R. v. Bunn, 2019 MBPC 56

CITATION: R. v. Bunn, 2019 MBPC 56 THE PROVINCIAL COURT OF MANITOBA Virden Centre BETWEEN Her Majesty the Queen ) Richard Lonstrup ) ) for the Crown - and – ) ) ) Curtis Draper BUNN ) ) Jennifer Janssens for the Accused Accused ) ) ) Reasons for Decision ) ) ) Delivered: October 18, 2019 at the Town of Virden, in the Province of Manitoba Hewitt-Michta, A.C.J. INTRODUCTION [ 1 ] Police attended a disturbance call at a residence and encountered an intoxicated, uncooperative Mr. Bunn. Police detained Mr. Bunn and attempted to remove him from his home. He did not want to leave the residence.

A physical altercation occurred between Mr. Bunn and a police officer. A trial proceeded on charges of resisting arrest and assaulting a police officer. [ 2 ] Primarily at issue is whether the evidence establishes beyond a reasonable doubt that police were engaged in the lawful execution of their duties and that the accused intended to assault the police officer. EVIDENCE [ 3 ] Constables Griffin and Assiniboine attended a residence at Birdtail First Nation Reserve.

Dispatch told the officers a female called twice asking for police assistance removing her son, Nathaniel Kay, and her husband, Curtis Bunn, because they were intoxicated and causing a disturbance. The dispatcher reported hearing commotion including raised male voices and property damage. [ 4 ] Upon arrival, police found the house in disarray. The female complainant asked police to remove both the accused and her son. Constable Griffin recalls Gwen Kay saying words to the effect of “ I want them both out; look what they did to my house ”. [ 5 ] Curtis Bunn, seated at the kitchen table, appeared intoxicated.

He had blood on his arm and a cut to his face. Officers arrested Nathaniel Kay for mischief without incident. [ 6 ] Curtis Bunn was uncooperative. He was yelling, “ This is my house and I’m not leaving ”. Police tried repeatedly to persuade him to exit the residence. They explained continually that his wife did not want him in the home because he was intoxicated. The officers tried to calm and to reason with him. They assisted him to put on a shirt and shoes. [ 7 ] The officers eventually cuffed Mr. Bunn’s hands to the front of his body. He refused to stand up.

A sober male, Anthony Tacan, tried without success to persuade Mr. Bunn to cooperate.

[ 8 ] Officers managed to raise Mr. Bunn to a standing position following which a scuffle ensued involving Mr. Bunn and Constable Assiniboine. The light went out briefly. Constable Assiniboine felt a blow to his chest that felled him to the ground. Neither officer can speak to the nature of that blow. Constable Assiniboine knows Curtis Bunn caused the impact. He is unsure whether the accused delivered a directed intentional blow or whether the contact was incidental to the accused turning to avoid leaving the home. [ 9 ] Constable Assiniboine “ dry-stunned ” (i.e. deployed Taser without probes) Mr.

Bunn without effect. Officers again tried to calm Mr. Bunn including directing him to stop resisting. Constable Griffin contacted RCMP for assistance and requested EMS attendance because of the Taser deployment. [ 10 ] While awaiting RCMP, the accused was down on the floor. Because of his size, the two officers were unable to lift Mr. Bunn to remove him without RCMP assistance. Constable Assiniboine tried to adjust the handcuffs for officer safety reasons by moving Mr. Bunn’s hands behind his back. While one of Mr.

Bunn’s hands was free, another struggle ensued. [ 11 ] Fearing for Constable Assiniboine’s safety, Constable Griffin deployed her Taser for three cycles, without effect, all the while verbally directing the accused to stop resisting. [ 12 ] EMS arrived before RCMP. Curtis Bunn was intermittently cooperative and agitated with EMS. [ 13 ] Five RCMP officers attended resulting in a change to Mr. Bunn’s attitude and demeanour. He was cooperative until he reached the police car at which time he again resisted by refusing to get into the car.

Eventually police were able to get him into the back seat. [ 14 ] Officers transported Mr. Bunn to the Brandon hospital for medical clearance before lodging him at Brandon Correctional Center. He was banging his head on the silent partner, screaming, and fighting with his son in the backseat during transport to the hospital. The officers sought backup from Brandon Police Service.

ANALYSIS [ 15 ] Defence asserts that internal and external inconsistencies in the evidence of the two police officers render that evidence unreliable and incapable of establishing the accused’s guilt for either offence beyond a reasonable doubt. [ 16 ] Constable Griffin’s evidence with respect to how police entered the residence was internally inconsistent. Initially she said either Gwen Kay let officers in or the door was open and she met them at the door as they entered. Later she said after entering the residence she saw Gwen Kay approach them from a bedroom.

Constable Assiniboine said he was not sure whether the front door was open or not but that Constable Griffin knocked and announced their entry. He did not recall if anyone greeted them at the doorway but he did remember Gwen Kay approaching them soon after their arrival. [ 17 ] With respect to the arrest of Nathaniel Kay, Constable Griffin testified she asked where he was and then easily located him in a bedroom. Constable Assiniboine said Gwen and Nathaniel Kay came into sight from a hallway.

He agreed it was possible Constable Griffin went to a back bedroom to locate Nathaniel Kay but because the home has an open layout, the view is unobstructed. [ 18 ] Constable Griffin said she first arrested Mr. Bunn for mischief but then paused and clarified that it may have been Constable Assiniboine. Ultimately, she was unsure who first arrested Mr. Bunn but insisted that both she and Constable Assiniboine told the accused he was under arrest multiple times throughout the encounter. Constable Assiniboine was also unsure who first advised Mr.

Bunn of his arrest but relied on his notes in saying that upon returning inside after detaining Nathaniel Kay in the police car, one of them told Mr. Bunn to put on his shirt because he was under arrest for mischief. Constable Assiniboine testified that he himself told Mr. Bunn he was under arrest at various times during the interaction inside the residence. [ 19 ] With respect to the first physical altercation, Constable Griffin said she saw the accused and Constable Assiniboine pushing back and forth near the doorway with Mr. Bunn’s back towards the wall around the time the light went off.

The lights were off briefly and she was unable to see anything. When the lights came back on she saw Constable Assiniboine “ dry-stun ” Mr. Bunn. She did not mention ever seeing Constable Assiniboine on the ground, nor did counsel ask her that question. Constable Assiniboine described resistance on the part of Mr. Bunn as they neared the doorway saying the accused was trying to turn back towards the officer to avoid exiting the home. He said the lights went out following which he felt a blow to his chest that knocked him to the ground. When the light was back on, he saw Mr.

Bunn standing over him, stood up grabbing Mr. Bunn’s neck taking him to the ground, following which he deployed his Taser. [ 20 ] Referencing the second physical altercation in the residence, Constable Griffin testified a scuffle ensued while Constable Assiniboine was attempting to move the handcuffs from the front to the back of Mr. Bunn. She said it happened very quickly but she saw a pulling motion back and forth between the two men. She could not recall whether they were standing or down on the ground.

Constable Assiniboine confirmed he was trying to move the handcuffs from front to back while the two were down on the ground when Mr. Bunn began pulling his free arm away from the officer to his sternum while also trying to stand up. Both officers confirmed Constable Griffin deployed her Taser three times with little effect. [ 21 ] Having considered carefully the individual discrepancies highlighted by the defence and their cumulative effect, I do not agree they are fatal to the overall credibility of the officers.

The majority of the police evidence was quite consistent and corroborative particularly with respect to material aspects of the incident. The quick, dynamic and harrowing nature of the incident accounts for most of the discrepancies emphasized by defence. [ 22 ] It is logical to expect the officer who actually arrested Nathaniel Kay will have a better recollection of those arrest details than her partner who was speaking to others in the residence at the same time. Common sense dictates Constable Assiniboine’s recall of the physical altercations with Mr.

Bunn will be more precise and detailed than that of Constable Griffin who was calling for back up or preparing her Taser during the relevant times. It is reasonable to expect after an hour-long vexing encounter during which two officers

repeatedly advise the accused he is under arrest, it may difficult to recall who spoke the notice of arrest first. [ 23 ] The officers were credible witnesses. Certainly some frailties in recall are apparent arising from the fast-paced, upsetting nature of the incident but I am satisfied their accounts of material aspects of the incident are reliable. [ 24 ] Defence argues police were not engaged in the lawful execution of their duties following the arrest of Nathaniel Kay. Defence asserts police attended with grounds and intention to arrest Mr.

Kay for mischief but then lacked grounds to remain in the residence and to arrest Mr. Bunn. I disagree. [ 25 ] There was express invitation to attend the residence by complainant Gwen Kay. She called twice. The first time she sought removal of her son. The second time she also sought assistance removing her husband, the accused. She reported they were intoxicated and damaging property in the residence. Dispatch heard raised male voices and smashing noises. When police arrived, she confirmed she wanted both individuals removed and implicated both in the property damage visible to police. Mr.

Bunn had blood on his arm and a cut, potentially indicative of a violent aspect to the altercation. [ 26 ] Based on the information known to the officers when they attended, the accused was subject to arrest for breach of the peace; mischief for damaging property; and mischief for interfering with the lawful use and enjoyment of property. Once he physically resisted police, he was subject to arrest for that as well. [ 27 ] The accused was lawfully detained from at least the moment police directed him to get dressed.

There were officer safety concerns apparent from the circumstances, including information from dispatch and the complainant; observations inside the residence; the accused’s size and level of intoxication; and observations of the accused’s person (i.e. blood and cut). [ 28 ] I believe the officer’s evidence with respect to police repeatedly advising Mr. Bunn of his arrest for mischief and later for resisting and assault. [ 29 ] Police acted reasonably in the face of Mr.

Bunn’s belligerence and resistance. [ 30 ] Police failure to advise him of his right to remain silent and to consult counsel may, upon application, have resulted in a finding of a breach pursuant to

section 10 of the Charter but would not lead me to conclude police were not engaged in the lawful execution of their duties during this incident. CONCLUSION [ 31 ] Having considered all of the evidence and weighed its reliability, I am convinced it establishes beyond any reasonable doubt that the police were engaged in the lawful execution of their duties when they arrested Mr. Bunn and that he intentionally resisted. I convict him of the

section 129(

a) CCC offence. [ 32 ] I acquit Mr. Bunn on the allegation of intentionally assaulting Constable Assiniboine. I am highly suspicious Mr. Bunn intentionally turned out the light and deliberately struck Constable Assiniboine knocking him to the ground. However, there is no convincing evidence about how the light turned off and Constable Assiniboine fairly conceded the possibility Mr. Bunn collided with him while attempting to resist removal from the residence. There is compelling evidence of the accused’s intent to resist arrest but I have doubts about whether he intentionally assaulted Constable Assiniboine. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta