Her Majesty the Queen - v. -, 2012 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 028 Date: February 8, 2012 Information: 38585494 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon D. Tidball Appearing: Mr. William Collins For the Crown Mr. Foster Weisgerber For the Accused JUDGMENT M. HINDS , J BACKGROUND [1] On April 24, 2011 at Regina, Saskatchewan, Brandon Tidball was charged with the following offence:

(1) Resist Constable Keshane, a peace officer engaged in the execution of his duty to wit, the lawful arrest of Brandon Tidball by struggling contrary to

section 129 (

a) of the Criminal Code .

[2] The matter proceeded to trial with four police witnesses called for the Crown and two witnesses for the defence. [3] The issue before the Court concerns whether Constable Keshane was engaged in the execution of his duty when he and other officers grabbed hold of Mr. Tidball and arrested him for public intoxication. The Crown took the position that when Constable Keshane grabbed Mr. Tidball he was engaged in the execution of his duty and that the arrest of Mr. Tidball was lawful. The defence took the position that Constable Keshane was not engaged in the execution of his duty when he grabbed and arrested Mr.

Tidball for being intoxicated in public and hence Mr. Tidball was permitted to resist Constable Keshane’s unlawful arrest of him. In this case , I decided that the Crown failed to prove that Constable Keshane was acting in the execution of his duty when he grabbed and arrested Mr. Tidball for public intoxication. As a result I acquitted Mr. Tidball. CROWN EVIDENCE Constable Stewart Keshane [5] Constable Stewart Keshane is a five year member of the Regina Police Service. He is 5' 9" tall and weighs 175 to 180 pounds.

He was working with Constable Mountain on April 24, 2011 and was dispatched to Habanos Nightclub around 2:00 a.m. The police dispatcher advised there was a fight going on in and outside Habanos and a male wearing an orange shirt was the problem. This male had been asked to leave and did not leave. [6] When Constables Keshane and Mountain arrived at Habanos, they parked their patrol car in front of the nightclub. Constable Keshane testified that he observed a male wearing an orange shirt standing on the sidewalk in front of the entrance way of Habanos, with his head inside one of the doors.

This individual was Brandon Tidball, who appeared to be communicating with someone inside. Constable Keshane testified that he went inside the ground floor entryway to Habanos. Once inside, Constable Keshane testified that he observed a bouncer, located at the top of some stairs, who pointed to Mr. Tidball. [7] Constable Keshane then turned his attention to Mr. Tidball. Constable Keshane testified that he told Mr. Tidball that “he needed to go”. Mr. Tidball responded by stepping back onto the sidewalk. Constable Keshane testified that he knew Mr. Tidball was intoxicated, as Mr.

Tidball’s eyes were bloodshot and he was unsteady on his feet. [8] Constable Keshane followed Mr. Tidball outside Habanos onto the sidewalk and told Mr. Tidball that he needed to leave and go home. Mr. Tidball responded immediately in a loud voice and said “You can’t do anything.” Constable Keshane told Mr. Tidball that he needed to leave and go home, several times. Constable Keshane testified that Mr. Tidball became argumentative and confrontational with him. Constable Keshane observed Mr. Tidball walk up to him and his partner, Constable Mountain and come to a stop within two feet of him.

Constable Keshane testified in-chief that he felt threatened by Mr. Tidball, who he described as a large muscular man, and told him to get out of his space. Mr. Tidball said “What can you do to me?” and then raised his arms up from his side of his body and lifted his hands, palms facing towards Constable Keshane, to shoulder level. [9] Constable Keshane testified in-chief that after Mr. Tidball approached him and raised his hands he reacted by grabbing Mr. Tidball’s right arm and told him that “You are under arrest for public intox”. Mr. Tidball responded by ripping his arm away from Constable Keshane’s grip.

Constable Keshane attempted to grab Mr. Tidball’s arm again and he and four other police officers including Constables Mountain, Lusak, Stewart and Decterow, took Mr. Tidball to the ground. Constable Keshane testified that he told Mr. Tidball to stop resisting, however, a struggle ensued between Mr. Tidball and the officers on the sidewalk. Constable Keshane testified that Mr. Tidball was very strong, that one officer got a handcuff on Mr. Tidball’s left hand, however, Mr. Tidball managed to keep his right hand under his own belly. Constable Keshane testified that he repeatedly told Mr.

Tidball to give him his right hand. When he did not, Constable Keshane kneed Mr. Tidball in his left rib area. Mr. Tidball eventually gave up his right hand, which Constable Keshane handcuffed. After the police got control of Mr. Tidball, he was taken to the patrol car where he was read his rights and warnings and subsequently taken to the police station where he became more cooperative.

[10] Constable Keshane testified he used force against Mr. Tidball because Mr. Tidball was a large muscular man, he felt threatened, there was a large group outside Habanos and he thought he had to make an arrest quickly, so that no one else got involved, in the event Mr. Tidball had friends nearby. [11] On cross-examination Constable Keshane admitted that when he arrived at Habanos Mr. Tidball was not causing any problems and that when he entered Habanos Mr. Tidball complied with his request to step back onto the sidewalk. Constable Keshane testified that he wanted Mr.

Tidball to keep the peace and leave the area. Constable Keshane then followed Mr. Tidball outside Habanos and told him from a distance of five to six feet, that he had to go home at which time Mr. Tidball became argumentative and displayed “belligerent behaviour” towards the officers. [12] When Mr. Tidball came within two feet of him, and said “What can you do to me?, Constable Keshane testified on cross- examination that he interpreted Mr. Tidball’s comment to mean that the police had no authority over him. He also testified that he did not take Mr. Tidball’s comment as a challenge.

Constable Robert Mountain [13] Constable Robert Mountain has been with the Regina Police Service for two years. He was partnered with Constable Keshane in the early morning hours of April 24, 2011. Constable Mountain testified that just before 2:00 a.m. he and Constable Keshane were dispatched to Habanos Nightclub regarding a male who was wearing an orange shirt who had been fighting with the staff. Habanos staff wanted the male removed. On arrival at Habanos, Constable Mountain observed a large crowd outside the nightclub on the sidewalk. He also observed Mr.

Tidball in the foyer of Habanos wearing an orange shirt. [14] As the two officers approached the foyer, Mr. Tidball exited the nightclub. They first encountered Mr. Tidball from a distance of about two feet, just outside the entrance to the nightclub. Constable Keshane told Mr. Tidball he needed to leave the nightclub. Constable Mountain testified that at first Mr. Tidball did not respond. Constable Keshane once again told Mr. Tidball that he needed to leave the nightclub. Constable Mountain testified that Mr.

Tidball then raised his arms and hands in the air and said “What are you going to do about it?” Constable Mountain also testified that Mr. Tidball then moved forward and proceeded within inches of the two officers and slightly bumped his chest against Constable Mountain’s right shoulder. Constable Mountain testified that he felt threatened by Mr. Tidball as he was bigger than him. [15] Constable Mountain testified that the two officers immediately grabbed Mr. Tidball. He testified that he believed that Constable Keshane mentioned to Mr. Tidball that he was under arrest for “public intox”.

Constable Mountain grabbed Mr. Tidball’s left arm and placed it in a wrist lock position. Mr. Tidball struggled to free his left arm and wrist, however, Constable Mountain held on. The two officers took Mr. Tidball to the wall next to the doorway to Habanos. At that time Officers Stewart, Lusak and Decterow joined in and helped take Mr. Tidball to the ground. The police officers struggled to gain control of Mr. Tidball. During the struggle he heard one of the other officers say that Mr. Tidball had an Asp (the brand name of an expandable police baton) in his right hand.

Constable Mountain admitted that he did not see an Asp during the struggle with Mr. Tidball. [16] Constable Mountain testified in-chief that he was of the view that Mr. Tidball was low to moderately intoxicated, as he observed that Mr. Tidball’s speech was slurred and had glassy red eyes. He added that Mr. Tidball was stable on his feet. [17] On cross-examination Constable Mountain confirmed that he first saw Mr. Tidball inside the foyer of Habanos and as the two officers approached, Mr. Tidball stepped outside the nightclub.

He was certain that neither he or Constable Keshane went into the foyer area of Habanos or had any dealings with Mr. Tidball prior to him exiting the club. He estimated that the police encounter with Mr. Tidball prior to the arrest took approximately ten seconds. He further testified that when he and Constable Keshane first approached Mr. Tidball they were two feet away from him. Mr. Tidball then raised his arms and hands and bumped his chest up against Constable Mountain. [18] On cross-examination Constable Mountain initially testified that he did not see Constable Keshane knee Mr. Tidball in the head.

After reviewing his police notes of the incident, however, Constable Mountain admitted that his notes are accurate and reveal that Constable Keshane kneed Mr. Tidball in the head.

Constable Alicia Stewart [19] Constable Stewart has been a member of the Regina Police Service for two years. On April 24, 2011, she was working in a patrol vehicle with Constable Decterow and attended at Habanos Nightclub just after 2:00 a.m. regarding a male in an orange shirt involved in a fight. Upon arriving at Habanos she observed Constables Keshane and Mountain standing on the sidewalk beside the front door of the club facing Brandon Tidball. She was walking towards the backside of the officers and was about ten to fifteen feet away.

Constable Stewart testified in-chief that she heard Constable Keshane tell Mr. Tidball to leave. She then saw Mr. Tidball raise both of his hands to shoulder height and then jerked his body forward, as if he was taking a step towards Constables Keshane and Mountain. She next observed Constables Keshane and Mountain, who were in close proximity to Mr. Tidball, grab Mr. Tidball’s hands. At this point Constables Stewart and Decterow joined in to help get Mr. Tidball to the ground. Constable Stewart testified that she was on Mr. Tidball’s right side and attempted to gain control of Mr. Tidball’s right arm.

She was unsuccessful. She testified that she told Mr. Tidball once or twice to “stop resisting”. Mr. Tidball responded by physically raising his arms. Eventually Mr. Tidball was rolled over onto his stomach and handcuffed. During the struggle with Mr. Tidball she heard her partner Constable Decterow say that Mr. Tidball had a baton. She did not make any observations regarding a baton, however, after the struggle with Mr. Tidball ended. [20] After Mr. Tidball was placed in handcuffs Constables Mountain and Stewart took him to a patrol car and placed him against the trunk. At this time Mr.

Tidball swung his right shoulder back and struck Constable Stewart causing her to take a step backwards. After Mr. Tidball was placed inside the back of the patrol car, Constable Stewart noticed that her baton was missing. Constable Lusak subsequently returned her baton to her. [21] On cross-examination Constable Stewart testified that she did not observe Mr. Tidball to make physical contact with the two officers prior to being grabbed. In addition, she testified that she never heard anyone tell Mr. Tidball he was under arrest.

Constable Dean Lusak [22] Constable Dean Lusak has been employed by the Regina Police Service for ten years. He also attended Habanos Nightclub on April 24, 2011. On arrival at Habanos Constable Lusak observed Constables Keshane and Mountain facing Mr. Tidball on the sidewalk. He testified that Mr. Tidball “towered over them”. He also testified that he noticed that Mr. Tidball had red glassy eyes and was using one of the nightclub doors as a support. Constable Lusak overheard Constable Keshane tell Mr. Tidball that he needed to leave. Constable Lusak heard Mr.

Tidball say “Why?” to which Constable Keshane said, “You were asked by the staff to leave and now I am asking you to leave so there is no disturbance in the area”. He then observed Mr. Tidball to become aggressive and kind of “strutted” by pushing his chest out towards Constable Keshane. He saw Mr. Tidball come within three feet of Constable Keshane. He did not see Mr. Tidball make any physical contact with the two officers. He then heard Mr. Tidball say, “I’m not leaving.” [23] Constable Lusak next observed Constables Keshane and Mountain grab hold of Mr. Tidball. Mr.

Tidball pulled back when grabbed by the officers and appeared to swing his right arm towards the officers. At this point Constable Lusak was about four to five feet behind the officers. Initially Constables Keshane, Mountain and Lusak took Mr. Tidball to the wall of the building. Constables Stewart and Decterow then joined in. [24] Initially Mr. Tidball went to the ground on his right side. His right arm was under his body. His left arm was being held by Constable Mountain. Constable Lusak heard someone say “He’s got a baton”. Constable Lusak did not see a baton in Mr. Tidball’s hands.

He testified that he kneed Mr. Tidball in the back three times. [25] On cross-examination Constable Lusak testified when he saw Mr. Tidball, he was leaning against the inside of one of the front doors to Habanos, which was open. He further testified that he never heard anyone “put Mr. Tidball under arrest”. He also admitted that he did not smell alcohol on Mr. Tidball prior to the “physical melee”. [26] On cross-examination Constable Lusak testified that he estimated that the struggle on the

ground with Mr. Tidball took approximately two minutes. DEFENCE EVIDENCE Paul Waldu [27] Paul Waldu, age 27, is an acquaintance of Mr. Tidball. He and Mr. Tidball went to the same high school and played football together when they were thirteen to fourteen years of age. Mr. Waldu resides in Regina part of the year where he works as a realtor. The other part of the year he plays professional football with the Montreal Alouettes. [28] On April 23 and 24, 2011, Mr. Waldu was attending some nightclubs in Regina. He testified that between midnight and 1:00 a.m. he was walking on a sidewalk outside Habanos Nightclub.

Mr. Waldu observed Mr. Tidball step outside the doors of Habanos and was approached by four to six police officers. At the time he was about ten feet away from Mr. Tidball and he heard Mr. Tidball say “I’m on private property, what are you arresting me for? I didn’t do anything.” Mr. Waldu then observed Mr. Tidball to raise his arms to the level of his shoulders with his palms open. Mr. Waldu testified that he next observed the police approach Mr. Tidball and attempt to grab him by his arms and waist. Mr. Waldu heard Mr. Tidball say, “What are you arresting me for?” Mr. Waldu told Mr.

Tidball to “Just hit the ground.” Mr. Tidball hit the ground. Mr. Waldu observed the officers pin him down and one officer had his knee in the centre of Mr. Tidball’s back, telling Mr. Tidball to give him his arm. He added that he heard Mr. Tidball say “I am trying to put my arm behind my back.” Mr. Waldu testified in-chief that “It was a scuffle, they all approached him at once. He must of done something very drastic inside.” [29] Mr. Waldu testified that he had consumed three one ounce drinks of vodka and tonic prior to this incident outside Habanos. Mr.

Waldu testified in-chief that during the exchange between Mr. Tidball and the officers he did not hear any officer say that Mr. Tidball was under arrest. [30] On cross-examination Mr. Waldu testified that he was aware Mr. Tidball had been charged with an offence and that while he was concerned about what he saw, he did not go to the police station to make a statement. Mr. Waldu testified that he was not obliged to go to the police respecting what he saw that early morning. When Mr. Tidball asked him to be a witness at this trial, he agreed to do so. [31] On cross-examination Mr.

Waldu testified that he was previously at Gambo’s Nightclub and was on route to The Drink Nightclub when this occurred. He testified that he usually changes nightclubs around midnight and thought this incident occurred between midnight and 1:00 a.m. Mr. Waldu further testified that he thought the leading officer approached Mr. Tidball just after he stepped out of Habanos and was a couple of feet from Mr. Tidball. He added that the police officers were between him and Mr. Tidball. [32] Mr. Waldu admitted on cross-examination that Mr.

Tidball was resisting the police when they tried to take him to the ground and that he was struggling with the police when he was on the ground. He also testified that there were probably thirty people outside Habanos when this incident occurred. Brandon Tidball [33] Brandon Tidball is 26 years of age. He is six feet tall and weighs 215 pounds. He weighed 222 pounds on April 24, 2011. Mr. Tidball is self-employed as a painter. [34] During the evening of April 23, 2011, Mr. Tidball and his girlfriend, Cindy Schissler were at his dad’s home visiting his father, Dean Tidball and his girlfriend, Natalia. Mr.

Tidball testified that he consumed 5 or 6 beer over the course of approximately six hours, from 6:00 p.m. until 11:30 or 12:00 midnight. This group of four people, including Mr. Tidball, went to Habanos Nightclub around 12:30 a.m. on April 24, 2011. Around 12:45 a.m. Mr. Tidball saw a man hit his father, Dean in the head. The man then ran away. This incident angered Brandon Tidball. Mr. Tidball described how bouncers from Habanos immediately grabbed him and ushered him into the kitchen area of Habanos and was told to leave Habanos. At first Mr.

Tidball objected indicating his girlfriend and his father were at Habanos. Mr. Tidball then left Habanos out the back door. He then went around to the front of Habanos and went through the front

doors to the top of a flight of stairs where he met his girlfriend Cindy Schissler. Mr. Tidball and his girlfriend decided to leave Habanos. He testified that they walked down the stairs, opened the front door and stepped out onto the sidewalk. [35] Brandon Tidball testified that as he stepped through the front door of Habanos onto the sidewalk he was jumped by four or five police officers. Mr. Tidball testified that a few police officers approached him and tried to grab him. He tensed up. He recalled having one or two police officers on each arm and one officer in front of him.

He further recalled being taken to the ground and kneed in the head and ribs. He testified that when he first hit the ground he was on his stomach and one arm was underneath him. [36] Mr. Tidball was adamant that he was not resisting arrest. He stated “I have no flexibility in putting my arms behind my back”. He attributed his lack of flexibility to injuries he has sustained to his shoulders. Mr. Tidball testified that he told the officers “I’m not resisting.” [37] Mr. Tidball was adamant that prior to being grabbed by the police no one told him he was under arrest.

He testified that when he was put into the patrol car the police told him he was under arrest for intoxication. [38] On cross-examination Mr. Tidball testified that when his father was hit on the head and he was grabbed by the bouncers “It was like it was planned.” He added that the owner of Habanos has a “beef” with his girlfriend Cindy. Mr. Tidball testified that the bouncers played hockey with him when he was younger. Mr. Tidball also testified that the bouncers had a “beef” with his brother. He denied that he was fighting with the bouncers inside Habanos.

He stated the bouncers were calm and told him “just come with us”, which he did. He acknowledged that he was very angry with what had just happened to his father. [39] On cross-examination Mr. Tidball testified that after he went out the back door of Habanos he went around to the front of building. He then entered the front doors of the club and proceeded up the flight of stairs. He was adamant that there was no line up to get into Habanos and there was no bouncer at the top of the stairs where he met his girlfriend, Cindy.

He added that at no time did a police officer come into the entryway to Habanos. [40] When Mr. Tidball exited Habanos he testified that the police were “horseshoed around the whole front entrance.” No words were spoken to him before he was jumped by the police. He denied that the police told him to leave, that he was under arrest or that he thrust his chest into the police officers. While the police were grabbing his arms he recalls stepping back, lifting his arms up and saying “What is going on?

Why am I being arrested?” He added that the only time police said anything to him was when he was on the ground and he was told to stop resisting. [41] On cross-examination Mr. Tidball testified that he was enraged after the police were on top of him and he was handcuffed. As to the effects of alcohol on him, Mr. Tidball testified that he was his normal self and that he was not feeling the effects of alcohol that night. Overview of the Evidence before the Court - Factual Determination [42] The uncontradicted evidence before the Court reveals that on April 24, 2011, Mr.

Tidball went to Habanos Nightclub with his girlfriend, father and his father’s girlfriend. Mr. Tidball consumed 5 or 6 beer over approximately a period of six hours prior to arriving at Habanos. Within approximately fifteen minutes of arriving at the nightclub, Mr. Tidball’s father was hit in the face by an individual who then took off. Mr. Tidball was upset and angered by this. Mr. Tidball was quickly ushered out the back door of Habanos by bouncers. Mr. Tidball went around to the front doors of Habanos. He went inside the foyer and up some stairs where he met his girlfriend. Mr.

Tidball and his girlfriend then exited Habanos through the front door. Soon, thereafter, Mr. Tidball was taken to the ground on the sidewalk outside the entrance to Habanos Nightclub by five police officers, was handcuffed, placed in the back of a patrol car and taken to the police station. He was subsequently charged with the offence of resist Constable Keshane, a peace officer engaged in the execution of his duty to wit, the lawful arrest of Brandon Tidball by struggling contrary to

section 129 (

a) of the Criminal Code .

[43] The evidence of exactly what occurred prior to the physical encounter between Mr. Tidball and the police outside of Habanos is full of contradictions, between the account of Mr. Tidball and the police officers and also amongst the police officers themselves. While some contradictions amongst the police witnesses is expected, the nature and extent of the contradictions is concerning to this Court. For instance the police witnesses could not agree upon: 1) The initial location of Mr. Tidball when the police arrived on scene.

Constable Keshane observed him to be located on the sidewalk just outside Habanos with his head situated inside one of the doors. His partner, Constable Mountain, however, initially observed Mr. Tidball to be inside the foyer of Habanos and about to make his exit. 2) Whether any police officer entered Habanos prior to speaking to Mr. Tidball. Constable Keshane maintained that he went inside the foyer of Habanos, made eye contact with a bouncer at the top of some stairs who pointed to Mr. Tidball.

Constable Mountain maintained that neither he or his partner Constable Keshane went inside the foyer. 3) Where Constable Keshane was situated when he first spoke to Mr. Tidball. Constable Keshane testified that he was inside the foyer. Constable Mountain testified that Constable Keshane was on the sidewalk beside him, when he first spoke to Mr. Tidball who had just exited Habanos. 4) Police observations regarding Mr. Tidball ’ s level of intoxication, prior to arrest. Constables Keshane, Mountain and Lusak all observed that Mr. Tidball’s eyes were red. Constable Keshane maintained that Mr.

Tidball was unsteady on his feet. Constable Mountain maintained that Mr. Tidball was stable on his feet. Constable Mountain also observed that Mr. Tidball’s speech was slurred. Constable Lusak, alone, observed that Mr. Tidball was supporting himself by leaning against the inside portion of one of the doors to Habanos which was opened. Oddly, no police officer testified that they smelled the odour of beverage alcohol coming from Mr. Tidball prior to Constable Keshane’s arrest of Mr. Tidball for “public intox”. 5) The distance between Constables Keshane and Mountain and Mr. Tidball prior to arrest.

Constable Keshane testified that Mr. Tidball came from five or six feet away to within approximately two feet of him and raised his hands to shoulder level. Constable Mountain testified that Mr. Tidball was initially two feet away from the two officers and he moved forward within inches of the two officers and gave him a shoulder bump. Constable Lusak testified that Mr. Tidball came within three feet of the officers. 6) Whether Mr. Tidball made any physical contact with Constables Keshane and Mountain prior to arrest. Constable Keshane testified that Mr. Tidball stopped before making contact with him.

Constable Mountain testified that Mr. Tidball made physical contact with him (slight shoulder bump). Constables Lusak and Stewart testified that they did not see Mr. Tidball make any physical contact with the officers. 7) What, if anything police said to Mr. Tidball when he was grabbed by Constables Keshane and Mountain. Constable Keshane testified that he told Mr. Tidball he was under arrest for “public intox”. His partner, Constable Mountain testified that he believed that Constable Keshane mentioned to Mr. Tidball that he was under arrest for “public intox”.

Constable Lusak testified that he never heard anyone put Mr. Tidball under arrest. Constable Stewart testified that she never heard anyone tell Mr. Tidball he was under arrest. [44] In my view all of these inconsistencies negatively affect the credibility and reliability of the police evidence as a whole. Police Evidence respecting the Asp (police baton) [45] The Court also heard from each of the police witnesses regarding the struggle which ensued between police and Mr. Tidball on the sidewalk.

A good deal of hearsay evidence was provided to the Court regarding one female officer involved in the struggle, presumably Constable Decterow, saying “He has an Asp” and the concern this presented for officer safety. Constable Decterow, however, did not testify. Moreover, not one of the police officers that did testify was able to say that they saw Mr. Tidball touch or handle the Asp. As a result the Court will disregard any testimony relating to the Asp. The Evidence of Paul Waldu

[46] Paul Waldu testified that he was walking past Habanos between midnight and 1:00 a.m. on April 24, 2011 and observed an incident involving Mr. Tidball and the police. Mr. Waldu based his estimate of time on his past practice of moving from one nightclub to another around midnight. I am of the view that the police evidence as to the time the incident took place around 2:00 a.m. is more reliable that Mr. Waldu’s account. While I generally found Mr. Waldu to be a straightforward and credible witness, I am of the view that he did not see the entire encounter between Mr. Tidball and the police outside of Habanos.

Mr. Tidball ’ s evidence [47] I am also of the view that the evidence of Mr. Tidball is lacking credibility and reliability. Mr. Tidball admits that he consumed five or six beer earlier that evening and was angered by the incident involving his father being assaulted inside Habanos. Mr. Tidball was also angered by his ejection from Habanos and enraged by his treatment by the police. Overall, Mr. Tidball presented as an aggressive man who easily takes offence to the words and actions of others and who is accustomed to confrontations with others. [48] I am of the view that Mr.

Tidball’s perception and memory of the events of the early morning hours of April 24, 2011 were negatively affected by his consumption of alcohol and his anger. For example, Mr. Tidball testified that he arrived at Habanos around 12:30 a.m. and that his father was assaulted within approximately 15 minutes. Mr. Tidball was very quickly ushered out the back door of Habanos and came back to the front doors of Habanos within a few minutes. Hence, according to Mr. Tidball’s evidence his encounter with the police would have to have occurred around 1:00 a.m.

This is at odds with the testimony of the police who all indicated that they were dispatched to Habanos shortly before 2:00 a.m. While I have expressed my concerns about the credibility and reliability of police evidence, I am of the view that the police evidence as to the time of their encounter with Mr. Tidball taking place around 2:00 a.m. is more credible and reliable than Mr. Tidball’s account. [49] I am also of the view that Mr. Tidball’s entire account of his encounter with police is not credible or reliable.

The alcohol he had consumed and the anger he was experiencing negatively affected his perception of events outside Habanos. For instance, I simply do not believe that police formed a horseshoe around the front doors of Habanos and immediately jumped on Mr. Tidball when he exited the building. I am also of the view that Mr. Tidball is mistaken when he stated that the police said nothing to him prior to making physical contact with him. [50] It is trite law that a fact finder can accept all, part or some of the evidence before him. In this case I find as follows: Constables Keshane and Mountain approached Mr.

Tidball on the sidewalk outside Habanos after he exited through one of the front doors. The two officers came within approximately five or six feet of Mr. Tidball. Constable Keshane told Mr. Tidball to leave and go home. Mr. Tidball took exception to this suggestion and told Constables Keshane and Mountain that “You can’t do anything.” Constable Keshane once again told Mr. Tidball that he needed to leave and go home. Mr. Tidball became more confrontational with the two officers. Mr. Tidball walked towards Constables Keshane and Mountain and came to a stop within approximately two feet of them.

Constable Keshane found this intrusive and told Mr. Tidball to get out of his space. Mr. Tidball said “ What can you do to me?” and then raised his arms up from his side of his body and lifted his hands, to shoulder level. Mr. Tidball’s palms were facing the officers. Both officers responded by grabbing hold of Mr. Tidball. Constable Keshane said “You are under arrest for public intox”. The two officers attempted to gain control of Mr. Tidball and handcuff him. Almost immediately, Officers Lusak, Stewart and Decterow joined the fray. After several minutes the police were able to gain control of Mr.

Tidball and place handcuffs on him behind his back. Mr. Tidball was subsequently placed in the back of a patrol car. THE APPLICABLE LEGISLATION [51] The offence of resisting a peace officer engaged in the lawful execution of his duty is set out in

section 129 of the Criminal Code , R.S.C. 1985, c. C-46, which states, in part: Offences relating to public or peace officer

129 Every one who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, *** is guilty of (

d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. [52] In Saskatchewan, the power to arrest intoxicated persons is found in The Alcohol and Gaming Regulations Act , S.S. 1997, S.S. 1997, c. A-18.001 ( AGRA ) and The

Summary Offence Procedure Act, S.S. 1990-91, c. S-63.1 ( SOPA ). [53] Sections 126 and 149 of AGRA, read as follows: Intoxicated in public place 126 No person shall be in an intoxicated condition in a public place or in a permitted premises. Arrest without warrant 149 Any officer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or the regulations. [54] Sections 52 and 53 of SOPA read in part as follows: Temporary custody for intoxicated persons, “ custodian ” 52(2) Subject to

section 53 , where: (

a) a police officer finds in a public place a person who the police officer reasonably believes: (

i) is intoxicated due to the use of alcohol; and (ii) if not detained, is likely to cause injury to himself or herself or be a danger or disturbance to others; and (

b) there is, in the opinion of the police officer, no other person capable of and willing to take care of the person mentioned in clause (a); the police officer may take the person into custody and deal with that person in accordance with this

section in lieu of proceeding pursuant to

section 139 of The Alcohol and Gaming Regulation Act, 1997 with respect to an offence against

section 126 or 127 of that Act or a provision respecting intoxication in a bylaw. 53 Where: (

a) a peace officer finds in a public place a person who the peace officer reasonably believes is intoxicated due to the use of alcohol and; (

b) the person has been taken into custody pursuant to

section 52 on two or more previous occasions in the preceding 12 month period; the peace officer may, in addition to taking the person into custody and dealing with that person according to

section 52, proceed pursuant to

section 139 of The Alcohol and Gaming Regulation Act, 1997 with respect to an offence against

section 126 or 127 of that Act or a provision respecting intoxication in any bylaw, as the case requires. Common Law [55] In R. v. W.J.D. , [2004] S.J. 799 (Sask. Prov. Ct.) , the Court considered the lawfulness of an arrest of a youth, W.J.D. for being

intoxicated in a public place. Judge Green determined that in Saskatchewan, such an arrest can be made pursuant to sections 126 and 149 of AGRA and sections 52 and 53 of SOPA . In R. v. W.J.D., supra , Judge Green determined that the relevant provisions of these two Acts must be read together in determining whether an officer has the power to arrest a person for being intoxicated in a public place.

Judge Green stated as follows at paragraphs 27 to 29: 27 In my view the relevant provisions of these two Acts must be read together in determining whether an officer has the power to arrest a person for being intoxicated in a public place. The Alcohol and Gaming Regulation Act contains no definition of "intoxicated condition". Section 52(2) of The

Summary Offences Procedures Act , although not specifically defining these words, does set some parameters on when police can arrest someone believed by that officer to be intoxicated by alcohol in a public place. These added prerequisites are (

i) that the subject, if not detained is likely to cause injury to himself or be a danger or disturbance to others and (ii) that there is, in the opinion of the police officer, no other person capable of and willing to take care of the subject. 28 In R. v. Roberts , [2003] S.J. No. 495 (Sask. Prov. Ct.) Carter PCJ applied the provisions of

section 52 of the SOPA , together with common law authority, in determining whether Mr. Roberts was in an "intoxicated condition" within the meaning of

section 126 of the AGRA . He specifically cited the provision from

section 52 , which requires a police officer to reasonably believe that the subject is "likely to cause injury to himself or herself or be a danger or disturbance to others". In that case Judge Carter, in applying this test, found that the evidence of Mr. Roberts's condition and behaviour fell short of this standard. In Roberts , it was not necessary to further consider whether the officer reasonably believed there was no other person capable of and willing to take care of Mr. Roberts. 29 Further evidence of the inter-relation between these two Acts can be found in

section 53 of the SOPA , which provides that a police officer can, in addition to arresting a person under

section 52 , charge that person with an offence under

section 126 (intoxicated in a public place) or

section 127 (disorderly conduct) of the AGRA . According to

section 53 , however, a precondition to such a charge being laid is that the person has been arrested under

section 52 two or more times within the preceding year. [56] I adopt this reasoning. Hence, in this case Constable Keshane would have been acting in the execution of his duty and making a lawful arrest of Mr. Tidball if he reasonably believed that Mr. Tidball: (1) is intoxicated due to the use of alcohol; and (2) if not detained, is likely to cause injury to himself or be a danger or disturbance to others; and (3) there is, in the opinion of Constable Keshane, no other person capable of and willing to take care of Mr. Tidball. [57] In R. v. Merasty , [1988] S.J. No. 668 (Sask.

Q.B.) , the Court held that the reasonableness of an arrest for drunkenness in a public place must be judged based upon the evidence of impairment observed by the arresting officer prior to the arrest. Subsequent events after the arrest cannot justify the initial detention. Hence, I am unable to consider Constable Lusak’s observation that he smelled the odour of beverage alcohol coming from Mr. Tidball during the struggle with the police on the sidewalk. ANALYSIS

(1) Does the evidence establish that Constable Keshane reasonably believed that Mr. Tidball was intoxicated due to the use of alcohol? [58] Constable Keshane’s observations respecting Mr. Tidball’s level of intoxication are very limited. He testified that he observed that Mr. Tidball’s eyes were red, he was unsteady on his feet and argumentative with police. Constable Keshane did not describe any other signs of intoxication, including the basic indicia that he smelled the odour of beverage alcohol coming from Mr. Tidball. [59] Constable Lusak was the only witness who testified he observed Mr.

Tidball to have been leaning against a door for support. I simply do not believe this to be an accurate observation. Constable Keshane did not elaborate as to what observations led him to conclude that Mr. Tidball was unsteady on his feet. Moreover, Constable Keshane’s evidence that Mr. Tidball was unsteady on his feet is contradicted by his own partner, Constable Mountain, who testified that Mr. Tidball was stable on his feet. Constable Mountain’s observation respecting Mr. Tidball’s overall stability is entirely consistent with the fact that it took five officers to bring Mr.

Tidball to the ground and gain control over him. I prefer the evidence of Constable Mountain on this point. I find that Mr. Tidball was stable on his feet prior to arrest.

[60] I am left with Constable Keshane’s observation that Mr. Tidball’s eyes were red and that Mr. Tidball was argumentative andconfrontational with police. However, I note that any argument or confrontation was short-lived, as Constable Mountain testified that thepolice encounter with Mr. Tidball prior to the arrest took approximately ten seconds. [61] In my view the evidence before the Court does not establish that Constable Keshane reasonably believed that Mr. Tidball wasintoxicated due to the use of alcohol.

(2) Does the evidence establish that Constable Keshane reasonably believed that if Mr. Tidball was not detained, he was likely tocause injury to himself or be a danger or disturbance to others? [62] In my view there is no evidence before the Court to establish that Constable Keshane reasonably believed that if Mr. Tidball wasnot detained, he was likely to injure himself. [63] I am of the view that the evidence does establish that Constable Keshane reasonably believed that if Mr.

Tidball was not detainedhe was likely to be a danger or disturbance to others. [64] In this case Constable Keshane was dispatched to Habanos Nightclub around 2:00 a.m. The dispatcher advised him that a malewearing an orange shirt was involved in a fight inside and outside the club. This same person had been asked to leave and did not leave. Fighting in a nightclub clearly constitutes a danger and a disturbance to others. I am of the view that Constable Keshane properlyconsidered this hearsay evidence (see R. v.

Golub (1997), (ON CA), 117 C.C.C. (3d), 193 (Ont.C.A.) leave to appealto S.C.C. refused 128 C.C.C. (3d) vi.). In addition, upon arrival at Habanos Constable Keshane personally encountered Mr. Tidball whowas wearing an orange shirt and who was argumentative and confrontational with him. Such evidence in my view establishes ConstableKeshane would have reasonably believed that if Mr. Tidball was not detained he was likely to be a danger or disturbance to others.

(3) Does the evidence establish that Constable Keshane was of the opinion that there was no other person capable of and willingto take care of Mr. Tidball? [65] In this case there is no evidence that Constable Keshane, nor any other police officer, formed any opinion as to whether there wasa person capable of and willing to take care of Mr. Tidball. [66] The evidence establishes that neither Constable Keshane, or any other police officer, made any inquiries with Mr. Tidballwhether there was anyone who was capable of and willing to take care of him.

In addition, there is no evidence that Constable Keshane,nor any other police officer made any inquiries of anyone at or near Habanos that early morning as to whether they were capable of andwilling to take care of Mr. Tidball. [67] Constable Keshane testified that one of the reasons for his quick arrest of Mr. Tidball was his concern that no one else gotinvolved, in the event Mr. Tidball had friends nearby. As it was, Mr. Tidball had friends nearby who might have been helpful anddiffused the situation.

Had Constable Keshane or any one of the five other police officers on the scene actually made inquiries of the 30or so people gathered outside of Habanos they would likely have determined that Mr. Tidball’s girlfriend, Cindy Schissler was present aswas Mr. Waldu. Given the opportunity, I believe Mr. Waldu would have been able to and willing to take care of Mr. Tidball. Mr.Waldu struck me as a responsible person who was concerned about Mr. Tidball’s well-being. While he had consumed two or threedrinks of vodka and tonic up to that point, there is nothing to suggest he would not have been able to care for Mr.

Tidball. As Ms.Schissler did not testify at the trial I can only conclude that it is possible that she may have been able to and willing to take care of Mr.Tidball. [68] Regrettably, little or no thought was given by Constable Keshane, or any police officer, to determine if there was any personcapable of and willing to take care of Mr. Tidball. No inquiries were made in the ten seconds prior to grabbing and arresting Mr.Tidball. The police dealt with Mr. Tidball in

summary fashion. The evidence at trial does not establish that Constable Keshane was ofthe opinion that there was no other person capable of and willing to take care of Mr. Tidball.

Summary [69] While I have determined that Constable Keshane would have reasonably believed that if Mr. Tidball was not detained he was likely to be a danger or disturbance to others, that is not enough. In the present case I found that Constable Keshane was not acting in the execution of his duty when he grabbed Mr. Tidball and purported to arrest him for public intoxication. On the evidence before me I find that Constable Keshane could not have reasonably believed that Mr. Tidball was intoxicated due to the use of alcohol.

In addition I find that Constable Keshane could not have formed the opinion that there was no other person capable of and willing to take care of Mr. Tidball. The arrest of Mr. Tidball for public intoxication was unlawful. As a result I find that Constable Keshane was not engaged in the execution of his duty when he spoke to and grabbed Mr. Tidball. Mr. Tidball was entitled to resist the police. CONCLUSION [70] I find the accused not guilty of the offence of resisting arrest, contrary to

section 129 (

a) of the Criminal Code . ________________________________ M.J. Hinds, J