R. v. Gryba, 2019 MBPC 47

CITATION: R. v. Gryba , 2019 MBPC 47 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Millo ) ) for the Crown - and – ) ) ) Emil Gryba ) ) D. Booy for the Accused ) ) ) Reasons for Decision ) Delivered: August 6, 2019 CORRIN, P.J. THE CHARGES [ 1 ] The accused pled not guilty to the following offences: 1. Mischief: that he interfered with the property of Ross Pokeza by blocking access to his business premises, without legal justification, excuse, or colour of right; 2. Resist peace officer: that he resisted Constable M. Robb, a peace officer engaged in the execution of his duty; 3.

Assault peace officer (x2): that he assaulted Constables M. Robb and R. Rentz, peace officers engaged in the execution of their duty; 4. Attempt to disarm peace officer: that he attempted to disarm Constable M. Robb, a peace officer engaged in the execution of his duty, by attempting to take his taser without said officer’s consent. THE INCIDENT [ 2 ] All of the evidence received at trial was from Crown witnesses. The defence called no witnesses. [ 3 ] The accused and the complainant, Pokeza, were involved in a dispute on the morning of June 29, 2017. The dispute related to the use of Mr. Pokeza’s garage.

The garage had been formerly owned by the accused. The commercial property had changed hands on April 1, 2017. The accused and the complainant had made an informal arrangement whereby the accused could temporarily and without payment, use the garage for storage of certain items of personal property that were not included in the sale. [ 4 ] The complainant told Court that he had moved certain tools that the accused had left in storage at the garage. He testified that the accused, after he became aware of this, was upset because he couldn’t conveniently access his tools.

He further testified that the accused had confronted him about this and pulled his hair and punched him in the chest. Court was told that Mr. Gryba also stated that “If I can’t work, you can’t work” and that following this, the accused had placed his truck in the driveway to the business, thereby preventing staff and customers’ vehicles from entering or exiting the property. [ 5 ] The complainant soon contacted the Winnipeg Police for assistance with the situation. Constables Robb and Rentz were the first officers to respond to the 911 dispatch and arrived shortly thereafter at approximately 9:24 a.m.

Dispatch had provided the officers with a description of the accused’s truck and the nature of the complaint. The dispatcher had also told the officers that Mr. Gryba was the owner of the truck and provided his description. On arrival, the officers, both in full uniform, divided investigative duties.

Constable Robb spoke with the complainant and Constable Rentz spoke with the accused, who was working on a vehicle a short distance from where Robb and Pokeza were talking. [ 6 ] Constable Rentz confirmed that he initially found the accused doing something in the driver’s seat of another truck, not the one blockading the driveway, and that when he approached, he tried to speak with the accused but received no response, that the accused initially ignored him. He related that the accused had ultimately exited the vehicle and stood directly in front of him.

That after he had confirmed the accused’s ownership of the truck in the driveway, he asked the accused to move it. That the accused had said “No.” That he then asked the accused to give him the keys so he could move it for him relating that if he did so he would not be charged. Rentz

testified that the accused had responded “No. Fuck off.” [ 7 ] At this point, Constable Robb, who, as previously mentioned, had been speaking with the complainant nearby and had overheard the exchange between Rentz and the accused, interceded and arrested the accused for mischief. [ 8 ] Constable Robb instructed the accused to place his hands behind his back so he could be handcuffed. Court was informed that he felt this necessary for officer safety reasons. The accused did not comply.

The accused struggled with the officers and then employed a defensive form of resistance described by Constables Robb and Rentz as “turtling” that initially prevented them from placing him in handcuffs. [ 9 ] Constables Robb and Rentz engaged with the accused for approximately four minutes before they were able to place him in handcuffs. At some point during the struggle, Constable Robb’s leg was pressed against a parked vehicle’s bumper, causing him pain. Constable Robb perceived the accused as having intentionally pressed his knee against his leg.

Crown witnesses confirmed that they had seen the leg pinning described by Constable Robb and had heard him cry out in pain and shout “He’s pinning my leg.” At this point, Constable Robb punched the accused twice in the head. Immediately following this, he told the accused that he would employ his taser if he, the accused, continued to resist the handcuffing.

The accused didn’t desist and Constable Robb employed the taser. [ 10 ] Court was told that the initial tasering was done in “drive stun” mode, a situation where the taser is held against the targeted individual without the firing of projectiles, an approach which causes pain but does not incapacitate the target. Court learned that several drive stuns were employed, all to Mr. Gryba’s thigh, and all to no avail. The accused continued to be contumacious.

At this point Constable Rentz acknowledged punching the accused in the head but to no avail as the accused continued to struggle and resist. [ 11 ] Then, after radioing for backup, but prior to backup officers arriving, Constable Robb deployed his taser full strength, multiple times. While being electrocuted, the accused grabbed the taser for approximately five seconds. Constable Robb did not lose control of his taser at any point during his interaction with the accused.

Constable Robb conceded during cross-examination that the accused may have grabbed the taser to avoid pain as opposed to trying to take the weapon from him. The accused was subsequently subdued until backup arrived. The accused was then placed in handcuffs and escorted to a police car. ISSUES TO BE DETERMINED [ 12 ] Defence argued for acquittal on all charges as follows: - That the accused, Mr. Gryba, had legal justification, excuse, or colour of right with respect to the property owned by the complainant Pokeza, pursuant to section 429(2) of the Criminal Code .

Section 429(2) states that the court shall not convict a person accused of mischief against property when they act with legal justification, excuse, or colour of right. - That Constable Robb and Rentz were not within their scope of duty when they arrested the accused for the offence of mischief without a warrant as they lacked reasonable and probable grounds to do so at such time. - That Constable Robb was not within the execution of his duty when he arrested the accused as he lacked the objectively reasonable and probable grounds required to do so.

As the arrest was allegedly unlawful, Defence argued that the Court should find the accused not guilty of resisting arrest. - That Constables Robb and Rentz were not within the execution of their duty when they physically detained the accused. That therefore, the accused defended himself against unlawful use of force in a manner that was reasonable under the circumstances.

That the evidence at trial did not establish that the accused had the requisite mens rea for the offence of assaulting either officer. - That Constable Robb was not within the execution of his duty when the accused is alleged to have attempted to disarm him. Furthermore, the accused was being electrocuted at the time he is alleged to have attempted to disarm Constable Robb of his taser. The accused’s actions in response to the pain compliance technique used by Constable Robb should therefore be understood as an instinctual and not a purposeful response.

That therefore the accused did not have the requisite mens rea for the offence. That accordingly, the Court should therefore find the accused not guilty of attempting to disarm Constable Robb of his taser.

THE MISCHIEF CHARGE [ 13 ] The offence of mischief is prefaced in the Criminal Code by the exception in section 429(2) , which stipulates that a person shall not be convicted of mischief if they act with “legal justification or excuse or colour of right.” If there is an air of reality to the defence, the Crown must refute the defence beyond a reasonable doubt. [ 14 ] An example of a scenario which would exempt an accused from conviction in reference to a legal justification or excuse defence would be a home owner who has been charged with mischief for having caused damage to his own home.

This is because he would have legal justification to do so. Contractual terms and agreements between parties may also give rise to a legal justification or excuse. [ 15 ] The colour of right defence is akin to the mistake of fact doctrine.

As such, it pertains to circumstances where an accused has an honest, albeit unfounded in law, belief in facts, which if they actually existed, would legally justify or excuse the act of mischief committed. [ 16 ] The Court agrees with the Crown that there is no evidence that suggests that the accused had either legal justification, excuse, or colour of right in reference to his inchoate and somewhat nascent verbal agreement with the complainant. He wasn’t an owner or lessee of the property in question. He was just permitted to temporarily store his tools on the premises.

The Court does not agree with Defence’s submission that Constable Robb’s testimony provides evidence of a rental agreement. To be blunt, the Court regards Defence’s argument on this point to be based on fallacious and specious reasoning as there is simply no factual basis for such a conclusion. Simply put, there was nothing in evidence that would require the Crown to refute beyond a reasonable doubt.

[17] As previously mentioned, the accused also argued that he was entitled to an acquittal or dismissal because he was arrestedwithout warrant in circumstances where there were, according to Defence, no reasonable and probable grounds. Defence did not make aCharter motion and request a judicial stay in relation to this subject matter. Indeed, there was no allegation respecting a

section 9arbitrary detention infringement and no request for section 24(1) relief. The Court observes that the onus to raise such an argument is onthe defence. That the Court cannot make such a finding or provide such relief absent Defence’s application. [18] As a consequence, the Court is not in a position to even consider whether the arrest was unlawful. Accordingly, the accused isconvicted of mischief. THE RESISTING ARREST CHARGE [19] The offence of resisting a peace officer is outlined in

section 129 of the Criminal Code as follows: Every one who 1) Resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid ofsuch an officer. [20] The offence of resisting a peace officer is met by establishing that a person either resists or wilfully obstructs a peace officer,knowing that they are a peace officer, or any person lawfully assisting a peace officer, while that officer is within the lawful execution oftheir duty.

Defence concedes that the accused knew that Constables Robb and Rentz were peace officers but argues that they were notwithin the execution of their duty. [21] Defence relied on R. v. Guiboche, 2010 MBPC 48, a case where the accused was acquitted with respect to charges of assaultingtwo Winnipeg Police Service officers because the officers were not engaged in the execution of their duties at the time of the assault.One of the officers had placed a hand on the intoxicated accused “causing” the accused to attempt to strike him. He also kicked thesecond officer at the scene.

The judge determined that the constables were at the purely investigative stage of their duties and were onlyentitled to ask the accused questions, not touch him in conjunction with detention. That the touching was therefore a restraint of theaccused’s liberty in such circumstances and constituted an assault on the accused. Such was not the case in our matter. [22] In our case the two officers clearly had reasonable and probable grounds for arrest. Unlike the Guiboche scenario, where theofficers had arrived post-incident, Constables Rentz and Robb arrived at an incident scene that was on-going.

Both parties described intheir dispatch advice were present and Constable Robb had obtained information from the complainant respecting the mischiefallegation. The accused’s truck was clearly blocking the entrance to the parking lot of the complainant’s business premises. ConstableRobb was able to overhear his partner’s futile attempts to interact with Mr. Gryba. He was aware that the accused was not participatingin conversation and was essentially stonewalling Constable Rentz’s efforts to end the ongoing prima facie criminal act.

He testified thathe had heard Officer Rentz’s offer to move the vehicle as well as his cautionary remark that compliance with his offer would obviate theneed for arrest. And finally, and perhaps most significantly, he heard the “Fuck off” response which effectively signified that Rentz’sefforts to keep and restore the peace were having no effect. [23] Police officers are given broad duties to preserve the peace and prevent crime. Admittedly, the powers conferred on them toexecute those duties are not as broad. Police conduct is not always lawful even though it assists in their assigned duties.

Police conductwill only be lawful if it is authorized by law. This requirement is more onerous when the police are engaged in preventative policing asopposed to investigation of an ongoing crime (see Brown v. Durham Regional Police (1998) (ON CA), 43 O.R. (3d)223, Ontario Court of Appeal at pp. 249-51). [24] A court, when determining whether police conduct has been properly performed, must apply the so-called Waterfield testreferred to by the Supreme Court in R. v. Mann, 2004 SCC 52 at para. 26. A succinct overview of the Supreme Court’s Waterfield dictain Mann is found at para. 50 of Figuerias v.

Toronto Police Services Board, 2015 ONCA 208 as follows: Over time, the Supreme Court has modified the Waterfield test to emphasize the importance of Charter-protected rights.

For example, theWaterfield test was summarized in Mann, at para. 26 as follows: At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, atcommon law, “the preservation of the peace, the prevention of crime, and the protection of life and property” (Dedman, supra, at p. 32).The second stage of the test requires a balance between the competing interests of the police duty and the liberty interests at stake.

Thisaspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion isreasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for theliberty and fundamental dignity of individuals. (Cloutier, supra, at pp. 181-82) The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage.

Specifically, inDedman, supra, at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessedwith regard to the nature of the liberty interfered with and the importance of the public purpose served. [25] In R. v. MacDonald, 2014 SCC 3 at para. 36 the Supreme Court amplified the second stage of the Waterfield test described inMann.

The court explained that a court must consider whether the police action is “reasonably necessary for the carrying out of aparticular duty in light of all the circumstances.” At para. 37 they explain the factors which must be considered at the so-called secondstage of inquiry: 1) The importance of the duty to the public good; 2) The extent to which it is necessary to interfere with liberty to perform the duty; and

3) The degree of interference with the liberty. [ 26 ] In our case the “public good” required timely intervention. An ongoing criminal act was in progress and the situation demanded timely intervention. Failure to take action could have caused a customer, employee or the business owner to take things into their own hands. This could have resulted in violence, someone could have been injured. A police attempt to take possession of the truck’s key in order to move the accused’s vehicle without arrest and the imposition of physical restraints (handcuffing) could conceivably have endangered the officers’ safety. Mr.

Gryba was clearly in no mood to settle matters amicably. [ 27 ] The Court is therefore satisfied that the degree of interference with the accused’s liberty in relation to the warrantless arrest was justified and that therefore Constables Rentz and Robb were acting within their lawful scope of duty when they arrested the accused. This having been said, the Court does not feel that the Guiboche case assists the accused on the facts of our case. Accordingly, the Court convicts the accused on the resist peace officer charge.

THE ASSAULT PEACE OFFICER CHARGES [ 28 ] The offence of assaulting a peace officer is set out in section 270(1) (

a) of the Criminal Code as follows: Every one 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. [ 29 ] The offence of assaulting a peace officer is made out by establishing that a person intentionally applied force to a peace officer without their consent, and by establishing that the complainant was a peace officer engaged in the execution of their duty. The accused concedes knowing that Constables Robb and Rentz were peace officers, but argues that the Crown has not proven that he intended to assault either officer beyond a reasonable doubt.

The Defence contends that the Crown has failed to prove that the accused had the requisite mens rea to make out the offence alleged. [ 30 ] The accused asserts that any contact he made with the two complainants was purely related to defensive resistance to an unlawful detention. For the reasons provided earlier herein the Court has determined the accused’s arrest and subsequent detention to be lawful. Therefore, the only issue in relation to these charges is whether Mr.

Gryba intentionally applied force when he resisted arrest in the context of self-defence i.e. did the officers apply such force in effecting the arrest that he was justified in applying counter-force to defend himself from the officers’ excessive use of force? [ 31 ] Section 34(1) of the Criminal Code states as follows: A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use of threat of force; and (

c) the act committed is reasonable in the circumstances. [ 32 ] In reference to the first element of this defence, the Court agrees with Defence that the evidence establishes that the officers employed force against the accused. It is therefore reasonable to conclude that the accused had reasonable grounds to believe that force was being used against him. [ 33 ] In reference to the second element, the accused submitted that any contact he made with the officers was “for the purpose of defending or protecting himself from the force that Constables Robb and Rentz used against him” (see p. 43 of defence brief).

The accused suggests that there is no proof that he purposely applied force to Constable Robb’s knee and that all his other contact was purely defensive and not calculated to cause harm to the officers. In such respect, Court was reminded that the officers described the accused’s force as being “turtling” and “defensive resistance.” The Crown conceded that a kicking allegation related only by Mr. Pokeza, and not the police complainants, was inherently unreliable as Mr.

Pokeza failed to mention same in his statement to police. [ 34 ] The Court is of the view that the only evidence of a deliberate aggressive assaultive act by the accused was the leg to knee pressure situation described by Constable Robb. Constable Robb’s allegation was corroborated by other witnesses at the scene.

Both civilian and police witnesses all told Court that Constable Robb had cried out in pain and shouted for the accused to stop pressing against his leg, stating “He’s pressing my leg.” The evidence certainly suggests that the accused was, at this early stage of the confrontation, well before the employment of the taser, in an aggressive rather than a defensive frame of mind. That he wanted to fight. Indeed, Constable Robb told Court that the accused had later, after he told Mr.

Gryba that he was going to deploy the taser if he didn’t stop resisting, told him “I don’t care - I fight with you.” And of course it is virtually unimaginable that anyone would tell a police officer to “Fuck off” if he wasn’t extremely angry. For the foregoing reasons, the Court concludes that the Crown has proven that the accused used intentionally offensive as opposed to defensive force in relation to Constable Robb. The Court accordingly convicts the accused of assault on Constable Robb and acquits the accused respecting the second assault charge in reference to Constable Rentz.

THE DISARM PEACE OFFICER CHARGE [ 35 ] This Court is of the view that the evidence relating to this charge is ambiguous. While there is little doubt that the accused reached behind his back when being electrocuted and briefly grabbed the taser, there is no certainty that he did this to disarm Constable Robb. The Court agrees with Defence that the accused may have done this reflexively with the sole purpose of abating or mitigating the pain associated with the taser’s full deployment. As noted by Defence, even Constable Robb agreed that such might have been the case.

The answers received in reference to this subject sustain this exculpatory conclusion:

BOOY: [The accused] wasn’t facing you when he grabbed the taser from behind his back? ROBB: No he was facing the vehicle. BOOY: So it’s reasonable to infer that he might have felt a sharp pain in his back and reached back to remove the source of the pain? ROBB: Sure, I agree with that. [ 36 ] The Crown submitted that there was other evidence upon which the Court could find an intention to disarm the officers: the pulling of the taser towards the accused’s chest at the initial stage of its deployment. The Court again feels that the evidence is somewhat ambiguous from a mens rea standpoint.

It is conceivable that the accused may have been trying to prevent further electrical shocks, not disarm the officer. Accordingly, the Court acquits him in this respect. “Original signed by:” CORRIN, P.J.