His Majesty the King - v. -, 2022 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 43 Date: October 17, 2022 Information: 90438920 Location: Nipawin _____________________________________________________________________________ Between: His Majesty the King - and - Curtis K itchener Appearing: Lori O'Connor For the Crown Alexander Shramko For the Accused J UDGMENT L. S TANG, J Introduction [ 1 ] During the afternoon of June 26, 2021, the accused, Curtis Kitchener [Kitchener] was in police custody.

Specifically, he was in a cell at the Royal Canadian Mounted Police [RCMP] detachment in Nipawin, Saskatchewan; and he was not sharing the cell with any other detainee. The cell is equipped with a video camera and the video feed was being monitored by a guard who is not a peace officer. [ 2 ] The guard monitoring the accused apparently observed something of concern in the cell as he called for the assistance of

RCMP officers to attend to the cell. Both Constable Curtis Harbour (now Corporal Curtis Harbour) [Harbour] and Constable Hunter Favel [Favel] were present in the detachment and immediately attended to the cell where Kitchener was located. What occurred in the cell resulted in Kitchener being charged with the offence of assaulting a peace officer as set out in Information 90438920. This is my judgement following trial of this charge. [ 3 ] For the reasons set out herein, I find Kitchener to be guilty of the charged offence of assaulting a peace officer. Position of the Defence [ 4 ] Counsel for Kitchener observed that there was no evidence at the trial to explain the reason(

s) why his client was arrested and why he was being held in custody that day. Consequently, he pointed out that the Crown has failed to prove that Kitchener’s arrest and subsequent detention were lawful, which, he argued, is an essential element to the offence charged. [ 5 ] Counsel for Kitchener also argued that the evidence simply falls short of proving beyond a reasonable doubt that Kitchener intended to apply force to Favel. If correct this would result in an acquittal on the offence charged and on the potential lessor included offence of assault under s. 266 of the Criminal Code .

Position of the Crown [ 6 ] The Crown argued that reasons for and circumstances of Kitchener’s arrest, and subsequent detention, are not material to the issue of whether Favel was in the lawful execution of his duty when the assault occurred.

The Crown submitted further there was ample evidence upon which the court could, and should, find that Favel and Harbour were acting in the lawful execution of their duties when they responded to the cell and dealt with Kitchener in the manner they did. [ 7 ] The Crown also argued that both officers provided credible and reliable evidence that, along with the video footage of what occurred in the cell, proves beyond a reasonable doubt that Kitchener intended to apply force to Favel.

The Issues [ 8 ] Of course, the primary issue addressed in this decision is whether the Crown has proven beyond a reasonable doubt all essential elements of the offence charged. Of particular importance in this case are the following more specific issues: (

a) Has the Crown proven beyond a reasonable doubt that Kitchener intended to apply force to Favel? (

b) Is it necessary for the Crown to prove that Kitchener’s arrest and subsequent detention were lawful, in order to establish that Favel was acting in the lawful execution of his duties as a peace officer? (

c) Has the Crown proven beyond a reasonable doubt that Favel was acting in the lawful execution of his duties when Kitchener applied force to him? The Evidence [ 9 ] During the trial the Crown called two witnesses: Harbour and Favel. Additionally, an important exhibit received in evidence was a copy of video footage of Kitchener in the cell from just prior to the two officers entering the cell until they exited. The defence did

not present evidence. [ 10 ] Both Crown witnesses were credible and provided reliable testimony. Their recollections of the incident were clear and detailed. Additionally, their evidence is corroborated by the video recording and the photograph of Favel’s injury. Consequently, I have no difficulty in accepting their testimony as reliable and factual evidence that I summarize as follows. [ 11 ] Harbour was a peace officer and member of the RCMP for over 14 years. Favel was a peace officer for seven years. Both officers were on duty and at the detachment in Nipawin the afternoon of June 26, 2021.

At 4:10 p.m. they received a call from the guard in the cell block area indicating that there was an urgent situation requiring police attention in the cell. Both officers immediately responded and went to the cell. Harbour quickly glanced through the small window in the cell door and then entered the cell, with Favel following immediately behind. Upon glancing through the window and entering the cell, they observed that Kitchener has his own pants wrapped around his neck and was on the floor with his head inside the toilet bowl.

This was entirely consistent with the information that had been communicated to them by the guard. [ 12 ] Harbour immediately went to the accused, pulled him away from the toilet, and removed the pants from around his neck. Harbour and Favel briefly considered exiting the cell at this point but with minimal discussion they quickly decided that they needed to remove Kitchener’s remaining clothing, except for his underwear. Harbour told Kitchener that they would be taking his shirt and socks and they needed to be removed or would be cut off.

Kitchener did not cooperate but rather he actively resisted and physically struggled with Harbour and Favel while they were attempting to remove additional clothing. The video recording shows that Harbour did not have too much difficulty removing Kitchener’s socks, but then due to Kitchener’s resistance, both officers had considerable difficulty removing his shirt. [ 13 ] In attempting to gain control of Kitchener, Harbour and Favel took him to the floor. Kitchener continued to struggle and resist.

In doing so, he grabbed on to Favel’s duty belt with both hands and held on, in what may have been an effort to stand up. One of his hands was grabbing Favel’s belt close to the location of Favel’s gun. In his testimony Favel described this moment as follows: “he grabbed onto me and my belt right behind my gun.” In describing Kitchener’s efforts to get up Favel said: “he got up to a half crouched standing position”. [ 14 ] It should be noted that although Harbour saw Kitchener grab Favel’s belt and Favel felt it, neither officer saw or felt him touch Favel’s gun or any other tool or weapon attached to the belt.

However, both officers were worried about the possibility of Kitchener accessing items on Favel’s belt. It should also be noted that while Kitchener was resisting, the officers were telling him to comply with their directions to remove additional items of his clothing. [ 15 ] Upon Kitchener grabbing onto Favel’s belt, both officers perceived what I would describe as a heightened need to gain control of Kitchener. To do so both officers increased their level of force to include strikes to Kitchener’s body.

These strikes had the desired effect as Kitchener let go of Favel’s belt, he was placed back on the floor and the officers were able to remove his shirt. [ 16 ] At one point during the struggle Kitchener’s head made contact with Favel’s face with enough force to cause a cut to Favel’s lip. In his testimony Favel called this contact a “head butt”. Cst.

Harbour did not see this. [ 17 ] Both Harbour and Favel testified that they perceived this incident to be a situation where Kitchener was potentially in imminent danger; and that the decision to remove additional clothing from Kitchener was made for the purpose of preventing Kitchener from using those clothes to harm himself. [ 18 ] Both officers also opined that Kitchener may have been intoxicated. This was based on Kitchener’s mood and behavior and the fact that he smelled of alcohol. [ 19 ] The ‘timestamped’ video footage was important evidence in this case.

It is a recording of all the interactions between Kitchener and both officers for the duration of the incident. It does however have certain notable limitations. Firstly, it is a video recording without sound; and secondly, it does not record every detail because it only records what is visible from the perspective of the location of the camera in the cell. An example of this latter limitation is the times when both officers have their backs to the camera thus blocking the sightline to whatever is in front of them. Notwithstanding these limitations the video clearly shows the following:

(

a) At 4:11:03, Kitchener has removed his pants and has them wrapped around his neck; (

b) At 4:11:11, Kitchener has put his head into the toilet bowl, and he stays in this position until Harbour enters the cell and moves him; (

c) At 4:12:29, the cell door opens and Harbour steps in; he immediately steps toward Kitchener and pulls him away from the toilet; (

d) At 4:12:34, both officers are in the cell with Kitchener and have removed the pants from his neck; (

e) Shortly thereafter, the physical struggle between Kitchener and the two officers starts and continues for almost two minutes; (

f) For at least seven seconds from 4:13:15 to 4:13:22, Kitchener’s right hand is holding on to Favel’s belt on the left side of Favel’s body; and, (

g) At 4:14:30, the two officers, having now removed Kitchener’s socks and shirt, exit the cell. [ 20 ] The specific physical contact between Kitchener and Favel that caused the injury to Favel’s lip was not distinguishable from the general physical conflict in the video recording. [ 21 ] Although they were generally aware there was a detainee in one of the cells that afternoon, prior to their interactions with Kitchener in the cell, neither Harbour nor Favel had any direct knowledge of the reason Kitchener had been arrested or the reason for his ongoing detention that day.

Analysis [ 22 ] The essential elements of an offence under s. 270(1) of the Criminal Code can be summarized as follows: (

a) That the accused committed an assault, as defined in s. 265(1) of the Criminal Code , against another person; (

b) The date and time of the assault; (

c) Jurisdiction; (

d) That the person assaulted was a ‘peace officer’; (

e) That at the time of the assault the peace officer was ‘in the execution of their duty’; and, (

f) That the accused knew that the person assaulted was a peace officer. [1]

[23] In this case, defence counsel’s arguments were limited to the two essential elements of the offence discussed below. Defencecounsel did not raise any issues with respect to the other essential elements of the offence. I have nonetheless considered whether theevidence is sufficient to prove them, and I find that the Crown has proven them beyond a reasonable doubt. Intent to apply force [24] In this case defence argued the evidence was insufficient to establish that Kitchener intended to apply force to Favel.

I disagree and find that the evidence does establish that Kitchener had the required general intent[2] to apply force to Favel. Both officerstestified that Kitchener was actively resisting their efforts to remove his socks and shirt and that he was not complying with their verbalinstructions. Additionally, I note the almost two minute duration of the entire physical altercation along with the significant seven secondduration of Kitchener’s grip on Favel’s belt.

Based on this evidence, I have no difficulty in finding beyond a reasonable doubt thatKitchener intended to apply force to Favel. [25] Although not specifically raised by defence counsel, another important part of the definition of assault is that the force isapplied without the consent of the other person.

In this case it is apparent that Favel did not consent to any application of force.Consequently, the essential element that Kitchener assaulted Favel, has been proven beyond a reasonable doubt. [26] In this case it is important that I specify the factual basis of the physical application of force by Kitchener to Favel. While Ihave no concerns about Favel’s evidence that he received a “head butt” from Kitchener causing injury to his lip, I find that the evidenceis insufficient to prove that Kitchener intended to use his head to strike Favel’s face.

It is quite possible that this specific contact occurredinadvertently because of Kitchener’s physical resistance and struggle with the two officers. As such, I find the application of forceincludes Kitchener’s general physical struggle with Favel, which includes his head contacting Favel’s face and his grabbing on to Favel’sduty belt. However, I specifically find that the latter was intentional while the former was an inadvertent consequence of the generalstruggle.

Lawful execution of duty [27] Defence counsel has also argued that the Crown has failed to prove that Favel was in the execution of his duties when thisincident occurred. The heart of the defence’s argument in this regard is the fact that the Crown presented no evidence of thecircumstances of Kitchener’s arrest that presumably occurred at some earlier time. Thus, the Crown has not proven that Kitchener’sarrest was lawful. Additionally, the Crown called no evidence to establish that Kitchener was being lawfully detained in the cell at thetime of the assault.

Crown counsel counters this by arguing that in the circumstances of this case they do not need to present evidence onthese issues because they do not affect or have impact on the precise issue of whether Favel was in the lawful execution of his duties. [28] There is a plethora of jurisprudence that stands for the proposition that a peace officer who is arresting someone must beeffecting a lawful arrest in order to be acting in the lawful execution of their duties.

This includes the two decisions filed by defence counsel.[3] However, Crown counsel correctly pointed out, in argument and through jurisprudence filed, that the police and other peaceofficers perform many duties and tasks other than arresting people that are within the scope of the lawful execution of their duties. In thedecision R v Backhouse (2005), (ON CA), 194 CCC (3d) 1 (Ont CA), at paragraph 100, the Ontario court of Appealwrote: [100] …Parliament has used a phrase, “execution of duties”, that is capable of a very broad meaning and has tended to be givena broad

interpretation, not limited to express statutory powers. A police officer will be found to be in execution of his or her duty ifacting in accordance with statutory or common law authority. See R. v. Plamondon (1997), (BC CA), 121 C.C.C.(3d) 314 (B.C.C.A.) at para. 30 and R. v. Dedman (1985), (SCC), 20 C.C.C. (3d) 97 (S.C.C.) at 111. [29] In the trial decision Woolridge, Judge Gorman found the accused guilty for assault causing bodily harm to a peace officer forbiting a correctional officer’s finger while the officer was ‘processing’ the intake of the accused at a detention facility.

That incidentarose from the accused’s refusal to hand over his inhaler to the correctional officer; and while the officer was attempting to take theinhaler the accused bit his finger. Judge Gorman found that the correctional officer was acting in the execution of his duties pursuant to statutory authority conferred to him under that province’s Prisons Regulations.[4] [30] Similarly, in the trial decision R v Skinner-Withers, 2006 ONCJ 47, Justice Trotter found the accused guilty of assaulting a peace

officer. The peace officer was a special constable of the Toronto Police Service who was working at a Toronto courthouse where theaccused had been brought for a court hearing. The special constable was in the process of searching the accused in the cell area when theaccused assaulted him. Defence counsel challenged the authority of the special constable to search the accused. Justice Trotter found thatthe special constable had authority to do so.

He wrote, at page 9, “The authority of court officers to conduct searches of inmates enteringthe cells at courthouses may be derived from the common law and provincial legislation.” [31] I note that the two trial decisions above have a similarity with this case, as they both also pertained to assaults that occurred whilethe accused was in custody shortly after being arrested by someone other than the peace officer who was assaulted.

The specific issue ofwhether the absence of proof of a lawful arrest has any impact on the lawfulness of subsequent actions taken by other peace officers, wasapparently not raised in those two cases. The argument advanced by defence counsel is unusual. Neither defence counsel or Crowncounsel submitted any jurisprudence where the same precise issue was previously considered by any court. Nor was I able to locate anysuch jurisprudence. [32] I did locate and review the recent trial judgment of Justice Hildebrandt, R v Herman, 2020 SKQB 69 [Herman] which is notprecisely on point but which I find to be of assistance.

In this case the situation arose during a police officer’s [Cst. Badger] attempt toarrest the accused for public intoxication. The accused’s response was to forcefully strike Cst. Badger in the head. A second policeofficer [Cst. Lemaire] observed the accused strike Cst. Badger and immediately engaged with the accused with the purpose of arrestinghim for the assault he had just witnessed. The accused responded by assaulting Cst. Lemaire. The accused was charged with severalcharges including a charge of assault peace officer on Cst. Badger and assault causing bodily harm to a peace officer on Cst.

Lemaire. [33] Justice Hildebrandt found that Cst. Badger did not have appropriate grounds to arrest the accused when she attempted to do so.As such, the Crown failed to prove that Cst. Badger was in the lawful execution of her duties when she was assaulted, and the accusedwas found not guilty of that offence of assault peace officer.

Notably, Justice Hildebrandt also found that the accused used excessiveforce in resisting that arrest, so he was found guilty of the lessor included offence of simple assault. [34] Notwithstanding her finding that the Crown had failed to prove the lawfulness of the initial arrest, Justice Hildebrandt did findthe accused to be guilty of assault causing bodily harm to a peace officer for his subsequent assault on Cst. Lemaire. Defence counsel inthat case had argued that Cst. Lemaire was furthering the unlawful arrest that had been initiated by Cst. Badger.

Justice Hildebrandt didnot accept that argument as it was unsupported by the evidence. She accepted Cst. Lemaire’s evidence that his intention was to arrest theaccused for what he had just seen which was the accused strike to Cst. Badger. After some description of the changing circumstances,Justice Hildebandt said, at paragraph 53, “He [Cst. Lemaire] correctly assessed the situation as one of an assault on a police officer andacted accordingly in seeking to arrest Mr.

Herman.” [35] The first important and relevant conclusion I draw from Justice Hildebrant’s analysis in Herman is that the Crown’s failure toprove the lawfulness of the initial arrest did not automatically affect or impact the Court’s assessment of a second officer’s lawfulexecution of his duties.

The second important and relevant conclusion I draw from this decision is that the lawful duties of each peaceofficer can differ depending on the changing circumstances of any given situation. [36] In my view, the issue of whether a peace officer was in the lawful execution of their duties must be assessed based on thecircumstances occurring at the moment of the assault.

These circumstances would include what facts were known or believed by thepeace officer at that time, what the peace officer actually did or was doing, the peace officer’s intent or purpose, and the peace officer’slawful authority to take action in the way they did. Was Cst. Favel acting in the lawful execution of his duties? [37] In Canada the police have a common law duty to protect life.

In R v Dedman, (SCC), [1985] 2 SCR 2 at page11, Chief Justice Dickson, writing for the minority, wrote: “The common law duties of police have been described as the preservation ofthe peace, the prevention of crime and the protection of life and property;…”.

Additionally, at page 32, Justice LeDain, writing for themajority, repeated this principal with slightly different wording: “It has been held that at common law the principal duties of policeofficers are the preservation of the peace, the prevention of crime, and the protection of life and property…”. [38] In R v Godoy, (SCC), [1999] 1 SCR 311 [Godoy], the Supreme Court of Canada confirmed the foregoing andwith respect to the duty to protect life, at paragraph 15 Chief Justice Lemaire, writing for the Court, added the following precision:“Furthermore, the duty to protect life is a “general duty” as described by Finlayson J.A., and is thus not limited to protecting the lives ofvictims of crime.”

[39] In Godoy, the Supreme Court of Canada, was specifically considering the issue of the lawfulness of police actions, including theduty to protect life and prevent injury, in their response to a 911 call. In my view the Court was also commenting in a general sense onsituations where police conduct interferes with a person’s liberty or property. At paragraph 12 the Court set out the following guidancefor courts assessing police actions in such situations. [12] The accepted test for evaluating the common law powers and duties of the police was set out in Waterfield, supra (followed bythis Court in R. v.

Stenning, (SCC), [1970] S.C.R. 631, Knowlton v. The Queen, (SCC), [1974] S.C.R.443, and Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2).

If police conduct constitutes a prima facie interference witha person’s liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any dutyimposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involvean unjustifiable use of powers associated with the duty. [40] In R v Stairs, 2022 SCC 11, 412 CCC (3d) 283 [Stairs], The Supreme Court of Canada considered the issue of the extent of thepolice’s common law power to search incidental to arrest when the arrest occurs in the person’s home.

At paragraph 74, JusticesMoldaver and Jamal, writing for the majority, wrote the following: [74] When assessing police conduct, the reviewing judge must be alive to the volatility and uncertainty that police officers face — thepolice must expect the unexpected. This reality is inherent in the police's exercise of their common law powers, as well as their statutoryduties, including "the preservation of the peace, the prevention of crime, and the protection of life and property" (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at para. 15 (emphasis deleted), citing Dedman v.

The Queen, (SCC), [1985] 2S.C.R. 2, at pp. 11-12; Police Services Act, R.S.O. 1990, c. P.15, s. 42). Given their mandate, "police officers must be empowered torespond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing" (R. v. Mann,2004 SCC 52, [2004] 3 S.C.R. 59, at para. 16). [41] In dealing with Kitchener the afternoon of June 26, 2021 both Favel and Harbour were responding to an urgent situation ofpotential self-harm by Kitchener.

The potential for imminent danger to Kitchener in the moment and the prevention of harm in the nearfuture was the primary consideration. To address the immediate threat of harm they removed Kitchener from the toilet and removed hispants from around his neck. To address the potential for harm in the near future they also removed and secured his socks and shirt. [42] It is clear that both officers interfered with Kitchener’s clothing, and consequently I must consider the circumstances in light of theSupreme Court of Canada’s dicta in Godoy.

Firstly, I have considered and find that the police conduct does fall within the general scopeof their common law duty to protect life. This is a general duty that applies to all persons, including those that are in their custody. I nextconsider if Favel and Harbour’s actions involved an unjustifiable use of powers associated with their common law duty to protect life. Ifind in this case that their actions and interactions with Kitchener that afternoon did not involve any unjustifiable use of powers.

Theirdecisions and actions were rationally connected to the protection of Kitchener’s life and were reasonable in the circumstances. In myview the situation Favel and Harbour were dealing with was an example of the volatility and uncertainty that police officers facecommented on by the Supreme Court of Canada in Stairs. [43] Lastly, I have considered if Favel acting in the lawful execution of his duty, is somehow undermined by the absence of evidenceof Kitchener’s arrest and the lawfulness of same.

In this case I find the absence of such evidence has no effect on relevant matters, andthus it does not impact my decision. Favel was not the officer who had earlier arrested Kitchener. Nor was there any evidence to suggestthat Favel was in any way acting to assist with the arrest. [44] There is apparently no jurisprudence supporting the general argument that proof of a lawful arrest is required to prove that otherpolice officers subsequently dealing with an accused person were acting in the lawful execution of their duty.

I find that there is no suchgeneral requirement to prove this essential element of the offence. [45] I am not saying that proof of a lawful arrest will never be required when assessing the lawfulness of actions of police officersother than the arresting officer. Clearly in some circumstances, such as assessing the actions of an officer assisting with an arrest, thiswould be relevant. Such cases must however be decided based of their unique facts and circumstances.

[ 46 ] I find in this case that Favel’s actions were not connected to the initial arrest and as such the circumstances of the initial arrest are not relevant or material to my determination of the lawfulness of Favel’s actions. I conclude that Favel had a common law duty to preserve Kitchener’s life and his actions while interacting with Kitchener were in furtherance of that duty. Consequently, the Crown has proven beyond a reasonable doubt that Favel was acting in the lawful execution of his duties when he was assaulted by Kitchener. Conclusion [ 47 ] I conclude by answering the issues presented earlier in this decision. (

a) Yes, the Crown has proven beyond a reasonable doubt that Kitchener intended to apply force to Favel; (

b) No, in this case, it is not necessary for the Crown to prove that Kitchener’s arrest and subsequent detention were lawful in order to establish that Favel was acting in the lawful execution of his duties as a peace officer; (

c) Yes, the Crown has proven beyond a reasonable doubt that Favel was acting in the lawful execution of his duties when Kitchener applied force to him. __________________________ L. Stang, J