decision in Jacquot , and the comments in Watt ’s , I am of the view that the essential elements of the offence of disarming a police officer are as follows: 1. The accused took, or attempted to take a weapon; 2. The weapon was in the possession of the officer; 3. The officer did not consent to the accused taking the weapon; and 4.

The officer was in the execution of their duties. [ 66 ] In the present case, I am of the view that the Crown has established that Mr. Blaser attempted to disarm Constable Stewart. The evidence reveals that Mr. Blaser’s left hand was grabbing onto the grip of Constable Stewart’s firearm for three to four minutes. Initially, Constable Stewart alone struggled with Mr. Blaser. She could not get up from the ground nor could she get Mr. Blaser’s hand off the grip of her firearm. Constable Stewart clearly did not consent to Mr. Blaser’s attempt to take her firearm. She rightly felt she was in the struggle of her life.

Constable White intervened. Eventually, after Constable White punched and kneed Mr. Blaser, he let go of the firearm and was handcuffed. [ 67 ] I am of the view that disarming a police officer is a general intent offence. As a result, I find that pursuant to

section 33.1 of the Criminal Code , Mr. Blaser’s self-induced intoxication is not a defence to this charge of assault of a police officer. Moreover, while Mr. Blaser was intoxicated that evening, I am not satisfied that Mr. Blaser was in a state of extreme intoxication akin to automatism. [ 68 ] I find that Mr. Blaser is guilty of the offence of attempting to disarm a peace officer. CONCLUSION [ 69 ] For the reasons set out above, I find the accused guilty of the two offences before me. ________________________________

M.J. Hinds, J [1] During the trial, the Court determined that these statements were voluntary and should be admitted into evidence.