R. v. Kiradziev, 2010 ONCJ 162

Toronto DATE: 2010·04·29 Citation: R. v. Kiradziev , 2010 ONCJ 162 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Paul KIRADZIEV Before Justice Marvin A. Zuker Heard on March 4 and 5, 2010 Reasons for Judgment released on April 29, 2010 Ms. O. Delgado .......................................................................................................... for the Crown Mr. A.

Baratz, Esq. ........................................................................... for the accused Paul Kiradziev REASONS FOR JUDGMENT ZUKER J.: [ 1 ] Paul KIRADZIEV was charged, on or about the 20 th day of October 2008 in the City of Toronto in the Toronto Region, that he did wilfully obstruct Heinz R. HENKEL, a peace officer, to wit a police officer of the City of Toronto engaged in the execution of his duty while attempting to execute a search warrant, by intentionally impeding his way, contrary to the Criminal Code . [ 2 ] P.C. Henkel gave evidence in his capacity of a peace officer.

He currently works with the Combined Forces Special Enforcement Unit. But at the time of this incident was working as the officer in charge of the Vice

Section of 52 Division. [ 3 ] His team had been involved in a drug investigation at a club called 338, located at 338 Adelaide Street West in the City of Toronto. The project had begun in July of 2009 and concluded on Monday, October 20, 2008. [ 4 ] He had inserted undercover operatives into the nightclub that were able to substantiate a Controlled Drugs and Substances Act search warrant which was executed on Monday, October 20, 2008. They had received judicial authorization for an unannounced dynamic entry using members of the Emergency Task Force. There were a variety of reasons for that.

One was just the enormous amount of drug use that was being observed by undercover officers. The presence of the undercover officers inside the nightclub the night of the execution of the search warrant. Confidential source information involving potential firearms within the nightclub. So it was necessary to go in there as expediently as possible to suppress the crowd. [ 5 ] The concern was the potential for firearms being located within the nightclub.

Source information as well as surveillance had identified members of Asian organized crime organizations so the potential for… Having worked in the entertainment district and having seen how it progressed over the six years, the use of firearms within the nightclub, was of greatest concern: the safety of the officers and the public. And then there is the destruction of evidence, being the narcotics.

It is essentially “rave drugs” – GHB, ecstasy, crystal meth. [ 6 ] They conducted a briefing at about 2:30 a.m. on Monday, October 20, 2010 and then the contingent of officers who were going to be involved in the search warrant began heading down to the area. [ 7 ] One of the issues they had with the nightclubs was that all the security have headsets. The issue that they had was to isolate the door staff at the front to make sure that they did not voice anything on their headsets to the people who were spread upstairs.

It was a bit of a challenge to get into this particular club, the way it was designed and the 20 stairs it took to gain access. The job as plainclothes officers was to control the door staff at the front and clear the way for Emergency Task Force officers to enter the nightclub. [ 8 ] The job was to walk southbound on Peter Street and then make their way around… The nightclub is located on the north side of Adelaide, just east of Peter Street. Come down from Peter, walk onto Adelaide and immediately control the door staff at the front.

The Emergency Task Force officers were in two separate vehicles following slowly behind us. So, as they cleared the corner, around 3:57 a.m. on October 20, they basically began to run towards the door and identify, “Police, search warrant,” yelling it constantly.

[ 9 ] The whole point was to clear the door. Officer Henkel called the takedown at 3:57. He ran eastbound on the north sidewalk. He jumped a barricade and cleared a chain-link fence. And as he was running, he was yelling, “Police. Search warrant.” He just continuously kept repeating it so that there was no mistake that they were the police. [ 10 ] “The accused before the courts was facing westbound or slightly to an angle westbound and was off to the, I guess, south of the door and slowly moved into the doorway. And again, his sheer sized completely blocked the doorway. He raised his arms to his chest.

Now I assumed at the time that he was going for his headset, to his mike, to warn the people inside. At that time I tried to take control of the accused and ordered him to the ground, to move out of the way and he just didn’t budge. And again, his sheer size… Other officers, eventually, helped me and then we managed to put Mr. … or the accused to the ground.” [ 11 ] The officer produced photographs relating to the events. The photographs were taken by Detective Constable Chris Hominuk from 52 Division. [ 12 ] Q. Okay. I’m going to show you another photograph.

Maybe you could tell us who’s in that photograph. [ 13 ] A. Yes, there’s the accused. I’m trying to reach for his arms ‘cause his arms were going up. [ 14 ] Q. Sorry, when you said his arms were going up, you said he raised his arms. Can you describe that a little better? [ 15 ] A. He raised his arms and my assumption initially was to… that he was going for his headset for his mike, which, typically, the headsets, the plunger is on the hands so that they can talk into it and it’s got a mike. [ 16 ] Q. Okay.

You made some kind of gesture with your arms. [ 17 ] The arm’s going up and then eventually they locked in and he just stood there like this with the arms crossed. But when his arms were going up, I initially thought he was going to alert the staff inside. That may not be the case but that was my assumption at the time. So my job is to control his hands and try to move him out of the doorway for the Emergency Task Force officers. [ 18 ] Q. And again, is anything being said to identify who you were? [ 19 ] A.

I kept yelling for the accused to get to the ground. [ 20 ] The Court : What’s the accused doing? [ 21 ] The Witness : He’s just standing there. He’s just standing there. He’s not moving. He’s not reacting. He’s just standing there locked up. [ 22 ] The Court : He didn’t seem to attempt to call anybody? [ 23 ] The Witness : No. Well, … [ 24 ] The Court : You don’t know? [ 25 ] The Witness : Whether he did or not, I don’t know. I was yelling, “Police. Get down, get down.

Search warrant,” and I was trying to force him out of the way. [ 26 ] “What’s happening is he’s gone slightly from the doorway right into the doorframe itself so he’s almost in the middle of the doorframe, and just the sheer size prevents entry into the business.” [ 27 ] “…he could have gone either way, but… While I was pulling him one way, he was just frozen and locked down and he wasn’t moving either way.

He had just moved into the doorway, then just stood there and, in my opinion, it was a purposeful delay to prevent us entry and to allow the club to be warned we were coming.” [ 28 ] “We put him to the ground and when we got him to the ground his arms were still locked. And we had to forcibly move his arms and keep requesting that he free his arms. Once his arms were free and he gave in, then we had, just because of his sheer size, difficulty handcuffing him but it was the initial he wouldn’t let his arms unlock.” [ 29 ] Q.

So is there anything that you can see that would obstruct his view in 1G from the coming Emergency Task Force officers? [ 30 ] A. No. Again, I don’t know where he’s looking but it would… I mean he would have a clear bird’s-eye view of … over our … our little group trying to control the crowd there. [ 31 ] According to Officer Henkel, the accused’s movements while he was trying to put him on the ground were stiff – he wouldn’t go down and would not move out of the doorway. [ 32 ] It took a lot of force to get him to the ground.

Trying to get his arms from under him, they didn’t know if he had weapons or what the purpose was of his locking his arms, other than just physically obstructing the door. They didn’t know what his intentions were. Eventually, they were able to get his arms freed up and have them put behind his back. [ 33 ] “The frames [exhibits] give a little nicer perspective at how quickly it seems to have happened but it seemed a lot longer when you’re there so I can’t give an accurate time.

I mean it was just such a struggle to get him down but it’s … and there were a lot of narcotics found inside, yes, scattered throughout the floor, all designer drugs, some cocaine as well.” [ 34 ] Mr. Baratz : Your Honour, if we could just address a matter of housekeeping, as well, with regards to the timeframe of

each snapshot of the photographs that we have before us as exhibits? I believe, as a state… as an agreed fact, at this point, my friend… and again, I don’t want to speak for my friend but I believe my friend will agree that, for every three photographs that we have, one second is the time duration for every three photographs, one second elapsing for every three. So every three photographs reflects one second. [ 35 ] Officer Henkel had a tag on you, stating that he was an officer. It was a badge in a form of a necklace. It hangs from his neck. [ 36 ] He was asked on cross-examination: Q. Okay.

And what particularly did you say? What words did you use to order him to the ground? Do you … [ 37 ] A. I don’t recall the … [ 38 ] Q. … recall? [ 39 ] A. … exact words. No, I mean I kept yelling, “Police, get on the ground. Get on the ground.” I mean there was no … from my commands and the manner in which I was telling him, there was no doubt that I was giving them specific tactical commands to get on the ground. I don’t recall the exact wording. [ 40 ] Q. … you state that you saw him move into the doorway, to block the doorway? [ 41 ] A. Yes. [ 42 ] Q. Okay. But you’d agree with me that Mr.

Kiradziev, if you look at the pictures, and I’ll show you that. Well, I’ll start with 1A. Exhibit 1A, 1B, 1C, 1D, 1E … 1E, 1F, 1G, 1H (sic), 1I, 1K, 1J and 1M … I guess you can’t really … okay, so from 1A … [ 43 ] A. Umhmm. [ 44 ] Q. … to 1J, okay, you don’t … based on these photographs, Mr. Kiradziev does not … his back is not against the open space of the entrance to the doorway? It’s more against … his back is leaning against an open door, sideways, correct? [ 45 ] A. Yes. [ 46 ] Mr. Baratz : Q. If we look at photograph 1H, where could Mr. Kiradziev have shuffled? [ 47 ] A.

Completely back towards where Officer Van Seters is. We could have moved him back. Or in hindsight, what we should have done is ploughed him right into the nightclub. [ 48 ] Q. Right. I’m going to suggest to you that there was nowhere for Mr. Kiradziev to move at this point in time. Because if he would have moved back towards Van Seters, he would have pushed Van Seters out of the way. If he was to move forward in his position being sideways, he would have moved into this complete, you know, scrimmage of individuals here. Where was he to go? [ 49 ] A. We wanted him to come this way. [ 50 ] Q. Right. So … [ 51 ] A.

So, in a southerly area. And that’s where we’re pulling him. I mean, it could have easily done, in my opinion. Or, in hindsight, we should have pushed him right through that door. [ 52 ] Q. Right. Because there was nowhere else for him to go, right? [ 53 ] A. No, we could have pulled him out. [ 54 ] Q. Someone else is in the way? [ 55 ] A. We could have pulled him out. No, not at all. But the thing is, the momentum … [ 56 ] Q.

Uhmm. [ 57 ] A. … would have been a lot easier if we just tackled him right through the door, instead of forcing in an unnatural direction and pulling him towards us, we should have just ploughed him right through that door. [ 58 ] Q. In fact, even if he wanted to get down to the ground, looking at 1H, it would have been impossible for him to do so because where was he going to go? [ 59 ] A. We were pulling him this way, sir. [ 60 ] Q. Right. [ 61 ] A. So, if I’m pulling you and … I would have … my goal was to pull you straight south. [ 62 ] Q. Right. [ 63 ] A. But the thing is, is he wasn’t moving.

He was just standing there. He didn’t have to fight us. He just stood there because of his sheer size. In hindsight, push him right through the door and go with the natural momentum and force of our bodies and

push him right through. That’s what we should have done. [ 64 ] Q. So you’d agree with me, first up, that there’s no picture that has been filed as an exhibit that would … that would illustrate Mr. Kiradziev arms being crossed, correct? [ 65 ] A. Because of the sheer amount of bouncers surrounding him, yes. [ 66 ] Q. Because I can’t see if there’s any picture, yes or no? [ 67 ] A. Let me just look at that. [ 68 ] Q. With his arms being crossed? [ 69 ] A. No. [ 70 ] Q. And you do mention that, at one point, he’s raising his arms up even, right? [ 71 ] A. Yes. [ 72 ] Q. And … okay.

You would have … you never knew Mr. Kiradziev before this incident? [ 73 ] A. No, I had seen surveillance photographs. We had … obviously, we’d been there since July … [ 74 ] Q. Right. [ 75 ] A. … so I’d seen surveillance photographs. I believe he was still working. [ 76 ] Q. He would be in some of them? [ 77 ] A. Yes, as an employee. A staff member. [ 78 ] Q. Okay. I want to get back to before … well, before Mr. Kiradziev is down to the ground. You … you mentioned, you don’t know how many times but you mentioned, “Police, search warrant,” right? [ 79 ] A. Everyone was yelling.

I mean there was a lot … it was very loud. There was a lot of … lot of talking, yelling, screaming to move the barricades. Who we were … What happened was, if we go there first, we’re delayed, and now you’ve got everybody behind us … that kind of gets … it’s a big bottleneck, and that’s why you’ve got this big kerfuffle in front of the doors. [ 80 ] Q. And then you’ll agree with me then that it was difficult to hear really a lot that was going on at the time? And it would be difficult to hear things? Like, well, let’s just say it would be difficult to hear a conversation?

A normally spoken conversation, given the noise? [ 81 ] A. It could possibly, yes, I mean… [ 82 ] Q. You were aware that Mr. Kiradziev in one ear was wearing an earpiece? Where he had an earpiece, like made mention of the sequence … did you mention the Secret Service? Something where they have … [ 83 ] A. I didn’t know what type of security headset he had but I know he had a headset. [ 84 ] Q. No, you weren’t aware or you didn’t observe that or … [ 85 ] A. An earplug? [ 86 ] Q. yes, an earplug in the other ear. [ 87 ] A. I had no clue he had an earplug. RE-EXAMINATION BY MS. DELGADO: [ 88 ] Q.

You said … counsel asked you about photo 1N and how there had been … it looked like chaos, which you agreed and you said you could … that could have been avoided, it was unnecessary. What did you mean by that? [ 89 ] A. If everyone would have just backed away from the door and moved, then everyone could have just started filtering in. The tact teams could have started filtering in and then the uniformed officers behind them. It … what had happened is it created such a quick bottleneck, everyone was … there was a break delay with us going to isolate this security staff and then the tact team was filtering through.

That was the goal. And then that, you know 10-second delay caused everybody to kind of filter through and then you wind up with this bottleneck. THE ACCUSED [ 90 ] The accused is thirty-six years of age. He completed high school and went to George Brown College, taking electrical engineering. He does not have a criminal record. He has no outstanding charges. He is self-employed. He lives with his parents in Scarborough. [ 91 ] He is six-foot-nine-and-a-half without shoes and, with shoes, six-ten-and-a-half with running shoes, six-eleven-and-a-half with a boot. He presently weighs about 490 pounds.

And back on October 20, 2008, the evening in question, approximately, 450

pounds. He gave evidence that his “body size and weight make me slower than normal, make me more cautious than normal.” [ 92 ] When he was younger, he always use to hit his head on doorframes, door of subway, entrances, what not. [ 93 ] On October 20, 2008, he was in between the seasons and took up security work to pass the time between seasons and make a little extra money. He had been working at Club 338, on and off, for about three years. The club was generally opened only the two nights, the Thursday and the Sunday.

He made $18 an hour cash. [ 94 ] He worked at the front door of the club the first two years. [ 95 ] On October 20, 2008, his main role, working at that club, was as a ticket collector. He never physically searched any patrons. [ 96 ] He had no business interest in the club. [ 97 ] For regular patrons to enter the club, there was one entrance. [ 98 ] On October 20, 2008, he arrived at the club for work at approximately 10:30 p.m. The club provided a standard radio, a two-channel or a three-channel radio. It was up to the bouncers to get their own earpieces.

His was basically just a loop around, with an earwig, you are looping around your right ear. [ 99 ] He had an earwig. He could hear things going on throughout the whole evening. [ 100 ] The manager could be talking to the ticket booths saying that they are going to come and collect some money. The bartenders requesting more water for the busboys. Any general chatter in that evening. [ 101 ] If he wanted to convey a message, he would have to go to his radio and press the button. [ 102 ] The point of having an earplug in his other ear was to lessen the degree of damage.

When he first started working as security, he was young and didn’t realize the bass, over the years, had deteriorated his hearing. [ 103 ] The evening of October 20, 2008, the security arrangements at the front door consisted of two security outside, two searchers inside. [ 104 ] He never threw anyone out, because he is not as physically fit as some of the other security. His size, weight, some medical conditions he has with his joints and legs.

His legs have broken blood vessels that have exploded inside his legs. [ 105 ] His knees are just generally bad and worn and torn from walking with constant weight. [ 106 ] He is in the security business because of appearance’s sake. He is an intimidating looking person. [ 107 ] On October 20, he was collecting tickets for most of the evening. [ 108 ] Approximately an hour before the raid, he was possibly either collecting tickets or outside for a cigarette. [ 109 ] He outside right before the raid for a couple of minutes.

Two to three minutes. [ 110 ] Prior to the commencement of the police raid, he was standing, leaning up against the front door. [ 111 ] The first thing he remembers is he saw a train of people coming with vests on and one person’s hand was on the back of the next person’s hand. [ 112 ] He was pretty sure he saw … the chains were still up. He is pretty sure he saw the first few officers in that train tumble. [ 113 ] He soon felt smothered, like there were lots of hands on him. He was caught off guard. He had no idea what exactly was going on. [ 114 ] He didn’t see any badges.

He saw what looked like a stencil of a police badge or something … [ 115 ] The only reaction he remembers is that he put his hands up. [ 116 ] He was pulled to the ground. [ 117 ] Once he was finally on the ground, he remembers, before he was handcuffed, a fist came into his eye. He heard, “This is to teach you for next time to get down on the ground faster.” [ 118 ] The night of October 20, 2008, he suffered a black eye, a charlie horse of some sort, his legs were very cramped up, they were in severe pain.

He was assuming it was probably those veins in his leg again. [ 119 ] He stated that he never tried to obstruct the police in their duties that evening on October 20, 2008. [ 120 ] It has caused him more headache than that place was worth, with what hewas making at that club, just from the stipulation standpoint. [ 121 ] He hasn’t been able to do contracts for the downtown core and places outside of the downtown core, but because he wasn’t able to enter the downtown core. It was too much of a workload for his business partner.

[ 122 ] He lost potentially thousands of dollars on a monthly basis for not being able to enter the downtown core of Toronto. [ 123 ] Ms. Delgado suggested to that when you’re getting paid they are expecting you to look after their interests. And his being a veteran of some 18 years’ experience knew that, in order to be hired back and continuously hired, have to be looking out for their interests, is that accurate? [ 124 ] A. Not necessarily, no. I am … my business partner as of current, his brother’s the manager of that bar.

So him telling his brother can he give him some work in between seasons, is, basically, the reason I’m going back to that bar. [ 125 ] Q. And I’m going to suggest to you that you … because of that knowledge, I’m going to suggest to you, you knew that delaying even for a second, any second you could delay the police entrance, would assist not only the patrons of the bar but the staff in disposing of drugs, dropping the drugs so they’re not in anyone’s possession. Any number of ways, isn’t that correct? [ 126 ] A. I had no intent to delay or impede police officers. [ 127 ] A. No.

Because of my physical attributes and poor physical activity, I’m not able to breathe that well. I’m not a runner; I’m not even a walker. Even walking to the washroom, no offence, on the other side here, I find myself out of breath, at times. I was also a smoker, say from the age of 14 to recently of six months ago. I quit, due to health reasons my doctor has mentioned to me. I was never required to run into that club, to go into the club. My sole purpose was to sit there and to make sure that everybody paid that needed to be paying.

And there wasn’t any confusion, oh, well, we thought this person was someone special and we thought that person was someone special. Nobody’s special; everybody must pay. [ 128 ] Q. I’m just going to show you … I’m just going to show you these contact sheets. My friend has, I understand, copies of all of them. Unfortunately, they’re not easily identifiable, one from the other. [ 129 ] Q. All right. And on this particular day do you recall hearing any of the officers yell, “Police,” at any time? [ 130 ] A. No. [ 131 ] Q. None … [ 132 ] A. None. [ 133 ] Q. … of the officers ever said the word, “Police”? [ 134 ] A.

Like I said, with an earwig in one ear and a plug in the other ear, it’s very hard to hear. So it’s me, if I’m attent (sic) how my … you know, if I’m just sitting there going, “Oh, my God, is this night every going to be over,” I’m bored, you know? I don’t know what was going through my mind at that moment. But the first instance I remember of any police is, like I said, that struck in my head, was when I saw that train … what looked like a train of people coming straight forward. And I saw a vest, an outline of what looked like to be a badge over their heart and guns on their holster.

Then it took kind of like a cold bucket of water to my face and I kind of woke up and go, “Whoa, something is happening.” [ 135 ] Ms. Delgado : Q. There’s … you never hear the police yell, “Police, …” [ 136 ] A. I never heard … [ 137 ] Q. “… get down on the ground, search warrant,” you said, is that right? [ 138 ] A. yes. [ 139 ] Q. You said you never heard the police yelling at all? [ 140 ] A. I never … I never heard that. [ 141 ] Q. You know what strikes me as odd, sir? [ 142 ] A. What is that? [ 143 ] Q.

The only time you hear anything from the police is when the comment made by the police is to your advantage and makes the police look bad. That’s the only time you heard anything that you’re telling the Court about, said by the police. [ 144 ] A. Yes, I understand. [ 145 ] Q. Isn’t that odd? [ 146 ] A. Like I said, and possibly you’re right, maybe I’m confused. Everything took place, you’re saying, basically, in five seconds, four seconds. The time I’m out of the frame. I don’t know what’s … how my brain is perceiving what’s happening in four seconds.

And now, a year and a half later, almost two years later, you know, things are starting to lose what I’m … what my memory remembers. So … [ 147 ] Q. Let’s go back to your memory of hearing things, … [ 148 ] A. Okay. [ 149 ] Q. … sir.

[150] A. The last … [151] Q. I’m going to make a suggestion to you, sir, that it doesn’t make any sense that you’d hear only the police saying thatthey punched you in eye because you didn’t get down fast enough, but didn’t hear the police yelling, “Police, search warrant,” or “Getdown.” [152] A. No, no. THE LAW [153] The relevant portions of s. 129 of the Criminal Code state: 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 suchan 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. [154] The case raises two issues: firstly, whether there was an obstruction of a police officer in the execution of his duty and,secondly, whether the obstruction was wilful. [155] The Supreme Court of Canada considered in R. v. Beaudry, 2007 SCC 5, [2007], S.C.R. 190, the issue of the use of policediscretion as it relates to obstruction of justice, as well as the scope of appeal under s. 686(1)(a)(

i) of the Criminal Code. The facts of thecase concern a police officer who decided not to obtain breath samples from a fellow officer whom he found operating a motor vehiclewhile intoxicated. [156] Justice Charron noted, in an aspect of the case on which all agreed, that a proper exercise of police discretion could notconstitute obstruction of justice. On the other hand, an improper exercise of discretion would not necessarily be obstruction – it could bea simple error in judgment.

The offence of obstruction requires in addition the specific intent to obstruct, pervert or defeat the course ofjustice. [157] The Court of Appeal in R. v. Hawkins, 2002 BCCA 3, allowed an appeal and substituted an acquittal on the count ofobstruction. The accused was convicted on counts of criminal harassment, dangerous driving and obstruction of justice. He appealedthe obstruction conviction.

This count was based on a number of threatening acts and gestures he made to the foster parent of his twochildren as they drove in separate vehicles to a custody hearing respecting the children. [158] Counsel were in agreement that the mens rea required was proof of the specific intent to obstruct justice. Here, based onthe evidence of prior acts of harassment, the trial judge had erred in finding that intent.

It was equally likely that the acts were intendedby the accused simply to continue his harassment as it was that he had specifically intended to obstruct the course of justice in terms ofthe custody hearing. [159] For the specific intent requirement for wilful obstruction of justice, the Court relied on R. v. Charbonneau, (1992) (QC CA), 74 C.C.C. (3d) 49 (QC C.A.), leave to appeal to S.C.C. refused 75 C.C.C. (3d) vi. See also R. v. Kirkham,(SK Q.B.) and R. v. Murray, (ON S.C.). O.J. No. 2182 (Ont.S.C.J.). These authorities wouldnot allow a conviction based on recklessness or wilful blindness.

On the other hand, the Alberta Court of Appeal in R. v. Gunn, 1997ABCA 35 , [1997] A.J. No. 44 refused to confine the mens rea for wilful obstruction of a police officer to a specific intent. [160] The Crown must prove its case an each element of each charge beyond a reasonable doubt. [161] The Supreme Court of Canada set out the tests for credibility and reasonable doubt where an accused testifies in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742. The test is always proof beyond a reasonable doubt. If the accused is believed and histestimony raises a reasonable doubt, there must be an acquittal.

If the accused is partially believed and the evidence accepted raises areasonable doubt, the accused must be acquitted. If the accused is not believed and there is a reasonable doubt on the balance of theevidence, he must be acquitted. The Obstruction Charge: [162] The elements which must be proven to establish an offence of obstruction of a peace officer are that the peace officer mustbe in the execution of his duty, there must be an obstruction, and a person must be wilfully obstructing. [163] Was there an obstruction? The meaning of the word obstructs was considered in R. v. Gunn 1997 ABCA 35 ,[1997] A.J.

No. 44 Alta C.A. In that decision, the Alberta Court of Appeal said: There is not and likely cannot be, a precise legal definition of “obstructs” as the word is used in

Section 129(a). Thereality is both a strength and a weakness of the section. Furthermore, any

interpretation of obstructs must respect the fact that there is inthis country, a right to question a peace officer. [164] I must note that a peace officer’s duty is more than to simply focus on his investigative role. A fundamental policingprinciple is that a police officer must serve the public in a civil manner. This principle is as old as the concept of modern civilianpolicing.

[165] When the London Metropolitan Police Service was established in the early 1829, the new police constables were instructedin their duty to the public.

The 1829 general instructions issued to each constable included the following direction: “He will be civil and attentive to all persons of every rank and class; insolence or incivility will not be passed over. … “He must be particularly cautious, not to interfere idly or unnecessarily; when required to act, he will do so with decisionand boldness; on all occasions he may expect to receive the fullest support in the execution of his authority. “He must remember that there is no qualification more indispensable to a Police Officer than a perfect command oftemper, never suffering himself to be moved into a slight degree by any language or threats that may be used; if he does his duty in thequiet and determined manner, such conduct will probably induce well-disposed bystanders to assist him should he require it.” P.

J. Stead, The Police of Britain 1985, p. 41. [166] That principle was adopted by North American Police Services. The 1845 City of New York regulations for police stated: “Members of the department must be civil and respectful to the public, and, upon all occasions, execute their duty with goodtemper discretion. No qualification is more indispensable to a policemen than a perfect command of temper; a manly forbearance underprovocation, and a temperate, though firm, deportment, which will ensure him support in the discharge of his duty … Ibid. p. 41. [167] Judge B.R. Fraser, in R. v.

Johnsgaard 2003 ABPC 165, was addressing an obstruction charge. He discussed the nature ofmens rea with respect to general intent and purpose of intent. He stated: “The third element is that the accused must be wilfully obstructing. This is the mens rea of the offence and only requires a generalintent. The mens rea is present when an accused knows what he is doing and intends to do it. Clearly the accused knew what he wasdoing and intended to do it. However, did he intend to obstruct? I do not believe he did. He certainly, in my view, did not intend toobstruct Constable Krausher by offering to be a witness.

I have already found that this was not an obstruction. Therefore, he had nointent to obstruct.” [168] For the offence of obstruction as set out in s.129(

a) of the Criminal Code, to be made out, the Crown must satisfy threespecific elements: 1. That there is an obstruction; 2. That the obstruction affected the police officer in the execution of a duty he was then executing. 3. That the person did so wilfully. [169] The purpose of s. 129(a), according to the Alberta Court of Appeal as set out in R. v.

Gunn, 93 AR 222 at para. 50 is to“limit the activities of a citizen towards a police officer who is executing his duty.” [170] In trying to measure the interaction between an individual and a peace officer so as to determine what is innocent and whatis culpable conduct, the Court must consider the circumstances leading to the act or acts complained of, the act itself, as well as theconsequences of any such act. [171] Clearly, each case is dependent upon its own facts.

What may e an obstruction in one set of circumstances may not be inanother, even though the act undertaken is the same in both instances. [172] Generally speaking, “obstructing” as it is used in s.129(a), means to make it more difficult for the police to carry out theirduties. (See: Hinchcliffe v. Sheldon, [1955], 3 All E.R. 406.) That, however, does not mean that the act or acts complained of mustcompletely frustrate the actions of the police officer in performance of his duty, it is enough if they affect the work of the police officerin carrying out his proper duties. (See also R.

Tortalano et al, (1975) (ON CA), 28 CCC (2d) 562, (Ont. C.A.) and R.v. McKerness, (1983) (QC CQ), 4 CCC (3d) 233. [173] It is not, in my view, sufficient for the Crown to meet its onus by simply demonstrating that the police officer has beeninconvenienced to some degree. (R. v. Hargrove, (1985) 35 MVR 217.) The police are inconvenienced daily in their duties, but that isnot enough to criminalize the actions of the person that has caused the inconvenience. When an inconvenience amounts to an obstructionis, of course, dependent upon the individual circumstances of each case.

Suffice it to say that the inconvenience or the extra workgenerated by the accused’s conduct must be more than trifling or de minimus in nature. [174] Clayton Ruby, in his paper entitled Obstructing a Police Officer, (1972-73) Criminal Law Quarterly 375, at p. 391,observes that: The Courts have generally been reluctant to find obstruction when purely passive conduct is engaged in by an accused. [175] He notes the case R. v. Simeniuk, (1955) (AB KB), 111 CCC 370, wherein the accused declined tounlock a glove compartment of an automobile being searched for liquor and was thereupon charged with obstruction.

The Courtdeciding the case, Ruby says, disavowed “any (non-statutory) legal duty on the part of citizens generally, let alone suspected persons, toassist police officers in discovering the evidence upon which to found a conviction… .” [176] In the case Rice v. Connolly, [1966] Queen’s Bench 414, the English Court of Appeal determined that while every citizenhas a moral or social duty to assist police, there is not such legal duty and the Defendant in refusing to answer the police constable’s

questions or to accompany him to the police box had not wilfully obstructed the police constable, even though he was acting in thecourse of his duty and even though the Defendant had made it more difficult for the constable to carry out his duty. [177] No dispute is taken that a police officer has a duty to detect crime and bring an offender to justice.

In that context, thepolice officer has a duty and obligation to investigate alleged criminal acts. [178] Certainly, there was some delay caused to the police officer in the initial stages of his investigation. [179] Although under the circumstances I don’t believe these extra tasks meet the test for obstruction as described aforesaid, ifthey do, then there is, in my view, no liability in any event for the same. An obstructive act cannot constitute an illegal act simplybecause it occurs.

It must be clear on the evidence that the accused knows that what he is doing is interfering with a police officer in theexecution of his duty. (See R. v. Noel, (1995) 18 MVR (3d) 96 at pp. 20-21.) He can’t be presumed to know that unless thecircumstances are such that the action taken of its own demonstrates the obstruction. This is not such a case.

This is not a case where anaccused blocked a doorway or prevented the police from chasing a suspect, or refused to leave the scene of a disturbance, or interferedwith the police quelling an assault, or verbally or physically interfered with a lawful arrest by a police officer. [180] The elements of the charge are further summarized by Baynton J. in R. v. L.S.L., (SK KB), [1991] S.J.No. 30, 89 Sask. R. 267 (Q.B.), as follows at page 3:

(1) Did the conduct “obstruct the police officer?

(2) Was the obstruction “wilful”?

(3) Did the conduct obstruct the police officer “in the execution of his duty”? [181] Citing Lord Goddard in Hinchcliffe v. Sheldon, [1955] 3 All E.R. 406, Baynton J. noted that “obstruction means, for thispurpose, making it more difficult for the police to carry out their duties” (at page 6). He then goes on to note the remarks of Gerein J. inR. v. Johnson, (SK KB), [1985] S.J. No. 508, 41 Sask. R. 205 (Q.B.).

In that case, in which a driver charged withspeeding gave a false name, the Court observed that there was no evidence that the constable who issued the ticket undertook aninvestigation based on that false information. Gerein J. held that “the fact that Cst. George did no embark upon an investigation did notexonerate the accused. The accused intended to mislead the officer and actually achieved that end as is demonstrated by the fact that theticket was issued in the [false name]” (at para. 8). [182] The “wilful” component was dealt with by Baynton J. by adopting a comment contained in R. v.

Goodman (1951), (BC CA), 99 C.C.C. 366 (B.C.C.A.) that defined “wilfully” to mean “a state of circumstances where the person chargedknows what he is doing and intends to do what he is doing, and is a free agent” (at page 6). [183] With respect to the third element, that being that the conduct obstructed the peace officer “in the execution of his duty,”Baynton J. noted that the duties of a police officer are found both in common law and in statute, and reiterated that it is not enough that apeace officer be on duty when obstructed; rather, the obstruction must relate to the execution by a police officer of his duty.

There is norequirement that the officer be involved in the performance of a specific duty at the time of the obstruction. [184] Under s. 129, the accused must actually obstruct the officer in the course of his/her duty, in the sense of having someimpact on an officer’s attempt to carry out his/her duties. [185] In Regina v. Tortolano (1975), (ON CA), 28 C.C.C. (2d) 562 (Ont. C.A.), the accused attempted tophysically prevent police officers from arresting a friend. The police were ultimately successful in overcoming the resistance and thenmaking the arrest.

The trial judge held that there could be no conviction for obstructing a peace officer in the execution of their dutiesbecause the police were ultimately successful in carrying out the arrest. The Court of Appeal held that this reasoning was erroneous. Writing for the Court, Dubin J.A. (as he then was) referred to the case of Hinchcliffe v.

Sheldon, [1955], 3 All E.R. 406, in which LordChief Justice Goddard stated: “Obstructing” means, for this purpose, making it more difficult for the police to carry out their duties. [186] Justice Dubin held that the fact that the officers were successful in making the arrest was not a defence to the charge ofobstructing a peace officer. [187] In Regina v. Soltys (1980), (BC CA), 56 C.C.C. (2d) 43 (B.C.C.A.), the police went to the accused’shome to investigate drunk driving allegations. When they arrived and made a demand for a breath sample, the accused grabbed a glassof rye whiskey and attempted to drink it.

The officer grabbed the glass from his hand. The Court of Appeal held that the actions of theaccused constituted an obstruction of the officer investigating the drunk driving allegations.

The Court adopted the following definition of “obstruct” from Black’s Law Dictionary, 5th edition: “To impede, to interpose impediments to the hindrance or frustration of some actor service; as to obstruct an officer in the execution of his duty.” The Court held that the accused knew that drinking whisky when thedemand was made would have made it more difficult for the police to carry out their investigation. [188] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor,among others, to take into account when assessing the credibility of the witness’s testimony.

This common sense proposition applies toan accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises specific concern. Anyassumption that an accused will lie to secure his or her acquittal, simply because of his status as an accused, flies in the face of thepresumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. [189] In most cases, considering the accused’s motive to lie in assessing his or her credibility as a witness is a factor that issimply unhelpful.

A trial judge’s consideration of an accused’s motivation to be untruthful must be examined within the context of thetrial and the reasons as a whole. A trial judge must not undermine the presumption of innocence. See R. v. Laboucan (April 8), 2010

SCC 12, [2010] S.C.J. No. 12 (S.C.C.). [190] The Crown has not satisfied the court beyond a reasonable doubt of the essential elements of the charge against theaccused. [191] I find the accused not guilty of wilfully obstructing P.C. Henkel in the execution of his duty by intentionally impeding hisway, contrary to the Criminal Code. I do not find that the accused deliberately committed any positive acts intended to obstruct theofficer in the course of his duty.

Again, I have considered all of the surrounding circumstances and find that his conduct was not wilful. [192] To obstruct means to interrupt, make difficult, get in the way of something, to impede or hinder. [193] The issue in part may also be concerned with the tendency of the accused’s conduct, not the actual result of it. I am furthernot satisfied that a reasonable person, aware of the circumstances, would conclude that what the accused did would have a tendency toobstruct the course of justice. [194] It is not enough that what the accused did accidentally obstruct the officer.

The accused must know what he was doingobstructed officer Henkel and intended to impede his way. [195] I have considered what the accused did or did not do. I have considered how he did or did not do it, and I have consideredwhat he said or did not say about it, all to determine his state of mind. [196] I have reviewed and looked at the accused’s conduct, before, at the time and after those approximate ten seconds onOctober 20, 2008. Liability arguably is judged by the accused’s state of mind, not the success or failure of his conduct to actuallyobstruct the officer. [197] I agree with counsel for the accused.

The police did not anticipate Mr. Kiradziev and others potentially to be in front of thedoor. Detective Henkel testified that nowhere in the briefing notes was it mentioned that a six-foot-nine, 450-pound individual would bein front of the doorway. The ETF was caught by surprise. [198] For every three photographs one second elapsed. Photograph 1A represents .3 of a second. Exhibit 1 … 1H, someseconds into the raid, shows many hands that are grabbing Mr. Kiradziev, pushing and pulling Mr. Kiradziev in different directions. In1H we see plainclothes officers. [199] Mr.

Kiradziev is very large, six-feet-nine and, with shoes, even taller. He’s testified that the doorframe was six-feet-sevenor -eight inches. He has to duck every time he goes through doorways. Exhibit 1A shows people behind him inside the club, inside thelobby area of the club. [200] I agree that even if Mr. Kiradziev had wanted to get down to the ground, based on the pictures, e.g., 1H, or even 1D whichwas 1.1 second into the raid, there was nowhere for Mr. Kiradziev to go. [201] Exhibit 1N, around three to four seconds into the raid, Mr.

Kiradziev is nowhere to be found in that picture or thefollowing pictures. [202] Ms. Delgado submits that the exhibits show that the accused proceeded to get into a position where he is blocking thedoorway more and more.

She further submits that even as of photo 1A, there were a number of different ways he could have gone. [203] I am not prepared to accept the submission that it just doesn’t make common sense that the accused, in this business for 18years, would not intend to protect the interest of his employer. [204] It is to the club’s interest to have the police delayed when they’re raiding the club and every second the accused can delaythe police coming in or the police clearing the doorway so they and the ETF can come in is to the advantage of the club. This is what theCrown submits. [205] Ms. Delgado further submits Mr.

Kiradziev would not block the doorway accidentally but purposefully. They tried tomove him. Even when he was brought to the ground, it is submitted, he did not cooperate in going down very easily. [206] The question is whether the Crown has proved the charges beyond a reasonable doubt. To decide that question, I mustdetermine the credibility of the witnesses, relying on the tests provided by the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 SCR 742, supra, at paragraph 161. [207] The Crown submits that the evidence established beyond certainty, but more is required than proof that the accused isprobably guilty. If I find that the accused is probably guilty, then I must acquit. As a result the Supreme Court of Canada cases havedetermined that proof beyond a “reasonable doubt” is much closer to an absolute certainty than it is to probable guilt. [208] Where credibility is the key issue of the case, as in this case, then reasonable doubt will also apply to that issue.

In thiscase, I have applied the Supreme Court of Canada’s instructions for trial judges as set out in R. v. W.(D.), (SCC), [1991]1 SCR 742, with respect to reasonable doubt related to credibility issues, which are as follows: First, if I believe the evidence of theaccused, I must acquit. Second, if I do not believe the testimony of the accused, but am left in reasonable doubt by it, then I must acquit.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I doaccept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [209] It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion on theCrown. Moreover, given the second and third steps in the W.(D.) analysis, it is not necessary for me to believe or accept the accused’sevidence for there to be a reasonable doubt. The evidence as a whole may leave me with a reasonable doubt.

In other words, at the end

of the day in a criminal trial, what I must not do is simply choose between alternative versions and, having done so, convict the accusedperson if I prefer the Crown’s version. The issue at the end of the day in a criminal trial is not credibility, but reasonable doubt (see R. v.Mah, 2002 NSCA 99 at paragraph 42). [210] I conclude that the accused did not interfere with and temporarily delay Officer Henkel. [211] Having made the factual findings which I have set out above, those facts do not prove beyond a reasonable doubt that Mr.Kiradziev committed the offence of obstructing a peace officer contrary to

section 129(

a) of the Criminal Code. Again the essentialelements of the offence of obstructing a peace officer in the execution of his duties were succinctly set out in the case of R. v. Tortolano(1975), (ON CA), 28 CCC (2d) 562 (Ont. C.A.). In that case, Dubin J.A. reviewed the case of R. v.

Westlie, (BC CA), [1971] 2 WWR 417 (BCCA) and in Tortolano supra at paragraph 185, he agreed that the essential ingredients ofthe offence of obstructing a peace officer in the execution of his duties were as follows: “(1) that there was an obstructing of a Constable, (2) that the obstructing affected the Constable in the execution of a duty that he was then executing, and (3) that the person obstructing did so wilfully.” [212] In the Tortolano case, supra, the Ontario Court of Appeal also made two other important rulings in paragraphs 12 and 13with respect to the offence of obstructing any peace officer.

The court ruled that, under s.129 of the Criminal Code (then s.110), theobstruction must relate to the execution by a Constable of his duties, and not merely while the officer was on duty.

The Ontario Court ofAppeal also ruled that a person may still be convicted of the offence of obstructing a peace officer even if the person did not completelyprevent the officer from carrying out his duty. [213] Given the definition of “obstruction” and the findings of fact that I have made, I am again not satisfied beyond a reasonabledoubt that the accused’s actions were done wilfully. [214] For the foregoing reasons, I conclude that the Crown has not proved all of the essential elements of the obstruction chargebeyond a reasonable doubt and therefore I find Mr. Kiradziev not guilty of this charge.

Released: April 29, 2010 Signed: “Justice M. A. Zuker”