Her Majesty the Queen - v. -, 2021 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 41 Date: September 2, 2021 Information: 90306651 Location: Montreal Lake Provincial Court _____________________________________________________________________________ Between: Her Majesty the Queen - and - William Patrick Bird Ms. Cynthia L. Alexander For the Crown Ms. Crystal R. Eninew For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] In the early hours of January 6, 2020, the RCMP in Montreal Lake received a complaint that William Bird had assaulted someone.

A member of the RCMP went to investigate and, after meeting with the complainant, decided he had probable grounds to arrest Mr. Bird. Mr. Bird was inside his residence and refused entry to the officer. The officer forced the door open and attempted to arrest Mr. Bird. While doing so, the officer was bitten by a family dog. Mr. Bird was charged with assaulting the officer because it was alleged that he incited the dog to attack the officer by repeatedly speaking the word “sic’em”.

[ 2 ] A trial was conducted on April 8, 2021. Both the officer and Mr. Bird testified. In addition, a friend of Mr. Bird who was present at the time also testified. The Court heard strikingly different accounts of what happened on that evening. [ 3 ] Mr. Bird testified that he was brutally assaulted by the police officer who came to arrest him on January 6, 2020. He described the incident as a home invasion. Mr.

Bird told Court he was able to record most of the incident and had “live streamed” that recording on Facebook causing members of his family (and some friends) to attend to his residence while he was being arrested. These individuals were present and observed what happened. Unfortunately for Mr. Bird, none of these individuals came to Court to testify save one, and that person did not corroborate Mr. Bird’s testimony. Furthermore, Mr. Bird was unable (or declined) to tender the audio/video recording as evidence. Much of Mr. Bird’s testimony was not believable.

It was internally inconsistent and not corroborated by his own witness. It was littered with inuendo and unfounded accusations. Finally, it was contradicted by other evidence I found to be clear, cogent and compelling. [ 4 ] On the other hand, it is an error of law (and logic) to conclude that, because I do not believe Mr. Bird’s testimony, that he is guilty of the offence for which he is charged. The onus of proof never shifts from the Crown to prove its case and to do so beyond a reasonable doubt.

During argument, the Crown told Court it was no longer seeking a conviction on the charge of assaulting a police officer, but was seeking a conviction for the offence of resisting arrest. Having considered the evidence in these proceedings, the Crown’s decision to not seek a conviction on the assault charge was well grounded. All witnesses agreed that the dog that bit the officer was in a state of agitation as soon as the officer entered Mr. Bird’s residence and it was unclear whether or not the words spoken by Mr.

Bird were the cause of the dog’s aggression toward the officer. [ 5 ] However, the evidence I heard in these proceedings did satisfy me beyond any reasonable doubt that Mr. Bird resisted arrest by a peace officer engaged in the lawful execution of his duties. Furthermore, I am also satisfied that the offence of resisting arrest is an included offence to the charge of assaulting a police officer. THE EVIDENCE [ 6 ] As indicated, the trial began on April 8, 2021. The Crown called Constable Matthew Riedel. Mr. Bird testified himself. He also called his friend, Ryan Bird.

I will recount the evidence of the witnesses and then set forth my findings of fact. Crown’s Evidence - Constable Matthew Riedel : [ 7 ] Constable Riedel is a member of the Royal Canadian Mounted Police [RCMP]. On January 6, 2020, he was stationed at Montreal Lake First Nation. He also resided there. At about 1:00 a.m., the RCMP was contacted by the security staff of the Montreal Lake First Nation and was informed that a female had been injured at House 911, Montreal Lake. There were only a few officers on duty at the time and Constable Riedel was one.

The officer immediately recognized the address for service because it belonged to his neighbour. Constable Riedel was in uniform that evening. [ 8 ] At approximately 1:05 a.m., Constable Riedel arrived at the residence. When he arrived, Band security was at the scene and had a female in their vehicle. Her name was Patricia Sewap and she lived with her common law partner, William Bird, at that address. The officer spoke with Ms. Sewap while she was in the security vehicle. Ms. Sewap told the officer that there had been an altercation between her and William Bird.

She said the altercation occurred inside their house and it started because William Bird was using “hot knives” to smoke marijuana. The officer understood that, when Ms. Sewap had confronted him about that, they got into an argument. The argument escalated into some form of physical confrontation. Ms. Sewap told Constable Riedel that, at some point during the confrontation, she had been burned by one of the knives that William Bird had been using. All of this occurred in front of their children. Constable Riedel made a couple of observations while he was speaking with Ms. Sewap.

First, she displayed signs of intoxication. Second, she had a burn mark on her left bicep. [ 9 ] Constable Riedel testified that he then went to the residence, knocked on the door and identified himself. Apparently one of the security officers went with or joined the Constable at the door. William Bird responded but did not open the door. Constable Riedel spoke through the door and told William Bird that he was under arrest for assault with a weapon. The officer told the Court that he asked William Bird to open the door, but he refused. The officer said about this time Ms.

Sewap left the security vehicle and began walking toward the house. Constable Riedel met Ms. Sewap on the driveway leaving one of the Band security officers at the door of the residence. Ms. Sewap told the officer that William Bird had been violent toward the children in the past and that she was concerned for their safety. Constable Riedel told Ms. Sewap to return to the security vehicle and he walked back to the residence. When he got to the

door, the security officer told Constable Riedel that he had heard a loud bang from inside the residence and then he heard a child crying. [ 10 ] The officer testified that, because of what he had been told by Ms. Sewap and the security officer, he became concerned for the safety of the children. Constable Riedel told the Court that he again knocked on the door and asked William Bird to open it. The officer said that William Bird refused, saying words to the effect of “you don’t have the right to be here” and, “I don’t have to open the door”.

The officer testified that he forced the door open by kicking it and entered the residence. The officer told Court he entered the residence for two reasons – to arrest William Bird and to ascertain the safety of the children. [ 11 ] Constable Riedel testified that, when he entered the house, he was in the kitchen. The officer said that, as he entered the house, he saw William Bird, two girls and another male. The officer recognized William Bird and the children. The male was later identified to be Ryan Bird – a friend of the family. The family’s dog was also inside the residence.

The officer knew the dog’s name to be “Sasha”. [ 12 ] Constable Riedel testified that William Bird was between the kitchen and the living room when he first entered the residence. Ryan Bird was on the floor in the living room and appeared to be sleeping. The children were in the living room on the couch. They were crying. The officer testified that William Bird immediately came into the kitchen and was angry and verbally aggressive toward the officer. The officer described William Bird as yelling words to the effect of “this is my house”, “I know my rights” and, “you don’t have the right to be here”.

About this same time, the family dog, Sasha, began circling the officer in a state of agitation. Constable Riedel testified that he again told William Bird that he was under arrest for assault with a weapon. The officer testified that, as the dog circled him, William Bird spoke the words “Sasha, sic‘em”. The officer understood those words to be a command for the dog to bite him. Constable Riedel testified that William Bird repeated the words several times. The dog approached him more than once, circled the officer and appeared to be trying to bite him.

Constable Riedel testified that, at this point, he was afraid the dog might injure him. The officer said that the dog’s teeth made contact with his leg at least once before the dog stopped circling him. [ 13 ] Constable Riedel then approached William Bird, told him he was under arrest, and put his hands on his arm. William Bird then pulled away from him and kept pulling away so that the officer could not get ahold of his arms. The officer testified that, during this process, a small scuffle ensued between the officer and William Bird.

Constable Riedel said that William Bird kept pushing away from the officer each time he approached. The officer clarified that William Bird did not hit him. Rather, he just kept struggling to get away from the officer. Ultimately, Constable Riedel did gain control of one of William Bird’s arms and began leading him toward the door. The officer stated that, while moving William Bird toward the door, William Bird resisted Constable Riedel’s efforts to do so by being uncooperative.

The officer said William Bird was not being physically aggressive toward him at that point – he was just uncooperative and verbally abusive. [ 14 ] Constable Riedel testified that, while he was moving him toward the door, William Bird removed a cell phone from his pocket and began recording what was happening. William Bird was holding the phone with his free hand, waving it about, and holding it in the officer’s face.

The officer estimated that William Bird was holding his phone and recording for about five minutes. [ 15 ] Constable Riedel testified that William Bird was ultimately removed from the residence and taken to his police vehicle. The officer told the Court that William Bird continued to be uncooperative by pulling away as he was being escorted to the police vehicle. At the vehicle, William Bird was searched, his cell phone and other personal effects were secured, and he was put in handcuffs. Constable Riedel then placed William Bird in the back of the police vehicle.

William Bird was provided with his rights and warnings at the police vehicle at approximately 1:30 a.m. [ 16 ] Constable Riedel believed that the audio and video images from William Bird’s recording had been “live-streamed” on some form of social media platform. The officer testified that members of William Bird’s family began showing up at the scene stating that they had observed William Bird’s arrest online. [ 17 ] Constable Riedel said he knew William Bird, the members of his family, and his pets because he lived next door to them and had done so for approximately one and one-half years.

With respect to the dog, Constable Riedel believed it to be a mixed-breed pitbull. His previous experience with the dog was that it could be both timid and aggressive. In the officer’s experience, Sasha could be aggressive if it perceived a threat toward the family, especially so if the dog perceived a threat toward the children. [ 18 ] In cross-examination, Constable Riedel was asked and denied pushing William Bird down the steps of his house.

The officer noted that William Bird stumbled several times as he was moved toward the vehicle because he was struggling to get away from the officer’s grip and the driveway was slippery. The officer said that William Bird never fell to the ground. The officer was also asked and denied punching, pushing or hitting William Bird at any time during their encounter.

Defence evidence – William Patrick Bird : [ 19 ] On January 6, 2020, William Bird resided at Montreal Lake Cree Nation at house 911. He lived with Patricia Sewap, several children, and occasionally certain nieces and nephews. At the time, he and Ms. Sewap were engaged to be married. [ 20 ] William Bird testified that, on the evening of January 5, 2020, he took his mother to bingo in Prince Albert. He arrived home at approximately 11:30 p.m. to find that the house was full of people – adults and children. Ms. Sewap was intoxicated. The adults had been drinking and everyone was partying.

William Bird testified that the house was a complete mess and he told everyone (that didn’t belong there) to leave. Everyone left except: Patricia Sewap; Desmond Sewap, who is Patricia’s son. He was sleeping in a bedroom; Ryan Bird, a friend of William Bird. He was sleeping in the living room; Celine Bird (8 years old). She was in the living room. Carlyne Bird (6 years old). She was in the living room. Sasha and Yogie, the family dogs. [ 21 ] William Bird denied that Ms. Sewap was upset that he had kicked everyone out of the house.

William Bird told Court that she said “ok” with him sending everyone home, that she went to the bedroom, and took her “antidepressants”. It was approximately 12:00 midnight. William Bird did not say how he knew that Ms. Sewap took any medication that evening – antidepressants or otherwise. [ 22 ] After everyone left, William Bird began cleaning up. As William Bird described it, the house was very messy. While cleaning up, William Bird took breaks and, during these breaks, he went outside and smoked a couple of joints of marijuana.

After he was done cleaning up, he and Ryan Bird decided to smoke the “roaches” (the last piece of the joints). To do that, he heated the tips of two knives and used the hot tips of the knives to smoke the last of the marijuana. After having done so, William Bird testified that he washed the knives and placed them with the rest of the dishes. [ 23 ] William Bird said that, while he was washing the dishes, Ms. Sewap came out of the bedroom. Although she wasn’t mad when she went into the bedroom, according to William Bird, Ms. Sewap was mad when she came out.

William Bird said she was mad because he made her sister (and everyone else) leave. William Bird said that she came toward him, that he told her “don’t”, and then he touched her with one of the knives. William Bird testified that the knife was cold at the time. Ms. Sewap then left the kitchen, went to the bathroom, and remained there for approximately 45 minutes. While Ms. Sewap was in the bathroom, Ryan Bird went to sleep in the living room on the floor by the couch. William Bird resumed cleaning the house. [ 24 ] William Bird stated that he was aware that Ms.

Sewap had called the phone line for the Band’s Crisis Response Team while she was in the bathroom. Two members of Band security (Leonard Bird and Lowel Naytowhow) arrived about 1:30 a.m. They knocked on the door and William Bird spoke to them. They told William Bird that they had received a call for assistance from Ms. Sewap and that she might be wanting him charged with assault. William Bird told Ms. Sewap that “your ride is here”. Ms. Sewap then left with Band security.

William Bird testified that, after she left, he continued cleaning the house. [ 25 ] William Bird was mopping the floors when he heard loud banging on the door and he could see flashing lights outside. The person on the other side of the door said words to the effect of “Can you come outside?” and, “I need to talk to you”. William Bird did not open the door. Instead, he told the person knocking on the door that he was cleaning the house, that he was feeding his kids, that he was in good hands, and that Band security could take Ms. Sewap to one of her family members.

William Bird also testified that he told the person ,“I know my rights”. William Bird testified that he believed Ms. Sewap had called Band security because she wanted a ride – not because she needed assistance. William Bird told the Court that Ms. Sewap was drunk and that she just wanted a ride somewhere. William Bird testified that he then began mopping the floor in the hallway and could no longer hear the person on the other side of the door after that.

In cross-examination, William Bird testified that, at this point, he was ignoring the fact that there was someone at his door that wanted to talk to him. [ 26 ] William Bird testified that, about this same time, one of the girls jumped on the kitchen table to look out the window and the table fell over. William Bird told the Court that he caught his daughter as she fell. It was at this point that the side door to his house

opened and Constable Riedel stepped in. William Bird said that Ryan Bird woke up when the police officer came in. He testified that he gave his daughter to Ryan Bird and began righting the table and speaking with the officer. Ryan Bird took the girl into the living room. [ 27 ] William Bird testified that his dog, Sasha, was very agitated after Constable Riedel entered the house. William Bird said that he repeatedly told Sasha to “sit down” or “come here and sit” because he knew that she could be aggressive with strangers – particularly if they were dressed in black.

William Bird testified that Sasha was circling, growling and approached Constable Riedel but that she was only trying to sniff him at that point. William Bird said he did not see the dog bite the officer but he was concerned that she might. Because of this concern, William Bird said he grabbed Sasha by her collar and pulled her away from the officer and made her sit down beside him. Ryan Bird then came over, grabbed Sasha and took her into the living room to sit with the girls on the couch.

William Bird said that Sasha settled down when she sat with Ryan Bird on the couch. [ 28 ] William Bird testified that he began “live streaming” his interaction with the police officer. William Bird acknowledged that Constable Riedel told him that he was required to go with him but denied that the officer told him that he was under arrest while they were in the house – just the opposite. William Bird testified that Constable Riedel told him that he was not under arrest. [ 29 ] William Bird said that the officer pushed him toward the door.

As he was moving toward the door, William Bird said that he gave his phone to Ryan Bird who continued live streaming events as they unfolded. William Bird testified that, prior to going out the door, he stopped to put on his shoes. William Bird said that, before he could do so, Constable Riedel pushed him and he fell out the door, down the stairs, and hit his truck. William Bird told Court that, when he was on the ground, the officer punched him on the back of his neck. The officer then pulled William Bird’s arm behind him and placed him in handcuffs.

William Bird testified that, after the handcuffs were put on him, the officer punched him two more times on the back of the neck and then threw him in the back of the police vehicle. [ 30 ] William Bird testified that all of these events occurred in the view of at least one of the Band security officers (Leonard Bird). William Bird also testified that these events occurred in front of various other individuals, including a relative named Elsa and her husband.

None of Leonard Bird, Elsa or her husband were called to testify. [ 31 ] William Bird acknowledged that Constable Riedel searched him prior to putting him in the vehicle and took a number of his personal possessions. [ 32 ] William Bird stated that he was fully compliant with all of Constable Riedel’s instructions after he had been placed under arrest. William Bird was released by Constable Riedel later that same evening on a condition that he reside somewhere else. When asked by his counsel, William Bird denied offering any resistance to Constable Riedel when he tried to arrest him.

William Bird denied being physical in any way with the officer during their encounter. He did, however, explain that he is a big guy that cannot be easily moved around by someone as small as Constable Riedel. [ 33 ] In cross-examination, William Bird acknowledged that he was annoyed when he came home and found so many people in his house, partying and making a mess. William Bird also acknowledged that he was not happy to find that Ms. Sewap was drunk. In cross- examination, William Bird denied having an argument with Ms. Sewap over the marijuana. He said that Ms.

Sewap was upset because he had been dumping out her alcohol – not because he was smoking marijuana. William Bird acknowledged that he touched Ms. Sewap with one of the knives he had used to smoke marijuana with. However, he denied that it was hot when he touched her with it or that he burned Ms. Sewap with the knife when he touched her with it. [ 34 ] In cross-examination William Bird was asked what he thought Ms. Sewap was doing in the bathroom. William Bird explained that, when Ms. Sewap went to the bathroom, he did not suspect that she would be calling police. Shockingly, William Bird told Court that, when Ms.

Sewap went to the bathroom, he thought she might be going to “slit her wrist” because she had done that before. [ 35 ] In cross-examination, William Bird explained that, when he told Constable Riedel, “I know my rights”, he was talking about a concern that someone might be coming to remove him from his place.

William Bird understood that, if the police are called to a person’s residence on the Reserve because of a disturbance, that person will be evicted immediately by the Band. [ 36 ] In cross-examination, William Bird explained the reason he decided to film and record his encounter with Constable Riedel was because he had heard that the officer had previously threatened other people, that he had a reputation for intimidating people in the community, and that he had “home invaded” seven other homes – meaning the officer had forcibly entered other houses by kicking in

the door. William Bird told the Court that, when the officer forced the door open, he thought it was a “home invasion” because the officer was wearing all black clothing. [ 37 ] William Bird testified that the security officers and other people witnessed his interaction with Constable Riedel and were “shocked” by the officer’s conduct toward William Bird on January 6, 2020. William Bird also testified that he had watched the video that he recorded on January 6, 2020 several times after the incident – which was saved on his Facebook page.

The recording was not played for the Court. [ 38 ] In cross-examination, William Bird denied applying any force to Constable Riedel during their encounter. He did, however, acknowledge that he is a big guy and the officer struggled to remove him. William Bird also denied being angry or defensive in any way with the officer. Rather, William Bird described his emotional state as “annoyance”. William Bird clarified by saying that he was trying to give Ms.

Sewap a good life - that he goes to work, pays the bills and expects to come home and find a clean house and happy kids – but that didn’t happen on January 6, 2020. He was also disappointed in Constable Riedel because the officer had seen William Bird previously go to work only to return and find Ms. Sewap drunk and the house in a messy state. [ 39 ] In cross-examination, William Bird acknowledged that Sasha had previously been aggressive and had attacked people. However, he clarified that those occasions had involved people who were dressed all in black and during periods of time when Sasha was in heat.

William Bird described Sasha as being more protective than aggressive. Defence evidence – Ryan Bird : [ 40 ] Ryan Bird testified that he had been friends with William Bird for years and in January of 2020 he was living with him. On January 5, 2020, Ryan Bird had been out walking around the community. He explained that he wanted to go drinking that day and he did not like to drink around the kids in the house. Ryan Bird arrived back at William Bird’s house around 10:00 p.m.

He admitted that he had consumed quite a bit of alcohol that day. [ 41 ] Ryan Bird testified that, later that evening, he was in the kitchen standing about 10 feet from the door when it burst open. He testified that Sasha and the girls were in the living room. He heard a knock at the door and then, soon after, the door was kicked in. He said a man dressed all in black entered the house. He later learned that the man was a police officer. Ryan Bird explained that he was pretty intoxicated that evening and so his memory was not very good.

He did remember the door being kicked in, a lot of yelling, and Sasha running around and barking. Ryan Bird saw the dog go to the door and bark at the police officer. He did not know whether or not the dog bit the officer, but it may have. In Ryan Bird’s opinion, the dog was trying to prevent the officer from coming into the house. [ 42 ] Ryan Bird testified that William Bird yelled at the dog and then it sat down. He said he did not see what William Bird did with the dog.

All he could remember was that, after William Bird yelled at the dog, it went and hid under the kitchen table and everything was calm after that. [ 43 ] As for the interaction between William Bird and the officer, Ryan Bird did not remember what was said by either of them. He told Court that he went into the living room and sat with the girls. He did not remember what happened between William Bird and the officer. However, he did see William Bird walk out the door with the officer.

Ryan Bird did not say anything happened as the officer and William Bird went out the door. [ 44 ] Ryan Bird testified that he did not see what happened between William Bird and the officer when they were outside. He told Court that he could see flashing lights outside. He said he stayed with the girls in the living room until all the cars left. Then he tried to get some sleep. Credibility and Findings of Fact : [ 45 ] It is a fundamental principle of criminal law that the Crown must present evidence to the Court to establish each element of

the offence and that such evidence must provide proof beyond a reasonable doubt. If the Crown cannot discharge this burden, I mustacquit. If there is evidence inconsistent with guilt and I accept that evidence, I must also acquit. If, after hearing all the evidence, I amleft in reasonable doubt by it, I must acquit. In a criminal trial, the burden never shifts from the Crown to prove its case and to do sobeyond a reasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR 742 [W.(D.)] at pages 757-58. [46] Before I set forth my findings of fact, I will note that credibility was central to my findings.

Credibility is concerned with awitness’ veracity. It’s about a witness’s honesty - their willingness to tell the truth without amplification or obfuscation. Credibility isnot an all or nothing proposition. A trier of fact may believe all, part or none of a witness’ evidence. Furthermore, a trier of fact mayattach different weight to different parts of a witnesses’ evidence. See: R v R. (D.), (SCC), [1996] 2 SCR 291 at para93. See also: R v Wolff, 2019 SKCA 103 at para 38, 380 CCC (3d) 223.

In the end, the central question is whether or not the witness’evidence is accurate. [47] A number of factors can be used to assess the accuracy of evidence, including: (

a) the overall likelihood or plausibility of theevidence, (

b) the presence of independent supporting evidence, (

c) consistency of a witness’ evidence with verifiably surrounding events,(

d) the internal consistency of the evidence, and (

e) the demeanor of the witness and the “balance” of his/her evidence. [48] In my opinion, most of William Bird’s testimony was not credible. Much of his testimony was implausible. Other parts wereinternally inconsistent. Crucial aspects of his evidence were not corroborated by his own witness. William Bird’s testimony was litteredwith inuendo and unfounded accusations. Finally, his evidence was inconsistent with other evidence I find to be credible. [49] William Bird testified that he was brutally assaulted by Constable Riedel.

Recent events around the world have reminded usthat sometimes police officers exceed their authority and engage in unlawful conduct. During his testimony, William Bird made anumber of serious allegations regarding Constable Riedel’s conduct and he did so for the purpose of undermining the officer’scredibility. William Bird told the Court he had recorded events on his cell phone, that he had stored these recording on his Facebookpage, and that he had viewed these recordings prior to testifying in Court.

In addition, William Bird told the Court that several familymembers were present and observed the alleged assault. And yet William Bird declined to tender any corroboration for his allegations.This Court was not shown his video and none of his family members testified on his behalf save his friend Ryan Bird. Furthermore,Ryan Bird did not corroborate any of William Bird’s allegations regarding Constable Riedel’s conduct, notwithstanding that he waspresent at the time William Bird alleged that Constable Riedel pushed him out the door and down the stairs when they were in thekitchen.

When asked about the interaction between Constable Riedel and William Bird in the kitchen, Ryan Bird did not testify thatanything unusual or violent occurred. While Ryan Bird candidly admitted that he was intoxicated at the time, it is improbable that hewould remember as many details as he did but forget that William Bird had been brutally assaulted by a police officer. [50] I find that William Bird’s allegations against Constable Riedel are unfounded and self-serving. His allegations could easilyhave been corroborated by evidence readily available to him.

In addition, William Bird made other ad hominem attacks on ConstableRiedel for the purpose of undermining the officer’s credibility. For example, William Bird testified that Constable Riedel was commonlyknown in the community to have committed “home invasions”. These allegations were unfounded in the evidence and tended toundermine William Bird’s credibility. [51] In addition, aspects of William Bird’s evidence were internally inconsistent. For example, Mr.

Sewap testified that, after heand Ryan Bird used the “hot knives” to smoke the marijuana “roaches”, he washed the knives and put them away with the other dishes. When he did so, he did not mention any interaction with Ms. Sewap. However, later in his testimony, he stated that he was holding theknives when Ms. Sewap confronted him in the kitchen. The two statements are difficult to reconcile. If he washed the knives and putthem away, why was he still holding them when Ms.

Sewap came into the kitchen? [52] By way of another example, William Bird testified that, when Constable Riedel entered his residence, he thought he was thevictim of a “home invasion” because the person entering the house was dressed all in black. However, William Bird also testified that hecould see flashing emergency lights in front of his residence.

The suggestion that William Bird believed he was the victim of a homeinvasion in the presence of Band security is hard to reconcile. [53] William Bird testified that one of his daughters cried out because she jumped up on the table in the kitchen to see what wasgoing on outside and she fell. He told Court he caught his daughter and then handed her to Ryan Bird when Constable Riedel came inthe house. Ryan Bird contradicted this testimony.

Ryan Bird told Court the girls were in the living room when the officer entered thehouse and that he joined the girls on the couch during the interaction between William Bird and the officer. [54] By way of another example, William Bird testified that Sasha was agitated and aggressive when Constable Riedel entered the

residence. He also told Court that he grabbed the dog by her collar and that Ryan Bird came into the kitchen and took the dog into the living room to sit with the girls. However, in his testimony, Ryan Bird told Court that Sasha stayed in the kitchen during the interaction between William Bird and the officer and hid under a table. [ 55 ] William Bird testified that, as Constable Riedel pushed him out of his residence, he gave his phone to Ryan Bird, who continued to “live stream” events, including him being assaulted by the officer.

In his testimony, Ryan Bird did not say anything about holding William Bird’s phone or recording events on anyone’s phone. Rather, Ryan Bird told Court he went to the living room, sat with the girls, and did not see anything happen. Contrary to William Bird’s assertion that Ryan Bird had his phone, Constable Riedel told Court that he took William Bird’s phone from him before he was placed in the police vehicle and that it was held with William Bird’s other personal effects. [ 56 ] These many internal inconsistencies are hard to explain and undermined William Bird’s credibility.

I am mindful that people seldom remember the same events exactly the same. However, inconsistency with other evidence provides a helpful lens through which to assess the credibility of a witness, as well as the reliability of that person’s evidence. [ 57 ] Finally, William Bird did not display balance in his testimony. Rather, it was littered with inuendo regarding Ms. Sewap. For example, William Bird testified that, when he came home and kicked everyone out of the house, Ms. Sewap went to her bedroom and that she took “antidepressants”. William Bird did not provide any explanation as to how he knew that Ms.

Sewap took any medication that evening. Based on the evidence, it is improbable that William Bird could have made any such observation. Rather, it seems likely that this statement was merely a collateral, character attack on Ms. Sewap. William Bird also implied that Ms. Sewap was the kind of person that would call emergency service merely because she wanted a ride home – not because she needed emergency services. Finally, William Bird implied that Ms. Sewap was suicidal. In cross-examination, when William Bird was asked what he thought Ms.

Sewap was doing in the bathroom, William Bird told Court that he thought she might have gone to “slit her wrist” because she had done that before. As William Bird did not check on Ms. Sewap while she was in the bathroom, it is improbable in the extreme that he actually thought she might be harming herself. Rather, this was another example of William Bird littering his evidence with inuendo and unfounded assertions.

William Bird’s credibility was undermined by these assertions because they tended to signal to the Court that he was unable to provide balance in his testimony. [ 58 ] On the other hand, I find Constable Riedel’s testimony to be highly credible. It was clear, cogent and compelling. His evidence was both logical and internally consistent. [ 59 ] I find that Constable Riedel entered the residence for the reasons he stated, namely, to arrest William Bird and to ensure the safety of the children in the home.

I find that Constable Riedel announced his presence and that William Bird knew that he was being sought by a police officer. Constable Riedel’s entry into the home was not a “home invasion”. Rather, it was the lawful exercise of authority on the part of a peace officer. The overwhelming inference is that William Bird ignored the presence of a police officer at his door because he was upset at Ms.

Sewap, he was frustrated by the involvement of emergency services, and he was concerned that he might be evicted by the Band if he was arrested. [ 60 ] I find that William Bird said the words “sic’em” to his dog, Sasha, and that he did so with the intent to incite his dog to be aggressive toward Constable Riedel. I find that Sasha did bite the officer on the leg. However, I am unable to conclude whether Sasha bit the officer because of the words spoken by William Bird or merely because the dog was agitated by the officer’s entry into the home.

While it is possible that William Bird may have also told his dog to “sit down”, if he did, he only did so after his dog had already bitten Constable Riedel. In my opinion, Constable Riedel’s clear, cogent and compelling testimony overwhelmed William Bird’s denial (which I do not believe). [ 61 ] I find that Constable Riedel told William Bird that he was under arrest and that the officer placed his hand on William Bird’s arm to take physical control. I find that William Bird pulled away from Constable Riedel and that he did so repeatedly as the officer attempted to place William Bird under arrest.

Again, Constable Riedel’s clear, cogent and compelling testimony overwhelmed William Bird’s denial (which I do not believe). ANALYSIS [ 62 ] As I have noted, it is an error of law to conclude that, because I do not find William Bird to be a credible witness and I have rejected much of his testimony, he is guilty of the offense for which he is charged. This is precisely the point of the analytical framework set forth by the Court in W. (D.) .

Simply put, irrespectively of my evaluation of the credibility of the accused or the reliability of his evidence, the onus of proof never shifts from the Crown to prove its case and to do so beyond a reasonable doubt.

[63] During argument, the Crown told the Court that it was no longer seeking a conviction on the charge of assaulting a policeofficer but was seeking a conviction for the offence of resisting arrest. Having considered the evidence in these proceedings, theCrown’s decision to not seek a conviction on the assault charge was well grounded. All witnesses agreed that the dog that bit ConstableRiedel was in a state of agitation as soon as the officer entered William Bird’s residence.

While I am satisfied beyond any doubt thatWilliam Bird told his dog to “sic’em” or said words to that effect, it was unclear whether or not the words spoken by William Bird werethe cause of the dog’s aggression toward the officer. As a result, I find William Bird not guilty of assaulting a police officer. [64] However, I am satisfied that William Bird did offer resistance to Constable Riedel at a time when that officer was engaged inthe lawful execution of his duties.

The gravamen of an offence under s. 129 of the Criminal Code is interference with a peace officerengaged in the execution of their duties either by resisting or by obstructing them. The fact that the obstructing behavior did not preventthe officer from executing their duties is not a defence. See: R v Kogalt, 2013 ABPC 175 at p. 23 [Kogalt]. Similarly, the lawfulness ofWilliam Bird’s arrest is not dependent on whether he is convicted of the underlying charge for which he was arrested.

See: R v Anderson(1996), (BC CA), 111 CCC (3d) 540 (BC CA) at p. 43. [65] I find that William Bird resisted Constable Riedel in two respects. First, he spoke words to his dog with the intention ofinciting that dog to become aggressive toward the officer. For this offence, the Crown need not prove that the dog acted upon WilliamBird’s words. It is enough that William Bird took an overt action – which he did by speaking the words “sic’em” - and that he did so forthe purpose of interfering with the officer’s actions.

Second, I find that William Bird resisted Constable Riedel by repeatedly pullingaway from the officer as he attempted to place him under arrest. [66] Finally, I am satisfied that the charge of resisting a peace officer pursuant to s. 129(

a) of the Criminal Code is a lesserincluded offence for the charge of assaulting a police officer within the meaning set forth in s. 662(1)(

a) of the Criminal Code. See:Kogalt at p. 26-29. CONCLUSION [67] For the foregoing reasons, I find Mr. Bird guilty of resisting a police officer engaged in the lawful execution of his duties. Dated this 2nd day of September, A.D. 2021, at the Montreal Lake First Nation, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J