Her Majesty the Queen - v. -, 2017 SKPC 81

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 081 Date: September 11, 2017 Information: 90139699 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garren Hansen Appearing: Mr. Luke Coupal For the Crown Mr. Andrew Morrison For the Accused JUDGMENT S.I. ROBINSON , J [ 1 ] Garren Hansen of Beauval, Saskatchewan stands charged that he did on September 18, 2016, at La Ronge, Saskatchewan resist Constable Daniel Lozinski, a peace officer engaged in the execution of his duty, by actively pulling away and refusing to listen to commands, contrary to subsection 129 (

a) of the Criminal Code .

[ 2 ] A trial on Mr. Hansen’s charge was held before me on July 6 and 7, 2017. At the close of the trial, I adjourned the matter to today’s date for decision. Evidence of Constable Daniel Lozinski [ 3 ] Constable Daniel Lozinski of the La Ronge RCMP testified as the Crown’s first witness. He said that on September 18, 2016, just after midnight, he was on patrol with Constable Szkwarek on “Vanessa Crescent” (which I took to mean Vanessa Drive in Air Ronge, Saskatchewan) when they came across a large party of about 150 people.

There had been no complaints about the party at that time, but only 15 minutes later, an upset neighbour called the RCMP to say the party was out of control and that people were in the street drinking and flooding into her yard. In response, Constable Lozinski and Constable Szkwarek returned to the party. [ 4 ] When the two police officers returned to the party, they noted people drinking on the road. They responded to the situation by pouring out some alcohol.

Blade Isbister approached the officers and identified himself as the home owner. (Later evidence indicated that Blade Isbister lived at this residence with his parents, Leonard and Frieda Isbister.) He said he did not want any trouble or a noise bylaw ticket and offered to shut the party down. Constable Lozinski encouraged Blade Isbister to shut the party down, and Blade Isbister went to talk to the other people at the party. [ 5 ] The police officers then noticed a male individual leave the party with an open case of beer and get into the passenger seat of a vehicle.

The police then conducted a “traffic stop” on the vehicle. At this point, the accused approached the police and started screaming at them and saying they would be losing their jobs for making an illegal traffic stop. At the same time, the accused was video recording the police with his cell phone. Constable Lozinski asked the accused to stop screaming. The accused kept on screaming for some time but quit after being warned he would be arrested if he did not stop.

According to Constable Lozinski, the accused and perhaps five or six other people nearby left the area after being asked to do so by Blade Isbister. [ 6 ] Constable Lozinski and Constable Szkwarek then left the party. Later, however, there was another complaint to police from another neighbour that people at the party were very loud and her children could not sleep. Constable Lozinski and Constable Szkwarek therefore returned to the party in the company of two other police officers, Constable Bougie and Constable Kular. The officers spent some time pouring alcohol out and telling people to leave the scene.

The officers then left to conduct patrols around the community. [ 7 ] About 20 minutes later, Constable Lozinski and Constable Szkwarek returned to the party residence and saw the accused standing in the middle of the street in front of the residence. On examination-in-chief, Constable Lozinski described seeing the accused “with an open container of alcohol.” On cross-examination, he corrected this to say he could not actually tell if the container, a beer can, was open or not.

Apart from holding the beer, the accused was apparently not otherwise causing any trouble. [ 8 ] When the accused saw the police, he ran to the back of the residence. The two constables then followed him and found him in the back yard. Constable Lozinski approached the accused and said, “You need to leave the party.” The accused began to scream at Constable Lozinski, saying the officer did not have a warrant to be on the property. Constable Lozinski testified, in examination-in- chief, as follows: “So I advised Mr.

Hansen at that point that he was under arrest for mischief.” [ 9 ] In explaining why he arrested the accused for mischief, Constable Lozinski noted that when the police were at the scene, the accused was the loudest of all the people present.

He confirmed that the accused was indeed screaming when he was found in the back yard. [ 10 ] Constable Lozinski said that when he found the accused in the back yard, the accused had a can of Coors Lite beer in his back pocket. [ 11 ] On cross-examination, Constable Lozinski, referring to when he encountered the accused in the back yard, denied ever hearing the accused say that he was staying at the residence. [ 12 ] Also on cross-examination, Constable Lozinski initially maintained he had told the accused the reason for his arrest.

However, after being shown a video of the accused’s arrest, he agreed that the accused had in fact not been given the reason for his arrest. [ 13 ] Upon advising the accused that he was under arrest, Constable Lozinski grabbed the accused by his left bicep while Constable Szkwarek grabbed his right bicep. The accused then began to actively resist by pulling away. He was warned that if he continued to resist, he would be taken to the ground. Since the accused continued to pull away, Constable Lozinski and Constable Szkwarek took him to the ground with Constable Lozinski landing on top of the accused.

The two officers were not able to get the accused’s hands from under his body, so they radioed for backup and two other officers arrived to assist. After two or three minutes, the police were able to get handcuffs on the accused. The accused then continued to pull away while the police officers were escorting him to a police vehicle. He refused to get into the vehicle voluntarily but was eventually placed in the vehicle after some struggle. [ 14 ] After the accused was in the police vehicle, Constable Lozinski discovered that his own arm had been injured in the struggle with the accused.

He had another officer drive him to the hospital to have it treated. Evidence of Constable Karol Szkwarek

[ 15 ] The Crown also called Constable Karol Szkwarek as a witness. Constable Szkwarek’s testimony was similar to that of Constable Lozinski. He confirmed attending to 114 Vanessa Drive in Air Ronge with Constable Lozinski on more than one occasion on the night in question. Referring to the arrest of the accused, Constable Szkwarek said that Constable Lozinski first told the accused that if he did not leave, he would be arrested for mischief.

He said that Constable Lozinski then did arrest the accused for mischief. [ 16 ] On cross-examination, like Constable Lozinski, Constable Szkwarek maintained that the accused had been screaming in the backyard, stating, “I know he was yelling and screaming in the backyard.” Evidence of the Accused [ 17 ] The accused testified on his own behalf. He is 23 years old. He is from the community of Beauval, Saskatchewan where he works as a custodian and maintenance worker for the Northern Lights School Division.

His prior criminal record consists of a single conviction for possession of marijuana. [ 18 ] Although from Beauval, the accused had once lived in Air Ronge for a period of eight weeks to take a truck driving course. During that stay, he had become friends with one Blade Isbister. [ 19 ] On September 17, 2016, the accused left Beauval and travelled to Air Ronge to stay with Blade Isbister where Blade lived with his parents Leonard and Frieda Isbister at 114 Vanessa Drive. He arrived at Blade’s home with his luggage by about 11:30 p.m. He was to help Blade celebrate his birthday.

Further, he intended to travel to Saskatoon the next day to attend a heavy metal concert at the Credit Union Centre in Saskatoon. He and one or more friends had tickets to hear the bands Sixx: A.M., Five Finger Death Punch and Papa Roach. [ 20 ] The accused testified that the party at Blade Isbister’s residence started small but grew in size to about 100 people. When the police came to quiet down the party, he and Blade tried to escort people off the property.

They asked people to leave the property and also shut off the power supply to the garage to encourage people to go. [ 21 ] The accused admitted that he did start video recording the police when they began searching his friend Gavin Roy’s vehicle. He maintained, however, that he did not leave the yard of Blade Isbister’s home after being requested to stay in the yard by the police. He further maintained that he was not yelling at the police. [ 22 ] At about 2:00 a.m., the accused observed about six people coming down the road as if to return to the party.

The accused told these people that the party was shut down and they could not return. Immediately, the police pulled up from around a corner, and the people who had been on the road ran to the backyard of the house. The accused then walked to the back of the house with the intention of telling Blade Isbister that the police had returned. [ 23 ] The police followed the accused to the back of the house, and Constable Lozinski told him to leave. The accused told Constable Lozinski that he was staying at the residence, but Constable Lozinski told him to leave or he would be arrested.

The accused tried to step away and asked for an explanation, but he was not given one. He then panicked and did not know what to do. He was then thrown to the ground by the police. When he fell, he landed on his stomach and his glasses flew some feet away. On the ground, he kept his arms crossed beneath his chest. On cross-examination, he agreed that he did not submit to his arrest. He said this was because he had done nothing wrong and was afraid of ending up in custody. [ 24 ] The accused admitted that while he was being arrested, he may have raised his voice hoping to get the attention of the home owners.

He denied raising his voice at any time prior to then. [ 25 ] Regarding his consumption of alcohol on the evening in question, he said that he had had at most one or two Coors Lite beer throughout the evening. He did not drink after the police arrived at the party. He did have a Coors Lite with a “twist off cap” in his back pocket, but it had not been opened at any time. [ 26 ] The accused said that after his arrest, he asked Constable Lozinski if he could speak to the “sergeant” as he felt he had been wrongly arrested.

He said that Constable Lozinski said that that was not possible since he, Constable Lozinski, was in charge. [ 27 ] As a result of being arrested and placed in custody, the accused was late getting to the heavy metal concert in Saskatoon. They did not get to Saskatoon until about 9:00 p.m. They did, however, get to hear the last three songs of Sixx: A.M. and then the sets performed by Five Finger Death Punch and Papa Roach. Evidence of Blade Isbister [ 28 ] Blade Isbister testified as a defence witness.

He presented himself as a credible witness doing his best to recount the events of the night in question. [ 29 ] Blade Isbister said that on the evening in question he was having a party to celebrate his 19 th birthday. He had invited the accused and others to attend. The party, which was being held in his parents’ yard and garage, soon became bigger than he had expected it would be. Some of the people attending were very drunk, and at least two guys were being very loud.

When the police arrived for the first time, he spoke to the police and agreed to shut the party down within a half hour. [ 30 ] When the police attended the first time, the police seized alcohol from one Gavin Roy and poured it out. They also told

Gavin Roy to leave his vehicle parked and leave the party. Gavin Roy complied with these instructions. Blade Isbister observed the accused tell the police they could not search Gavin Roy’s vehicle without a warrant. The accused was also using his phone to video record the police.

The police told the accused to stay on the Isbister property, and the accused complied with this request by stopping before he crossed a wooden barrier that marked the edge of the Isbisters’ yard. [ 31 ] Blade Isbister said that after the police attended the first time, he, the accused, his own father Leonard Isbister and Martin Roberts began telling people to leave the party. They set up a barrier of some kind to prevent people from coming back into the yard after they left.

People in the garage were not leaving voluntarily, so they shut the power off to the garage to encourage people to go. [ 32 ] Blade Isbister said that by the time the police came back the last time, things had quieted down with only a few people left. There were five people still in the garage and another six people who had somehow ended up hiding in the bushes. Blade Isbister, his father Leonard Isbister and Martin Roberts were on the house deck.

Just seconds after Blade had kicked an unwelcome partier out of his yard, he saw the accused, along with Kane Gauthier and Vincent Roy from Beauval, walk into the backyard. Soon after, the police arrived to tackle the accused and arrest him.. [ 33 ] Significantly, Blade Isbister did not at any time hear the accused screaming at the police as alleged by Constable Lozinski and Constable Szkwarek. He testified that the accused was conducting himself in a respectful manner at the party and was not showing any signs of intoxication.

He did not at any time see the accused with open liquor outside of the Isbisters’ yard. [ 34 ] Blade Isbister also testified that the police did not at any time make inquiries of him as to who was actually staying at the Isbister residence. Nor did he hear them make any such inquiries of his father Leonard Isbister. Video Evidence [ 35 ] At trial, I allowed the defence to introduce audio-video evidence.

The audio-video evidence, contained in Exhibits D-1 and D-2, consists of video clips made by the accused himself and Blade Isbister on the night in question. [ 36 ] In audio-video clip #9114, 37 seconds in length, the accused started using his phone to record the police as soon as Constable Lozinski approached him in Blade Isbister’s backyard. Constable Lozinski can be heard telling the accused to leave, and the accused can be heard protesting that he was staying at the residence. The accused then says, “Hey, I’m recording everything.” Constable Lozinski responds by saying, “You can record all you want.

I’m telling you to leave or you’ll be arrested. Okay, you’re under arrest.” The accused protests further, saying,“Hey, no, no, no, no.” Then Constable Lozinski instructs the accused, “Put your hands behind your back.” The accused again protests, saying, “Why? I’m staying here. How could you guys kick me out of where I’m staying?” The clip then ends with the accused being taken to the ground by police.

The audio portion of the clip makes it clear that there was no time interval between Constable Lozinski telling the accused to leave or be arrested and the actual arrest itself. [ 37 ] Audio-video clip #1197, 31 seconds in length, was recorded by Blade Isibister from a deck overlooking the Isbisters’ back yard. It apparently starts within seconds after the end of audio-video clip #9114. It shows the accused on the ground with Constable Lozinski telling the accused to give him his hand. The accused can be heard repeating that he is not resisting.

Neither Constable Lozinski nor the accused is speaking in a loud tone. Of note, however, Blade Isbister’s father Leonard Isbister, apparently standing near Blade on the deck, can be heard protesting the arrest quite loudly. [ 38 ] Audio-video clip #1198, 43 seconds in length, was also recorded by Blade Isbister and continues on from the end of clip #1197. It shows the accused on the ground and police officers attempting to put handcuffs on the accused. Again, Blade Isbister’s father can be heard protesting loudly.

The clip ends soon after the police have succeeded in handcuffing the accused. [ 39 ] The audio-video clips show only a small part of the evening in question. They nonetheless constitute valuable evidence in these proceedings. The audio portions of the clips are particularly useful. The clips confirm some key points. First, they establish that the accused had in fact told Constable Lozinski that he was staying at the Isbister residence.

Secondly, notwithstanding the evidence of Constable Lozinski and Constable Szkwarek, they show that the accused was not at any time shouting or screaming in the Isbisters’ backyard prior to his arrest. (I make this finding despite any short gap between the different audio-video clips.) Thirdly, they show that the accused was given no time to respond to Constable Lozinski’s ultimatum that he leave or be arrested. And fourthly, they show that, again notwithstanding the evidence of Constable Lozinski and Constable Szkwarek, the accused was never told that he was being arrested for mischief.

Issues [ 40 ] The main issue here is whether the police were in the execution of their duty when they arrested the accused. They were clearly in the execution of their duty while they sought to insure that the noisy party at the Isbisters’ residence was made quiet. However, it does not necessarily follow that they continued in the execution of their duty when they arrested the accused. If they did not have a right to arrest him pursuant to

section 495 of the Criminal Code , their actions to do so would not fall within the execution of duty contemplated by subsection 129 (

a) of the Criminal Code . The accused accordingly would have a right to resist his arrest and would have a defence to his current charge. [ 41 ] On the facts before me, the Crown has not proven that the police had a valid reason to arrest the accused. As I understand it, the Crown’s position is that the accused was being arrested for mischief. However, the police did not find the accused committing that offence nor did they have reasonable grounds to believe that he had at any time committed that offence. Had the Crown been able to prove that the accused had been screaming prior to his arrest, I might have found that the accused had committed mischief by interfering

with the lawful enjoyment of property. The Isbisters no doubt had neighbours who would have their night’s sleep disturbed by screaming. But I am unable to conclude that the accused was screaming. Indeed, on the whole of the evidence, I conclude that he was in fact not screaming at any time on the evening in question. In the audio-video recordings, the accused can be heard speaking in measured tones notwithstanding the somewhat charged atmosphere.

In light of the testimony of the accused and Blade Isbister and, most notably, the audio-video evidence, I am simply unable to accept the evidence of Constable Lozinski and Constable Szkwarek that the accused was screaming. [ 42 ] Apart from the allegation of screaming, there is no suggestion that the accused was doing anything else that constituted an offence for which he could be arrested.

Refusing to leave a residence where he was an invited guest, without more, could not constitute an offence. [ 43 ] Since the police did not have a right to arrest the accused, I am of the view that he was within his rights to resist the police efforts to take him into custody. Accordingly, I find him not guilty of resisting arrest. [ 44 ] Even if the police had a right to arrest the accused, Constable Lozinski failed to make a proper arrest in that he did not inform the accused of the reason for his arrest.

It is well established law that a police officer making an arrest must ordinarily inform the person arrested of the reason for the arrest. In R v Evans , [1991] S.C.R. 869 (S.C.C.), Sopinka J (concurring in the result), at paragraph 2, wrote:

Section 10(

a) and (

b) set out very fundamental rights of a person arrested or detained. The instructions to the authorities which they contain are relatively simple. In each case, the detainee is to be “informed”. In the case of s. 10(a), the right is to be informed of the reasons for the arrest or detention. The right to be informed of the true grounds for the arrest or detention is firmly rooted in the common law which required that the detainee be informed in sufficient detail that he or she “knows in substance the reason why it is claimed that this restraint should be imposed” ( Christie v.

Leachinsky, [1947] A.C. 573, at pp. 587-588) . When an arrest is made pursuant to a warrant, this is set out in writing in the warrant. An arrest without warrant is only lawful if the type of information which would have been contained in the warrant is conveyed orally. . . . [ 45 ] In the present case, although Constable Lozinski and Constable Szkwarek both initially testified that the accused was told he was under arrest for mischief, the audio-video recordings make it clear that this did not happen prior to the accused being arrested.

The failure to inform the accused as to the reason for his arrest took the officers outside the execution of their duty. This gave the accused a right to resist their efforts to take him into custody. As such, even if the officers did have a valid reason for arresting the accused, given their failure to provide him with any such reason, I would still find him not guilty of resisting arrest. [ 46 ] During closing arguments, there was some discussion as to whether the accused’s actions would amount to resisting within the meaning of

section 129 of the Criminal Code . I could perhaps find that his physical efforts to avoid being handcuffed did amount to resisting, but given my earlier findings, I do not need to decide this issue. Other Comments [ 47 ] I am of the view that Constable Lozinski and Constable Szkwarek should have taken more time to assess the situation they found on their last visit to the Isbister residence. More discussion with those present might have shown that things had settled down at the Isbister party and that there was no need for further police action.

They should then have realized that they did not have grounds to arrest the accused. However, that said, I can appreciate why the officers might have acted in the manner they did. They were dealing with two separate complaints from Air Ronge citizens who wanted a large and loud outdoor party shut down. When they had their final confrontation with the accused, they were on their fourth visit to the party location. Some frustration on their

part is understandable. [ 48 ] I am also of the view that the accused may want to spend some time thinking about his attitude towards the police. On the witness stand, he said that because of what he sees on the internet, he tries to video record any police actions he sees to monitor any possible police wrongdoing. He is certainly free to do so as long as he does not interfere unduly with the work the police have to do. Indeed, the audio-video recordings presented in this case were very useful.

I would suggest, however, that rather than presupposing police wrongdoing, the accused would do well to see the police as representing all citizens as they work to insure our communities are peaceful places to live. [ 49 ] I thank both Crown and defence counsel for their submissions in this case. ____________________________________ S.I. Robinson, J