Her Majesty the Queen - v. -, 2013 SKPC 115

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 115 Date: July 17, 2013 Information: 46423119 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Howard Pauli Appearing: Ms. S. Fillo For the Crown Mr. M. Bodnar, Q.C. For the Defendant JUDGMENT B.G. MORGAN , J Introduction [ 1 ] Mr. Pauli initially faced three counts, all alleged to have occurred July 27, 2012, at a residence on Wilson Crescent in Saskatoon: Count #1 - commit an assault on Karen Pauli, contrary to s. 266 of the Criminal Code ;

Count #2 - commit an assault on Constable Krowchenko #724 with intent to resist the lawful arrest of himself, contrary to s. 270(1)(

b) ofthe Criminal Code; Count #3 - wilfully obstruct Constable Krowchenko #274 a peace officer engaged in the lawful execution of her duty by failing toprovide his name or personal information incident to arrest, contrary to s. 129(

a) of the Criminal Code. All matters were proceeded with summarily. [2] The background is not in dispute. Two members of the Saskatoon Police Service went to a residence in Saskatoon inresponse to a dispatch which was initiated by a 911 call. The daughter of Mr. and Mrs. Pauli, both resident at that house, had stated thather father had strangled her mother and pushed her into the tub. When the police arrived, Mr. Pauli told the officers that they had nopermission to come in. Cst. Krowchenko stated that the police were there to investigate, and that she needed to see that everything wasalright. Mr.

Pauli called Mrs. Pauli, then went to a bedroom in the house. When Mrs. Pauli came to the door, she asked the officers toplease leave, indicating that Mr. Pauli was upset, that he had pushed her into the tub, but that he was now okay. [3] Constable Krowchenko entered the house and went to a room where Mr. Pauli had retreated to while the police spoke to hiswife at the door. Constable Krowchenko advised Mr. Pauli he was under arrest for “domestic assault”, which triggered a scuffleultimately involving both officers, Mr. Pauli, Mrs. Pauli and the family cat. Eventually Mr.

Pauli was taken to the police station, wherehe continued to refuse to identify himself, although he was subsequently identified by another officer who apparently had someknowledge of Mr. Pauli. [4] The Crown closed its case after calling both officers to testify. The defence elected not to call evidence. Ms. Fillo indicatedthat she was not seeking a conviction on Count #1, the alleged assault which initiated the entire incident. Issues [5] There are four issues which will be addressed in order, as follows: 1. Did the police have lawful authority to enter into the residence? 2.

Did the police have the power to arrest Mr. Pauli? 3. Did the actions of Mr. Pauli constitute an assault with respect to Count #2? 4. Was Mr. Pauli required to identify himself to the police with respect to Count #3? 1. Did the police have lawful authority to enter into the residence? [6] The police had lawful authority to be in the residence. In R. v. Godoy, [1999] 1 S.C.R. 311, (S.C.C.), theCourt was dealing with a situation in which the police entered a home from which a disconnected emergency 911 call had been made,despite being denied entry by a resident.

The Court held that public policy gave the police authority to investigate 911 calls, and thenlooked into whether or not they could enter dwelling houses in doing so, holding that such entry would depend on the circumstances ofeach case. (See para. 11 Godoy.) [7] The Court then held that the “accepted test” for evaluating common law powers and duty of the police were set out in the

earlier decision of R. v. Waterfield , [1963] 3 All E.R. 659 (C.C.A.) and held that, as there is no doubt that forcible entry by police into a private dwelling home constitutes interference with a person’s liberty and property, it is necessary to consider two questions: 1. Does the conduct fall within the general scope of any duty imposed by statute or recognized at common law? 2. Does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty? (See para. 12 Godoy. ) [ 8 ] Dealing firstly with the statutory duties of the police in Saskatchewan, The Police Act , 1990 , S.S. 1990-1991, c. P-15.01, states in s. 25(

b) that a municipality “ shall provide policing services to maintain a reasonable standard of law enforcement” (emphasis added). Section 36(2) of that Act states: . . . unless otherwise indicated in his or her appointment, a member [of the police service] has the power and responsibility to:

a) perform all duties that are assigned to constables or peace officers in relation to: (

i) the preservation of peace; (ii) the prevention of crime and offences against the laws in force in the municipality; and (iii) the apprehension of criminals, offenders and others who may lawfully be taken into custody. Thus, I hold that the conduct of the police in entering the house to investigate falls within their statutory duty, and is as well authorized on the authority of Godoy , supra .

That being the case, it is necessary to see if their conduct involved an unjustifiable use of their powers associated with that duty. [ 9 ] The Court in Godoy , supra , held that “ . . . the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller” (see para. 22). I note in this case that there is no evidence of a forced entry; rather, the police entered after speaking to Mrs. Pauli. I appreciate that Mr. Pauli stated that the police did not have his permission to enter, but there is no evidence that Mrs.

Pauli denied the police entry, albeit it is clear from her comments that she would rather they simply left. However, this is not a determinative factor. [ 10 ] In this case, I find the police had the following information, which formed the basis of the belief of the two officers seeking entry that a crime had been committed therein, irrespective of Mrs. Pauli’s apparent wishes: 1. A child of the apparent residents of that home had made a call indicating that there had been a domestic assault of some apparent severity; 2.

As Constable Krowchenko approached the house, she could see through the window a male in the living room, against a background in which the allegation was that a male had assaulted a female; 3. Cst. Krowchenko could hear that male state that the police are present, and that male individual told Cst. Krowchenko that she had no permission to come in; 4. Cst. Krowchenko responded that she was there to investigate and that she needed to see everything was alright; 5. The male called to a woman, who came to the door; 6.

At the door this woman (who turned out to be Karen Pauli, the alleged victim of the assault) spoke in a low voice, holding out her hands towards the police, telling them to please go away and not upset the man. Ms. Pauli went on to say that he got angry, pushed her into the tub, but that he was now okay. [ 11 ] At this point both officers (Constable Ward was also at the door) had information from an apparent victim that the crime of

assault had been committed. I pause to note that Constable Ward testified that she was the one who actually had some of the conversation with individuals at the door, not Constable Krowchenko, but nothing turns on this. I am satisfied the conversations occurred as set out by each witness independently, and it may have been that Constable Ward was actually having the conversation and Constable Krowchenko was referring to the conversation that she heard. Nothing turns on this, even if one of the officers is mistaken on who actually said precisely what.

I am satisfied both officers were present and someone had the conversations with the officers as set out, which form the basis for officers wanting to enter the home to, at that point, certainly investigate further and, from Constable Krowchenko’s apparent view, to effect an arrest based on what they believed had occurred. [ 12 ] In the totality of the circumstances of the case, I am fully satisfied that the police had the lawful authority to be in the residence in order to perform the statutory duties they possessed under s. 36 of The Police Act , 1990 , irrespective of any common law duty they may have had, and that their conduct did not involve an unjustifiable use of powers associated with that duty. 2.

Did the police have the power to arrest Mr. Pauli? [ 13 ] Constable Krowchenko’s evidence is that when she entered the home, she went to the door of the room where Mr. Pauli had retreated to, and as she approached, he slammed the door in her face, her stopping that motion from becoming complete by sticking her foot in the door. She then pushed open the door, told him he was under arrest for domestic assault, and tried to take him into custody. [ 14 ] The nub of the defence argument, as I understand it, is that s. 495 of the Criminal Code , the

section that deals with the police power to arrest without warrant, puts certain limitations on those powers. Put another way, the argument is that the general rule, in a situation such as the one facing Cst. Krowchenko, is that she should have issued Mr. Pauli an Appearance Notice rather than taking him into custody. [ 15 ] With respect to that argument, the police have a number of different options in a case such as this. I also note that s. 495 contains three specific exceptions to the general rule being argued by the defence. Cst.

Krowchenko did indicate that she wanted to have a “no contact” clause in place, preventing Mr. Pauli from having contact with Mrs. Pauli. During re-examination on that point, it became clear that Cst. Krowchenko also wanted to get Mr. Pauli out of the house. Whereas she would have liked to have seen a “no contact” clause as part of any release conditions Mr. Pauli may have been placed under if he was released by an Officer in Charge, at the detachment, her evidence was that she could not impose such a condition on an Appearance Notice.

Further, I interpret her concern as being a clear indication that she saw the need to “prevent the continuation or repetition of the offence or the commission of another offence”, one of the exceptions to the general rule being advanced by the defence, by ensuring Mr. Pauli was removed from the house in the short term. [ 16 ] Further, another exception contained in s. 495 allows an arrest if such is needed “to establish the identity of the person”. I am referring to Mr. Pauli by name throughout this decision as he was identified as that individual at trial.

However, although one might assume the male in the house was in fact Mr. Pauli, the officers did not necessarily know that at the time of the alleged offence, and they certainly had a duty to ascertain his identity, as discussed later in this decision. I find that, from the time that the police arrived, Mr. Pauli was not cooperative in any aspect of his dealings with the police, including the point where he was trying to pull away from Cst. Krowchenko, was refusing to identify himself, was refusing to acknowledge the Charter information that Cst.

Krowchenko was trying to convey to him after the situation in the house had been stabilized, and that he continued to act in that fashion at the police station, where he continued to refuse to identify himself. [ 17 ] I am satisfied that the police officer had the authority to arrest Mr. Pauli in the circumstances of this case. 3. Did the actions of Mr. Pauli constitute an assault with respect to Count #2? [ 18 ] The relevant portions of assault for the purposes of this decision are contained in s. 265 of the Criminal Code . S. 265(1) A person commits an assault when

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

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose. [ 19 ] As Constable Krowchenko approached the room where Mr. Pauli was, she observed through the open door that he was swinging his arms back and forth, that his fists were clenched, and that he was standing. He slammed the door in her face and told her to “fuck off”, although she stopped the door being slammed by putting her foot there.

Her evidence was clear that she had not yet walked into the room when she made these observations. [ 20 ] She then pushed the door open, told Mr. Pauli he was under arrest for domestic assault, and moved to grab his arms. At that point, Mr. Pauli pulled his arm violently out of her grasp and in her words, “he kept ripping his arms away from me”. [ 21 ] While this was going on, Ms. Pauli suddenly grabbed Constable Krowchenko from behind saying she didn’t want him arrested and essentially tried to force herself between Mr. Pauli and the constable.

By now, Constable Ward had come in to assist, and the family cat had entered the fray, which, using Constable Krowchenko’s words, poured “gasoline on the fire”. [ 22 ] This scuffle lasted for a minute or so, though eventually order was restored, Mr. Pauli was handcuffed and taken to a police car. At this point he was being very uncooperative, dropping to the ground as he was being led to the car etc., and refusing to provide his name. [ 23 ] The argument of the defence is that Mr.

Pauli did not actually assault anyone, leaving aside the portion of the charge requiring him to have done so “with intent to resist the lawful arrest of himself”. I agree with that argument. In my view, an assault was not made out under s. 265(1)(

b) as the officer approached the door. In my view, Mr.

Pauli was still angry, and whereas he had clenched fists and was swinging his arms around, in these circumstances, I don’t interpret those actions as being a threat or an attempt directed to the officer to apply force to her. [ 24 ] Similarly slamming the door prior to the officer reaching the door was not an assault by applying force indirectly as required under s. 265(1)(a); rather, it was an effort to block the officer’s access to the room. [ 25 ] Finally, the act of pulling away and generally being totally uncooperative does not constitute an assault in these circumstances. There is no evidence that Mr.

Pauli at any time made any aggressive blow or application of force to either officer. At all times, he was trying to pull away, and was not attempting to, threatening to, or in fact participating in any assaultive behaviour. [ 26 ] Essentially the same situation occurred in R. v. Winters , 2002 SKPC 24 , a decision of Judge Kolenick of this Court. Ms. Winters was charged with two counts, the first count being identical to Count #2 of this case, that is, assaulting a named police officer with intent to resist the lawful arrest of himself or herself, contrary as well to s. 270(1) (b).

The evidence in that case was that the accused was resisting the efforts of the officers to place her under arrest, by struggling, twisting her arm and screaming obscenities. On that evidence, Judge Kolenick held that whereas there was “ample evidence” of the accused resisting the arrest, the evidence did not establish that the accused applied any force. I am of the view that the same situation occurred in this case with respect to the assault charge on Count #2. [ 27 ] However, that does not end the matter. Judge Kolenick then looked into whether or not s. 129 (

a) of the Criminal Code could be an included offence, and after conducting his analysis he held that the evidence was sufficient to establish “that the conduct of the accused reflected in her an intention to resist a lawful arrest by a peace officer”, concluding that she was therefore guilty of the included offence of, in the wording of s. 129 (a), “ . . . resists or wilfully obstructs a public officer or peace officer in the execution of her duty . . .”. [ 28 ] I agree with that reasoning and find it to be equally applicable to this case. As Judge Kolenick noted “. . . the essential element of resist arrest in s. 129 (

a) of the Criminal Code is also contemplated as being a constituent part of the offence of assault peace

officer with the intention of resisting arrest, contrary to s. 270(1)(b)”. [ 29 ] Accordingly, I find that Mr. Pauli is not guilty of the charge under s. 270(1) (

b) of the Criminal Code , but is guilty of the included offence under s. 129 (

a) of the Criminal Code of resisting or wilfully obstructing the peace officer in the execution of her duty. 4. Was Mr. Pauli required to identify himself to the police with respect to Count #3? [ 30 ] Defence argues, especially in the case of a

summary offence matter, that the only time one is required to identify oneself to the police is when one is driving a motor vehicle. [ 31 ] I agree generally with the proposition that there is no legal obligation, absent certain circumstances, to provide your name or identification to the police. The issue as to whether or not an individual was under a legal obligation to identify herself to the police in all circumstances was canvassed in R. v. Guthrie , 1982 ABCA 201 . In that case, two police officers were suspicious that Ms. Guthrie may have been engaged in criminal conduct.

One police officer saw some movement in a police parking lot enclosure, although he could not identify the individual involved. The officers were, however, aware of other break-ins to police officers’ private vehicles parked in that lot. The officers then moved their vehicle onto the street to further investigate, at which point they saw the accused, who refused to identify herself or to otherwise interact with the police.

At trial, the Provincial Court Judge held that, in those circumstances, her failure to identify herself amounted to an obstruction of the officer in the execution of his duty. [ 32 ] In reversing that decision, the Alberta Court of Appeal cited the case of Rice v.

Connelly (1966), 2 All E.R. 649 , in which Lord Parker held that it “seems to me quite clear that though every citizen has a moral duty, or, if you like, a social duty to assist the police, there is no legal duty to that effect and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place short, of course, of arrest”. [ 33 ] However, in concluding its analysis, the Alberta Court of Appeal held that there is no legal duty for a suspect to provide information in circumstances where the law does not mandate that he do so .

However, this case is distinctly different. Particularly, in concluding, the Court in Guthrie , supra , noted: In the circumstances disclosed by the facts given to us including the absence of the apparent commission by the appellant of any offence known to law , her failure to identify and account for herself at the request of Constable Gentle arose within lawful excuse and did not constitute the obstruction charge. (Emphasis added) [ 34 ] In the present case, Mr. Pauli was under arrest.

He was under arrest because the arresting officer had reasonable and probable grounds to believe that he had committed the offence of assault. When Constable Krowchenko asked him his name, he wouldn’t respond. Cst. Krowchenko testified that he was “not polite in any way . . . called me a feminist Nazi . . . I’m not telling you anything”. Mr. Pauli was totally uncooperative, and wouldn’t respond to the Charter rights that Constable Krowchenko was trying to read to him.

At the booking desk at the Saskatoon Police Station, he continued to refuse to provide his name to anyone, although he had apparently calmed down somewhat. Constable Krowchenko doesn’t actually know how he was identified, although she did testify that the name of Mr. Pauli was obtained from Sergeant Louttit. Eventually, once he was fingerprinted and handcuffed, he was released. [ 35 ] The Identification of Criminals Act , RSC 1985, C.

I-1, s. 2, states that any person who is in lawful custody charged with an indictable offence “may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council”. [ 36 ] Section 34(1) (

a) of The

Interpretation Act , RSC 1985, c. I-21, holds that where an enactment creates an offence, “the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment”. An assault may be prosecuted by indictment. Until such time as the Crown elects whether to proceed by indictment or through

summary proceedings on a hybrid offence such as an assault, the offence is deemed to be by indictment (see R. v. Huff , 1979 ABCA 234 , para.

18). Thus, the law allowed for Mr. Pauli to be fingerprinted. [37] In order to have an effective justice system, individuals who are in police custody must be identified, prior to being released. Under s. 497 of the Criminal Code, a peace officer is not to release a person whom he has arrested without a warrant, as in this case, ifthe officer believes, on reasonable grounds, that it is necessary to detain the person in order to establish the identity of the person. Thus,the police have a positive duty to identify a detainee. [38] In attempting to identify Mr.

Pauli, the police were acting in the lawful execution of their duty. Failure by an individual toidentify himself to an officer who is in the execution of his general duty to enforce the law is an offence (see R. v. Moore (1979), (SCC), 43 C.C.C. 2d 83 (S.C.C.)). [39] Mr. Pauli is guilty of Count #3. [40] In conclusion: 1. Mr. Pauli is not guilty of Count #1, the assault; 2. Mr. Pauli is not guilty of the charge of assaulting Constable Krowchenko with intent to resist the lawful arrest of himself, contrary tos. 270(1)(

b) of the Criminal Code, but is guilty of the included offence of obstruction of justice under s. 129(1)(

a) of the Criminal Codeby resisting or wilfully obstructing Constable Krowchenko, a peace officer, in the execution of her duty; 3. Mr. Pauli is guilty of the charge of wilfully obstructing Constable Krowchenko, a peace officer, engaged in the lawful execution ofher duty by failing to provide his name and personal information incident to arrest, contrary to s. 129(

a) of the Criminal Code. _______________________ B.G. Morgan, J