R. v. Jacobson Date:, 2015 BCPC 291

Citation: R. v. Jacobson Date: 20151020 2015 BCPC 0291 File No: 81800-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRANT JACOBSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: K. Fotty Counsel for the Defendant: N. Yates Place of Hearing: Kelowna , B.C. Dates of Hearing: May 25, 26, July 7, August 24, 2015 Date of Judgment: October 20, 2015

Introduction [ 1 ] Constable Grant Jacobson is charged with assaulting John McCormick on June 28, 2014, at Rosa’s pub in Kelowna, British Columbia. At closing time, Constable Jacobson told Mr. McCormick it was time to leave. Mr. McCormick swore at Constable Jacobson, turned and began to walk away. Constable Jacobson placed Mr. McCormick under arrest. As Constable Jacobson was placing handcuffs on him, Mr. McCormick turned, put his hands towards the officer’s face and chest. Constable Jacobson reacted by taking Mr. McCormick to the ground and punching Mr. McCormick three times in the side of his chest. [ 2 ] Constable Jacobson argues that

section 25 of the Criminal Code justifies his use of force. In the alternative, he submits that pursuant to

section 35 of the Criminal Code , he was acting in defence of property when he acted to remove Mr. McCormick from the pub. [ 3 ] The Crown, on the other hand, argues that

section 25 has no application because Constable Jacobson did not have grounds to arrest Mr. McCormick and if he did, the force used was excessive. The Crown further argues that Cst. Jacobson was not acting in the aid of the pub in defence of the property. The Issues [ 4 ] The issues are as follows: 1. Does

section 25 of the Criminal Code provide Constable Jacobson a defence for the use of force?

a) Who has the onus when

section 25 of the Criminal Code is raised as a defence for the use of force?

b) Was Constable Jacobson doing something that is required or authorized by law for the administration or enforcement of the law?

c) Did Constable Jacobson act on reasonable grounds when he arrested Mr. McCormick?

d) In the alternative was Constable Jacobson acting under the lawful authority of

section 35 of the Criminal Code ?

e) Did Constable Jacobson use more force than was necessary? The Evidence [ 5 ] John McCormick is 60 years old and a well-known regular at Rosa’s pub in Kelowna. [ 6 ] On June 27 th he arrived at the Pub around 1 pm and stayed until closing time which was shortly after 2 am. [ 7 ] He testified that he consumed 4-6 pints of beer over a 12-13 hour period. [ 8 ] He admitted that he was drunk but as he said “not totally wasted or stumbling”. [ 9 ] Mr. McCormick said that at closing time he approached Constable Jacobson and the following exchange occurred: Mr. McCormick: What are the police doing at the pub?

Constable Jacobson: None of your business. Mr. McCormick: I was just asking. Constable Jacobson: Fuck off. Mr. McCormick: No you fuck off.

[ 10 ] Mr. McCormick described Constable Jacobson as then going “ballistic” by first removing the beer from his hand, grabbing him and then trying to turn him around. Mr. McCormick said he did not know what was happening and turned to face Constable Jacobson. [ 11 ] According to Mr. McCormick, Constable Jacobson grabbed him by the neck and took him to the ground. He landed on his back with Constable Jacobson on top. Constable Jacobson then punched and kneed him 3 times. He said the officer told him not to resist and punched and kneed him three more times. [ 12 ] Mr.

McCormick said he was punched a total of 4 times in his side. [ 13 ] Mr. McCormick denied any suggestion that he tried to grab Constable Jacobson’s gun during the incident. [ 14 ] Mr. McCormick was taken back to the police station and lodged into cells. [ 15 ] He sustained some bruising and abrasions as result of the incident. [ 16 ] I did not find Mr. McCormick to be a credible or a reliable witness for various reasons. During closing argument the Crown conceded as much. [ 17 ] During his testimony, Mr.

McCormick was questioned about whether he had a criminal record and he replied, “Not really, no.” In fact he has been convicted of assault twice, arson and theft. Initially he said he did not remember his most recent conviction in 2010 for assault, but later said he did but it was only a minor assault and everyone gets into trouble once in a while. [ 18 ] I was also troubled by Mr. McCormick’s recall about how much liquor he consumed. Although he said that he only had 4-6 pints over a 12-13 hour period. I found his claim that he only consumed one pint every 2-3 hours incredible.

However, I did find that he was credible and reliable when he said he was drunk. [ 19 ] Furthermore, after reviewing the surveillance footage from the pub, I am satisfied that the video demonstrates a much more involved conversation between Mr. McCormick and Constable Jacobson than Mr. McCormick described. It also supports the nature of discussion described by Constable Jacobson. [ 20 ] Mr. McCormick testified that he very rarely uses the word ‘ Fuck ’ and never holds up his middle finger. He testified that when they arrived at the police station he knew it was important to remain quiet and he did so.

He denied swearing in the CABS room. [ 21 ] The video from CABS room paints a very different picture. It shows Mr. McCormick raising his voice and using the word ‘ Fuck ’ multiple times. After being shown the video in court, Mr. McCormick appeared surprised and acknowledged that maybe he did swear. [ 22 ] Constable Jacobson testified on his own behalf. He has been a police officer for 8 years and prior to policing among other jobs worked as a bouncer. [ 23 ] He was inside Rosa’s pub at closing time. His primary reason for being there was to keep the peace and ensure that people left in an orderly manner.

According to Constable Jacobson, when police are present, people are less likely to act up, get involved in fights, drive drunk or do other nefarious things. [ 24 ] Constable Jacobson said he positioned himself in the licensed portion of the pub on the patio near the exit. [ 25 ] Mr. March, the manager of the pub, said that although it is rare for police to be inside the pub, it was not rare for Constable Jacobson who has a very good working relationship with his staff. [ 26 ] Mr.

March said that his staff started encouraging people to leave around 2:15 am because they are not allowed to be open past 2:30 am but that they were lawfully entitled to finish their drinks. When the incident between Constable Jacobson and Mr. McCormick occurred there were still several people on the patio. [ 27 ] Constable Jacobson testified that a bouncer came up to the group of people he was talking to and said, “it is time to finish, put down your drinks and leave.” He saw another bouncer tell Mr. McCormick that he needed to leave, but Mr. McCormick ignored him and continued walking.

He said that he saw a second bouncer tell Mr. McCormick it was time to go and Mr. McCormick replied that he paid for his pint and he would drink it as fast or slow as he wanted. Constable Jacobson was not sure what the bouncer said in reply but he heard Mr. McCormick tell him to “Fuck off”. [ 28 ] Mr. McCormick then walked further into the licensed portion of the patio with a glass of beer in hand. [ 29 ] According to Constable Jacobson, a third bouncer looked in his direction and with his body language appeared to question whether he, Constable Jacobson, was going to deal with Mr. McCormick or the bouncer.

Constable Jacobson said he raised his palms to signal the bouncer that he would take care of it. He said he then took a couple of steps towards Mr. McCormick and began speaking to him. [ 30 ] The video footage on this point is not consistent with Constable Jacobson’s evidence. It does not show him stepping towards Mr. McCormick; instead it shows Mr. McCormick walking up to Constable Jacobson. After reviewing the video in court, Constable Jacobson conceded that he was mistaken. [ 31 ] The time on the video when the two begin interacting is 2:12 am.

Constable Jacobson agreed that a licensed establishment like Rosa’s pub has until 2:30 am to have their patrons out, but pointed out that most pubs start clearing people out sooner to avoid being in non-compliance. [ 32 ] Constable Jacobson said that Mr. McCormick appeared to be under the influence of alcohol and described him as drunk. He said

he noticed his eyes were glossy, his face was flushed, he had a strong odour of liquor on his breath, and he was a slightly unsteady on his feet. He also noticed him becoming increasingly confrontational as they spoke. [ 33 ] He explained to Mr. McCormick that the bar was closing and that he needed to drink up. He also told him that there was a grace period to finish his drink but that period was now over and it was time for him to leave. Mr. McCormick then responded by saying that he paid for his beer and could drink it.

The officer thought, but could not recall with certainty, that he also added wherever or whenever he wants. [ 34 ] Constable Jacobson then explained to Mr. McCormick that the Liquor and Licensing Act states otherwise and he would have to leave. He told him that he already had an opportunity to finish his drink. [ 35 ] Constable Jacobson said that he showed him the time on his watch. This is borne out by the video footage of the incident. [ 36 ] According to the officer, Mr. McCormick’s mood changed and he started to become argumentative. Constable Jacobson reminded him he was a police officer. He told Mr.

McCormick that he saw two bouncers tell him to leave and that he never listened to them. He told him pursuant to the Liquor Control and Licensing Act , he had to listen to the bar staff. He also told him that if he refused to leave he would be arrested for obstruction. Mr. McCormick then said “arrest” or “arrest me”, shrugged his shoulders, turned and walked away. As he walked away he said “fuck off you wanker”, and gave Constable Jacobson the finger. Although the video is somewhat unclear it does show Mr. McCormick make a hand gesture as he turned to leave. [ 37 ] Mr.

McCormick can then be seen walking further into the licensed portion of the pub instead of toward the exit. [ 38 ] Constable Jacobson said that when Mr. McCormick swore at him, it was loud enough to catch the attention of others in the pub. [ 39 ] Constable Jacobson said that if Mr. McCormick had simply finished his drink and left he would not have been arrested because he would have been complying with the officer’s directions. He did not, so Constable Jacobson decided to arrest him.

He said the arrest was based on the following: ▪ his level of intoxication; ▪ swearing and belligerence; and ▪ not following directions [ 40 ] He said to affect the arrest he walked over to Mr. McCormick, told him to stop, and grabbed his arm. He then removed the beer from Mr. McCormick’s hand and set it on the table. [ 41 ] In chief, Constable Jacobson said he told Mr. McCormick that he was being arrested for obstruction but could not recall if he mentioned any other offences. Later under cross-examination, he said he could not recall if he said obstruction, causing a disturbance or both.

However, he was certain that he mentioned at least one of the two offences. [ 42 ] Constable Jacobson then began handcuffing Mr. McCormick. As he was doing so, Mr. McCormick turned around, and caught Constable Jacobson off guard. Mr. McCormick then raised his hands towards Constable Jacobson’s chest and face. [ 43 ] Constable Jacobson believed that Mr. McCormick was either trying to assault him or escape and decided to get onto the ground so he could regain control. [ 44 ] Initially, Constable Jacobson said he wanted to handcuff Mr.

McCormick standing up and remove him from the property but when he turned, he did not want to get into a punching match with him, especially standing up. He said he felt concerned for his own safety and the safety of others in the pub. He explained it is easier to gain control of a person on the ground as opposed to standing up. [ 45 ] Constable Jacobson said that in training they were taught the higher the risk the lower to the ground the individual goes. Initially, he said he planned to take Mr. McCormick down to the ground with a more gentle approach.

However, when he tried to sweep his legs out, he felt a distinct pull or tug on his right hip and thought that Mr. McCormick was grabbing for his firearm. It was at this point, Constable Jacobson decided to take Mr. McCormick down with more force. [ 46 ] As Constable Jacobson took Mr. McCormick to the ground, Mr. McCormick’s body torques over Constable Jacobson’s right side. As he does this, Mr. McCormick’s hand and arm slide overtop of Constable Jacobson’s holster. [ 47 ] Although it is clear from the video that Mr.

McCormick was not trying to reach for Constable Jacobson firearm, the video and Constable Jacobson’s evidence leaves open the possibility that Mr. McCormick unintentionally touched the holster with enough force either in an effort to avoid being taken to the ground or as he was falling, to give Constable Jacobson the impression that he was grabbing his gun. [ 48 ] Constable Jacobson said that when Mr. McCormick landed flat on his back his hands were in the area of his tool belt. Constable Jacobson said he could still feel a tug in the area of his firearm. He said he told Mr.

McCormick to stop resisting and to let go of his gun. [ 49 ] It is clear from the video that Mr. McCormick is not grabbing Constable Jacobson’s holster or tool belt when the two are on the ground. [ 50 ] Constable Lawson who was also only a few feet away did not see Mr. McCormick grab for his colleagues gun. [ 51 ] As Constable Jacobson was on the ground struggling with Mr. McCormick, Mr. March the manager of the pub heard Constable Jacobson say he tried to grab my gun.

[ 52 ] Constable Jacobson said that he was afraid that Mr. McCormick would get his gun which was loaded and did what he felt was necessary to make sure that he stopped the threat. [ 53 ] The video clearly shows that he punched Mr. McCormick three times in the side of his body. He said after three hits Mr. McCormick was still not compliant so he got his knee on top of him. With the assistance of Constable Lawson they were able to handcuff him and remove him from the pub. [ 54 ] Constable Jacobson said that if he had not felt the tug to his holster he would not have punched Mr. McCormick.

He said he punched him in the side and softest part of his body so as not to injure him. His intention was to get Mr. McCormick to turn and move his hands into a defensive rather than offensive position. He said he continued hitting him until he knew his hands were clearly not on his pistol. He then put his knee on his belly because he was not rolling over or putting his hands behind his back. [ 55 ] The entire incident from the point of Constable Jacobson grabbing the glass out of Mr. McCormick’s hand to the point of kneeling on him was 14 seconds. A mere 6 seconds elapsed from the point in time in which Mr.

McCormick turns to face Constable Jacobson and is placed under control on the ground. [ 56 ] Once he had control of Mr. McCormick Constable Jacobson told him he was under arrest for obstruction, causing a disturbance, resisting an arrest, and for assaulting a police officer. [ 57 ] Following the arrest, Constable Jacobson charged Mr. McCormick under the Kelowna bylaws for obstructing a peace officer and under the Liquor Control and Licensing Act for being intoxicated in a public place. I was told that Mr.

McCormick did not dispute those tickets but place no weight on that fact in my analysis. [ 58 ] Constable Jacobson was both credible and reliable. I believed his evidence. He impressed me with his overall demeanor and particularly his forthright responses as a witness. Although vigorously cross-examined by very skilled counsel, Constable Jacobson remained relatively unshaken in his testimony. Much of his testimony was also supported by the independent video surveillance footage from the pub. Analysis 1. Does

section 25 of the Criminal Code provide Constable Jacobson a defence for the use of force?

a) Who has the onus when

section 25 of the Criminal Code is raised as a defence for the use of force? [ 59 ] Constable Jacobson raises the defence of justified use of force. [ 60 ] Sometimes the law authorizes people to use force to administer or enforce the law. Our system would break down if police were not allowed to use force when it is required in the course of their legal duties. However, the law also places limits on the use of force by people who enforce our laws. Those limits are set in

section 25 of the Criminal Code . Sections 25(1) and (2) read: 25

(1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person, (

b) as a peace officer or public officer, (

c) in aid of a peace officer or public officer, or (

d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction. [ 61 ] As with all defences the Crown must prove beyond a reasonable doubt that the defence of justified use of force cannot succeed.

The accused does not have to prove anything. [ 62 ] If I accept the evidence in support of the defence justified the use of force, I must find Constable Jacobson not guilty. [ 63 ] If I do not accept the evidence in support of the defence of justified use of force, but I am left in a reasonable doubt by it, I must also find him not guilty. [ 64 ] Even if I am not left with a reasonable doubt by the evidence in support of the defence of justified use of force, I must still go on to determine whether or not, on the basis of the all of the evidence he is guilty. [ 65 ] The phrase “reasonable doubt” does not require proof to an absolute certainty or beyond any doubt nor is it an imaginary or frivolous doubt; but it does involve a significant level of proof far beyond the “balance of probabilities” standard of proof in civil cases.

It must not be based upon sympathy or prejudice rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

b) Was Constable Jacobson doing something that is required or authorized by law for the administration or enforcement of the law? [ 66 ] Pursuant to

section 25 , the defence of justified use of force only applies where a person is doing something that is required or authorized by law for the administration or enforcement of the law. It can apply in a myriad of contexts but is most commonly raised in the context of an arrest of a civilian, as in the case at hand.

c) Did Constable Jacobson act on reasonable grounds when he arrested Mr. McCormick? [ 67 ] Constable Jacobson was uncertain as to exactly what he told Mr. McCormick he was arresting him for, but was certain about his reasons. [ 68 ] He said his reasons were two fold. First, he was arresting for obstructing a police officer, namely himself, and second for causing a disturbance in a public place. [ 69 ] The focus must be on what Constable Jacobson believed and whether in all of the circumstances that belief was based on reasonable grounds. If he honestly believed, on reasonable grounds, that Mr.

McCormick had committed either offence of obstruction, or causing a disturbance in a public place he was authorized to arrest him, even if Mr. McCormick did not actually commit either offence. [ 70 ] Reasonable grounds are more than a mere hunch. They are circumstances that would create a reasonable belief in the mind of a reasonable person. [ 71 ] Constable Jacobson testified that he was aware that British Columbia liquor laws required Rosa’s pub to have its patrons cleared or at minimum no longer consuming alcohol by 2:30 am.

He was also aware that Rosa’s pub normally started the clearing procedure prior to 2:30 am to ensure compliance. [ 72 ] Approximately 15-20 minutes before closing, Constable Jacobson witnessed at least two bouncers tell Mr. McCormick it was time to leave. Mr. McCormick ignored their directions and swore to at least one of them. A third bouncer gestured to Constable Jacobson inquiring whether he would deal with Mr.

McCormick, or if he the bouncer would have to. [ 73 ] Constable Jacobson said he was familiar with the laws set out in the Liquor Control and Licensing Act that deal specifically with a liquor establishment’s right to request a patron to leave and the right of the police to arrest anyone that refuses. [ 74 ]

Section 46 of the Act reads: 46

(1) A licensee or the licensee's employee may (

a) request a person to leave, or (

b) forbid a person to enter a licensed establishment if for any reason he or she believes the presence of that person in the licensed establishment is undesirable or that person is intoxicated.

(2) A licensee or the licensee's employee, in reaching an opinion under subsection (1), must not contravene the Human Rights Code .

(3) A person must not (

a) remain in a licensed establishment after he or she is requested to leave by the licensee or the licensee's employee, (

b) enter a licensed establishment within 24 hours after the time he or she was requested to leave the licensed establishment by the licensee or the licensee's employee, or (

c) without lawful excuse, the proof of which lies on the person, possess a knife, firearm or weapon in a licensed establishment.

(4) A person who contravenes subsection (3) commits an offence and is liable on conviction to a fine of not less than $500.

(5) A peace officer may arrest, without warrant, a person contravening or suspected of contravening subsection (3). [ 75 ] Cst Jacobson was also familiar with

section 41 of the Act which forbids any person from being intoxicated in a public place, and gives police the power to arrest people who are found intoxicated in such a place.

Section 41 reads: 41

(1) A person who is intoxicated must not be or remain in a public place.

(2) A peace officer may arrest, without a warrant, a person found intoxicated in a public place. [ 76 ] Although the phrase “intoxicated” is not specifically defined in the Act , courts in British Columbia have consistently interpreted it is as being a condition where the person, because of the consumption of alcohol, is either a danger to him or herself, or others. [ 77 ] Constable Jacobson testified about the indicia of impairment that he observed, and that he believed Mr. McCormick to be drunk. I believe him. However, Constable Jacobson did not say that he believed Mr.

McCormick was either a danger to himself or others because of his level of intoxication. Furthermore, as the Crown pointed out, the fact that Constable Jacobson was going to allow Mr. McCormick to finish his drink seems inconsistent with such a belief. [ 78 ] I am not satisfied that Constable Jacobson had reasonable grounds to arrest Mr. McCormick for being intoxicated in a public

place. [79] Constable Jacobson said he also had grounds to arrest him for causing a disturbance. He was not asked to articulate his groundsfor believing that Mr. McCormick was committing that offence. [80] The relevant parts of

section 175 of the Criminal Code reads:

(1) Everyone who (

a) not being in a dwelling-house, causes a disturbance in or near a public place, (

i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, (ii) by being drunk, or (iii) by impeding or molesting other persons,

(2) In the absence of other evidence, or by way of corroboration of other evidence, a

summary conviction court may infer from theevidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described inparagraph (1)(

a) or (

d) or an obstruction described in paragraph (1)(

c) was caused or occurred. [81] As Mr. McCormick walked away from Constable Jacobson he said “Fuck you. You fucking wanker.” Constable Jacobson saidMr. McCormick was loud enough for others to hear and he saw a patron look in his direction. [82] In R v Lohnes, (SCC), the court defines a disturbance at page 181 when it writes: The disturbance contemplated by s. 175(1)(

a) is something more than mere emotional upset. There must be an externally manifesteddisturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. [83] In R v Walker, [2006] OJ No. 2840 (SC) an officer was convicted of assault causing bodily harm. The complainant had resistedthe officer’s attempts to obtain his identification by calling the officer a racist and venting at him on a public street. A crowd soongathered and the officer decided to arrest him for causing a disturbance.

The complainant resisted and was injured. [84] On appeal, the court found that the trial judge correctly concluded that the arrest for causing a disturbance was unlawful. Thecourt writes: It is implicit in the trial judge’s reasons that she did not find that there was an “externally manifested disturbance” on the specific factsbefore her.

While certain people in the immediate area clearly had their attention drawn to the encounter between the complainant andthe appellant, there was no evidence that this encounter rose above normal forms of activity that can occur on our streets on any givenday that may “disturb and annoy others sharing the public space”.

As the respondent aptly points out “attracting curiosity is notsynonymous with causing a disturbance.” [85] The court further added: It would have the proverbial "chilling effect" on the rights of citizens to object to such abuse by police officers if the consequences ofobjecting were to be for the objectors to then find themselves charged with a criminal offence such as causing a disturbance.

In soconcluding, I do not mean to condone the conduct of the complainant regarding the manner in which he chose to express his objections.I, like the trial judge, find his use of insulting language towards the officer disturbing. However, it remains the fact that, howeverobjectionable the conduct of the complainant may have been, on the facts before the trial judge she was entitled to find, as a fact, that itdid not rise to the level of causing a disturbance nor could the appellant reasonably have concluded that it did. [86] The case was upheld on appeal to the Ontario Court of Appeal.

In brief reasons the Court endorsed the above passage andstated: Even if there was a "disturbance," in common parlance, there was no "disturbance" within the meaning of the Criminal Code in thiscase. The trial judge found that the appellant had no right to continue investigating or questioning the complainant.

While thecomplainant's loud and rude protestations may have been "disturbing" to some, they did not constitute reasonable grounds for theappellant whose improper actions instigated the exchange to believe there was a criminal disturbance. [87] Leave to appeal was refused by the Supreme Court of Canada: R v Walker, [2007] S.C.C.A. No. 177. [88] Based on the above passages, and even more so because the words were uttered inside of a drinking establishment, I amsatisfied that Constable Jacobson did not have reasonable grounds to arrest Mr.

McCormick for causing a disturbance. [89] Constable Jacobson testified that he had grounds to arrest Mr. McCormick for obstructing a police officer. He said that hebelieved that Mr. McCormick was obstructing him in the lawful execution of his duty by refusing to leave the liquor establishment afterhaving been requested by staff and then himself.

[ 90 ] I believe Constable Jacobson when he says that he witnessed at least two bouncers tell Mr. McCormick he had to leave, whether the bouncers intended it to be a form of encouragement or directive, I accept Cst. Jacobson’s evidence when he says he believed it was a directive and furthermore I found that belief to be a reasonable one. It matters not that others were still on the patio and some could even be observed walking back into the pub. [ 91 ] When Constable Jacobson spoke to Mr.

McCormick he told him the law required him to follow the directions of the pub employees and that when a police officer, like himself, tells him to leave and he needs to comply. He warned Mr. McCormick that if he did not leave, he would arrest him for obstruction. [ 92 ] Although Constable Jacobson was initially prepared to let Mr. McCormick drink up, when Mr. McCormick turned away, gave him the finger and told him to fuck off, Constable Jacobson formed the conclusion that an informal resolution to the matter would not be forthcoming.

His belief was reasonable. [ 93 ] However, the real question is whether or not it was reasonable for Constable Jacobson to conclude that Mr. McCormick’s failure to comply with his direction constituted the obstruction of a peace officer. [ 94 ]

Section 129 (

a) of the Criminal Code reads: Everyone who (

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, [ 95 ]

Section 46 of the Liquor Control and Licensing Act specifically provides authority to a licensee or one of its employees to request a person to leave the establishment. The Act does not appear to confer the same power onto the police. [ 96 ] One might argue that since this authority is being delegated by the liquor establishment to the police, it is done on behalf of the licensee and therefore not in the execution of a police duty. [ 97 ] Support for this argument is found in R v Fraser , 2002 NSPC 6 . In that case, the accused refused to leave a Federal Department of Fisheries and Oceans office.

Police were called and told the accused to leave. Police told him that if refused he would be arrested for obstruction. He did not and was arrested. [ 98 ] In that case the court said the real question that needed to be answered was if a peace officer at the behest of an occupier of property delivers a direction to a certain person to leave the premises pursuant to the Protection of Property Act , and the person does not leave is the person committing the offence of obstruction?

Judge Ross concluded that s/he would not be. [ 99 ] The Protection and Property Act, like the Liquor Control and Licensing Act , also made it an offence for a person to remain after being directed to leave, and gave police the power to arrest. [ 100 ] The court in Fraser found that pursuant to the Protection and Property Act , an occupier of a federal building had the power to direct a person to leave.

While the occupier could also authorize another, like a police officer, to give the direction to leave, the direction did not become cloaked with any enhanced significance because it came from a police officer as opposed to a civilian.

The duty to leave was owed to the occupier, and while the police did not act unreasonably in attempting to reinforce that request, they did not do so in their capacity as peace officers. [ 101 ] Since the officer in Fraser was not acting in the execution of his duty when he ordered the accused to leave, the accused could not be found guilty of obstructing him in the lawful execution of his duty. [ 102 ] In reaching the conclusion that he did, Ross J. acknowledged the answer was not obvious and the issue complex. [ 103 ] A similar issue arose in R v Virani , 2011 BCSC 1032 .

In that case a couple of transit police came upon Mr. Virani and asked to see his paid fare. He refused. He was then directed to get off the train and told if he did not, he could be arrested for obstruction. He refused by saying the officer assaulted him and yelled that he was not going to get off. He was arrested and charged with obstruction. [ 104 ] On appeal, Mr. Virani relied on the findings in Fraser and argued he was not guilty of obstructing the peace officers.

He argued that he could not be convicted of obstruction merely because he infringed a provincial statute and failed to stop doing so after being told by an officer to do so. [ 105 ] The Crown on the other hand argued that Mr. Virani’s conduct amounted to more than just a refusal and it affected the officers in the performance of their duty. It pointed out that the court in Fraser was careful to distinguish between obstruction cases that involve a public disturbance and those like Mr. Fraser who merely refused to leave.

In the former the court said resort to the common law duties of the police is possible such as the necessity to ensure the public peace and prevent crime. [ 106 ] The appellate court in Virani found that it came down to essentially two questions. First, did Mr. Virani owe a duty of obedience to the officer and second, whether the events leading up to Mr. Virani’s arrest affected the officers’ execution of their duty as police officers. [ 107 ] The court answered the first question in the affirmative.

It found that one of the core duties of the transit police officer was to ensure people paid their fares and to leave the train when they had not. The Act specifically provided transit employees (which included transit police) with authority to direct people to leave the train. [ 108 ] The second question was also answered in the affirmative. Mr. Virani’s conduct did involve more than just a mere refusal to leave the property. The court pointed out that as part of their duties, the police needed to consider first the security and safety of all the

passengers. If a passenger’s disobedience of an officer’s order potentially affects the safety of other passengers, their conduct caninherently affect the transit officer’s execution of his duty to ensure, within his or her capacity the safety of the other passengers. Thecourt said that transit police are called upon to consider the safety of other passengers “in a confined sometimes crowded, space.Confrontations between transit police and passengers challenging their authority could lead to serious emergent incidents.” [109] Mr.

Virani’s situation was not simply a person stating a refusal, delaying until the next station and stepping off after the officertouched his arm. Instead he falsely yelled out that the officer had assaulted him and continued to yell that he was not getting off the train. As the court pointed out, a refusal to follow directions can give rise to an obstruction in emergent circumstances. [110] It is questionable whether the circumstances faced by Cst. Jacobson were emergent. Mr.

McCormick was clearly demonstratinghostility towards the officer, loud enough for others to hear and was moving deeper into the licenced establishment. It is quite likely thatif Mr.

McCormick had then approached by a bouncer he would have vigorously resisted any efforts to remove him from the premisewhich could have led to a dangerous situation for other patrons in the bar. [111] Fraser is distinguishable because it was never argued that the officer was acting in the lawful execution of his duty andpreventing a further trespass, something the officer, in my opinion was entitled to do as part of the lawful execution of his duty. [112] However, based on the findings in Fraser, it is possible that had Mr. McCormick disputed the tickets he would not have beenconvicted.

However, in both Fraser and Virani, the courts were asked to decide whether the accused was guilty of obstruction, a muchhigher standard to meet. [113] The question that I must answer is whether Constable Jacobson had reasonable and probable grounds to believe Mr. McCormickcommitted the offence of obstruction, not whether Mr. McCormick is guilty of the offence. These are two very different questions. [114] The British Columbia Court of Appeal explains the distinction in Richardson v The City of Vancouver, 2006 BCCA 36.

In thatcase the plaintiff was arrested for proceeding through an area cordoned off by police to protect city workers who were dismantling asquatters’ camp. He claimed that he was unlawfully arrested by a Vancouver City police officer and sought damages. The premise of theplaintiff’s argument was that he could not be found guilty of obstruction for which he had been arrested, and therefore the arrest had tobe unlawful.

The Court explained the fault in the plaintiff’s logic when it wrote at para 20: …"Did the accused obstruct?" is not the same as "Did the officer have reasonable and probable grounds to believe he did?" [115] The trial judge approached the matter, correctly in my view, according to what was apparent to Constable Harris at the scene ofthe arrest. He did so having referred to R. v. Biron (1975), (SCC), [1976] 2 S.C.R. 56, and R. v.

Roberge, (SCC), [1983] 1 S.C.R. 312. [116] In Biron, the majority (5-3) rejected the view taken by the Quebec Court of Appeal, and by the Saskatchewan Court of Appeal inSaskatchewan (Attorney General) v. Pritchard (1961), (SK CA), 34 W.W.R. 458, that since the accused was acquitted,on appeal, of the offence for which he was arrested (causing a disturbance), it followed that he could not have been convicted of resistingarrest. Martland J., for the majority, said at 72: If the reasoning in the Pritchard case is sound, the validity of an arrest under s. 450(1)(

b) can only be determined after the trial of theperson arrested and after the determination of any subsequent appeals. My view is that the validity of an arrest under this paragraphmust be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made. [117] Martland J. relied on a decision of Lord Denning in Wiltshire v.

Barrett, [1965] 2 All E.R. 271 (C.A.), which, like this, was acivil action for damages, as authority for the proposition that the lawfulness of the arrest must be determined on what was apparent to thearresting officer, not according to the outcome of the criminal proceedings. He said, at 75: In the Wiltshire case the statutory provision involved the power to arrest without a warrant a person unfit to drive because of drink ordrugs and the Court referred to the public importance of an arrest being promptly made in such circumstances. Paragraph (

b) ofs. 450(1) deals with the power to arrest without a warrant a person found committing any criminal offence. It is certainly of publicimportance that the peace officer should be able to exercise this power promptly. [118] If the words "committing a criminal offence" are to be construed in the manner indicated in the Pritchard case, para. (b)becomes impossible to apply. The power of arrest which that paragraph gives has to be exercised promptly, yet, strictly speaking, it isimpossible to say that an offence is committed until the party arrested has been found guilty by the courts.

If this is the way in which thisprovision is to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is"committing a criminal offence". In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrestwithout a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence. [119] In Roberge, the court clarified Biron by holding that what was apparent to the officer must also have been reasonable.

Lamer J.,as he then was, who gave the judgment of the court, said at 324-325: [120] The disagreement between the judges of this Court in Biron was as regards the test when applicable to a party resisting arrest. Ihave underlined the test the minority recognized as applicable to the arresting officer when he is the accused. The majority would havethe same test for the arresting party and the party being arrested. As regards the accused arrestor, I see no disagreement even though themajority refer only to apparently committing.

Indeed, I do not read the test laid down by Martland J. as suggesting that it is sufficient

that it be "apparent" to the police officer even though it would be unreasonable for the police officer to come to that conclusion. Surely it must be "apparent" to a reasonable person placed in the circumstances of the arresting officer at the time. [ 121 ] In the case at hand, I am satisfied that the evidence before me establishes that Constable Jacobson did have reasonable grounds to conclude that Mr. McCormick was “apparently” committing the offence of obstruction. [ 122 ] If I am wrong, and Constable Jacobson did not have the necessary grounds to arrest Mr.

McCormick for obstruction I am satisfied that he had reasonable grounds to arrest Mr. McCormick pursuant to section 46 (5) of the Liquor Control and Licensing Act . [ 123 ] Although he did not articulate that he specifically relied on the

section as his power to arrest, he had effectively done so. He just finished explaining to Mr. McCormick that according to the Act he needed to leave and that he could be arrested if he did not. When it became apparent that he was not leaving, he was arrested. Constable Jacobson had both the subjective and objective belief that Mr. McCormick could be arrested for failing to leave the pub as directed.

d) In the alternative was Constable Jacobson acting under the lawful authority of

section 35 of the Criminal Code ? [ 124 ] Like the justification pursuant

section 25, the Crown must prove beyond a reasonable doubt that the defence does not apply. [ 125 ]

Section 35 provides a defence to persons who aid others in defence of their property. The

section reads: 35.

(1) A person is not guilty of an offence if (

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances. (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. [ 126 ] Constable Jacobson had reasonable grounds to believe that the licensee had peaceable possession of the real property, namely the pub. Although Mr.

McCormick was initially a welcome guest of the pub and legally entitled to be there, after being told by two different bouncers to leave, it was reasonable for Constable Jacobson to conclude that Mr. McCormick lost his status as an invitee and that he became a trespasser. [ 127 ] Although subsection 35(1)(b)(

i) speaks to entering the property, about to enter or having entered with a lawful right to do so, it must be interpreted to included situations where the person has entered the property lawfully but loses his or her status as an invitee. I also interpret subsection (i-iii) disjunctively. Meaning that only one of the three grounds needs to be present. [ 128 ] After speaking to Mr. McCormick, it became obvious to Constable Jacobson that Mr.

McCormick would not be leaving willingly, and in fact was very entrenched in his position. [ 129 ] Since police have a common law duty to maintain public peace, order and public safety and prevent crime, it was reasonable for Constable Jacobson to remove Mr. McCormick from the pub instead of leaving that task to the bouncer, and risk things unfolding quite differently.

e) Did Constable Jacobson use more force than was necessary? [ 130 ] The third ingredient of the defence of justified use of force is that the force used during the arrest was no more than necessary for that purpose. In the case of defence of real property, the use of force must be reasonable in the circumstances. [ 131 ] A police officer does not have the authority to use force by whatever means and in whatever manner he or she pleases in order to arrest an offender, or remove an uninvited guest. The officer is only free to use force of whatever kind or extent is necessary for the purpose.

If the officer uses more force than necessary, he or she is not justified in the eyes of the criminal law for the excess use of force. [ 132 ] When most of us can walk away from trouble, a police officer has a duty to walk towards it. They are expected to deal with potential problems in a decisive and efficient manner. [ 133 ] Police officers do not usually have time for calm deliberation when faced with a situation that requires immediate action, and

cannot be expected to measure with precision the amount of force that is required. [134] In R v Nasogaluak, 2010 SCC 6, the court noted at para. 35: Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous anddemanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v.

Bottrell (1981), (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as theyexisted at the time the force was used. They should have been directed that the appellant could not be expected to measure the force usedwith exactitude. [135] The situation faced by Constable Jacobson when Mr. McCormick turned and put his hands in his face and chest area was adynamic. It was sudden, and unexpected. Constable Jacobson did not have an opportunity to carefully plan his next move.

The situationbecame even more critical when Constable Jacobson felt what he believed was a tug on his holster. He was called upon to use what helearned in training and his best judgment to diffuse the situation as quickly as possible. [136] Once Mr. McCormick was on the ground it appears clear from the video footage that his hands are not near ConstableJacobson’s duty belt. [137] A number of the witnesses were asked to comment on the video footage as it was advanced frame by frame. Life is notexperienced in slow motion or freeze frame.

I must remind myself that I had the luxury of watching the video frame by frame in thecalmness of the courtroom. Constable Jacobson did not have this same luxury. [138] The incident from the point in time that Mr. McCormick twisted free from the handcuff to the last punch took mere seconds.Although cameras do not lie, they only capture a single and limited perspective. A video cannot articulate the perspective of humanexperience. It lacked audio and to some extent image clarity.

While very valuable in this case, the video was not without its limitations. [139] Judges must guard against an over-reliance on hindsight. In R v Cornell, 2010 SCC 31 , [2010] 2 SCR 142 the Courtsaid at para. 24: …[police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38 , [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, ifsomething happens, the measures were inadequate but that if nothing happens, they were excessive.

These sorts of after-the-factassessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment indifficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is toappropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Mondaymorning quarterback. [140] It is the reasonable belief of the officer in light of all the circumstances that is important in the analysis.

Detached reflectioncannot be demanded in dangerous circumstances. [141] I believed Constable Jacobson when he said that he thought Mr. McCormick still posed a risk while he was on the ground.Although the video is not consistent with Constable Jacobson’s recollection of Mr. McCormick’s hand still being close to or on his toolbelt, an inconsistency like this is not surprising given the fact that only mere seconds passed from the tug he initially felt. [142] Police are not obliged to wait and see what will happen. Doing so would invite injury.

It is only common sense, especially in abusy bar that the sooner the potential dangerous situation is dealt with in a conclusive way the better. Although police have a duty to useno more force than is necessary, they must be satisfied that the active resistance has been overcome. [143] Constable Jacobson’s blows were calculated not to seriously injure Mr. McCormick. Instead of striking blows to his head, hestruck blows to the side of his body. The force was reasonable in the circumstances.

One cannot expect police to place themselves indangerous situations in order to arrest an individual without, at the same time, acknowledging their authority to protect themselves andothers when making an arrest. [144] Furthermore, where an officer acts within a reasonable range of forcible response, s/he is entitled to the protection of

section 25even if they fail to use the least amount of force that would achieve the desired result. Police are entitled to be wrong but they must bereasonable - they need not demonstrate the correct decision was made but a reasonable one. [145] In the case at hand, after considering all of the evidence, I am left with a reasonable doubt that the amount of force used byConstable Jacobson was excessive. 2. Conclusion [146] I find Grant Jacobson not guilty of assaulting John McCormick. _________________________________________

THE HONOURABLE JUDGE G.W. KOTURBASH