R. v. Molison, 2019 BCPC 154

Citation: R. v. Molison 2019 BCPC 154 Date: 20190118 File No: 8733-1 Registry: Mackenzie IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS CHARLES CLYDE MOLISON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.P. MALFAIR Counsel for the Crown: C. Risely Counsel for the Defendant: C. Carleton Place of Hearing: Mackenzie , B.C. Dates of Hearing: May 18, November 23, 2018, January 17-18, 2019 Date of Judgment: January 18, 2019 [ 1 ] THE COURT: These are my reasons for judgment in connection with the trial. Mr.

Molison stands charged on four counts that on June 3, 2017, he assaulted Constable Hawco, a peace officer engaged in the execution of his duty; that he resisted or wilfully obstructed Constable Hawco while executing his duty; that he committed mischief by interfering with the use and enjoyment of the property of the Mackenzie RCMP detachment; and lastly that he resisted or obstructed Corporal Reutgen, a peace officer executing his duty. [ 2 ] These charges arise out of an impaired investigation which occurred June 3, 2017. That evening Constable Hawco, a member of

the Mackenzie RCMP, was on general duty in uniform in a police vehicle in Mackenzie conducting traffic stops and responding to general calls for service from the public. [ 3 ] At 10:17 p.m. he conducted a traffic stop of a Dodge Ram truck pulling a trailer at the intersection of Centennial Drive and Mackenzie Boulevard. This area is subject to heavy vehicle and foot traffic as it is situated between the Alexander Mackenzie Hotel and the 7-Eleven store and gas station. The truck was being driven by Tyrell Wong, an employee of Mr. Molison. [ 4 ] Mr.

Molison had been out for dinner and drinks with his employees at a local sports bar and had permitted Mr. Wong to drive the truck and trailer home, believing Mr. Wong to be fit to drive. Constable Hawco had concerns about Mr. Wong's sobriety and made a breath demand which culminated in Mr. Wong blowing a "warn" on the roadside screening device, meaning he had a blood alcohol content of between .06 and .099 millilitres of alcohol in 100 millilitres of blood. [ 5 ] In light of this result Constable Hawco decided to issue Mr.

Wong an immediate roadside prohibition and the associated three-day impound notice in respect of a vehicle. In the course of that investigation Constable Hawco learned Mr. Wong may not have a valid driver's licence, in which case the vehicle and trailer would also be subject to a seven-day impound under the Motor Vehicle Act . [ 6 ] Another passenger in the vehicle who claimed to be Mr. Wong's co-worker was permitted to leave the scene. He returned to the sports bar and advised Mr. Molison of the situation, which prompted Mr.

Molison to go to the location of the traffic stop to find out what was going on. [ 7 ] As Constable Hawco was completing the paperwork relating to the IRP and impound notices Mr. Molison arrived on scene. Mr. Wong had also given Constable Hawco a false name at the time of his detention, so Constable Hawco had placed Mr. Wong in the back of his police vehicle and was in the process of trying to determine his identity. [ 8 ] Due to the busy location there was constant vehicle traffic on the road where the truck, trailer, and Constable Hawco's vehicle were stopped.

Constable Hawco's police lights were activated and he was sitting in the driver's seat of the police car while Mr. Wong was in the back. [ 9 ] I accept the evidence of Constable Hawco that Mr. Molison approached the scene by walking down the middle of Centennial Road waving his hands above his head. At around 10:30 p.m. Constable Hawco got out of the police car to speak to Mr. Molison and the two men talked on the roadway in the gap between the police vehicle and the truck trailer. [ 10 ] Constable Hawco's first impression was that Mr. Molison appeared agitated. Mr.

Molison also appeared highly intoxicated, presenting with glassy eyes, a flushed complexion, and an overpowering odour of liquor emanating from his breath. [ 11 ] Mr. Molison identified himself as the owner of the vehicle and demanded to know what was going on. Constable Hawco advised Mr. Molison repeatedly that the driver, Mr. Wong, had been driving while impaired and had no driver's licence so the vehicle had to be impounded. [ 12 ] Mr.

Molison argued with Constable Hawco purporting to challenge the legality of impounding the vehicle, despite Constable Hawco's repeated attempts to explain the situation and rationale to Mr. Molison. [ 13 ] According to Constable Hawco, Mr. Molison made various arguments challenging impoundment. Mr. Molison insisted the vehicle could not be impounded at all because he had not been driving it. He alternatively argued that it could not be impounded for more than 24 hours. Mr. Molison argued that the vehicle could not be impounded because Mr. Molison did not know Mr.

Wong was impaired when he let him drive the vehicle. [ 14 ] When this was not persuasive, Mr. Molison changed his story and said Mr. Wong had taken his keys without his consent. Constable Hawco asked if Mr. Molison would provide a statement to that effect but Mr. Molison refused, asserting that "none of my guys are going to jail" and he was not interested in pursuing that. [ 15 ] Mr. Molison claimed to have legal knowledge of impaired driving and B.C. impound laws and demanded Constable Hawco get a lawyer on scene for him immediately. [ 16 ] Mr.

Molison stated the truck was a work vehicle and the trailer had tools in it he needed for work. He asserted he wanted the vehicle released from impound by 10:00 a.m. the next morning. Constable Hawco advised Mr. Molison he could ask ICBC for an early release of the vehicle on the basis it was necessary for his livelihood, but because it was a weekend, the vehicle would likely be impounded until at least Monday. Constable Hawco testified that he explained to Mr. Molison that both the truck and trailer would have to be impounded, but offered to help unload and transport tools from the trailer to assist Mr.

Molison. [ 17 ] Mr. Molison admitted to Constable Hawco that he had been drinking with employees at an office party and had consumed too much to drive. Constable Hawco's view was that Mr. Molison's emotions were getting heated and he was yelling and swearing at Constable Hawco. [ 18 ] Constable Hawco says that after 10 to 15 minutes of arguing with Mr. Molison, he finally told Mr. Molison to get off the roadway and onto the grass on the curb so he could finish the paperwork relating to his investigation. Throughout this time, Mr. Wong was still in the back seat of the police vehicle, while Mr.

Molison argued with Constable Hawco. Constable Hawco says he asked Mr. Molison to move because he was intoxicated and periodically veering out into the roadway which was unsafe due to the ongoing flow of traffic, some of which had to swerve to avoid colliding with Mr. Molison. [ 19 ] Constable Hawco says that upon asking Mr. Molison to move onto the grassy curb, Mr. Molison refused to move and insisted he did not need to listen to Constable Hawco's commands. Mr. Molison stood one foot from Constable Hawco's face and repeatedly said, "Push me, push me." Constable Hawco says he moved away from Mr. Molison and Mr.

Molison followed him then stopped in the middle of the driving lane on Centennial Drive, yelling that his vehicle would not be impounded and that he would drive it away before

police could impound it. He then lit a cigarette and remained in the roadway while Constable Hawco returned to his police vehicle. [ 20 ] Constable Hawco says that after the third or fourth unsuccessful command to Mr. Molison to move out of the roadway and on to the side of the road, he warned Mr. Molison that he was beginning to obstruct Constable Hawco's investigation. Cars were coming within one to two feet of Mr. Molison as they went around him. [ 21 ] Due to the location and time of night, cars were driving by around every 30 seconds. Constable Hawco was concerned about Mr.

Molison's level of intoxication and argumentativeness, and contacted his dispatcher from his car radio asking for police assistance as he was on his own. Constable Hawco became unnerved when he learned none of the other three officers on duty were answering their police radios, as he knew if the officers were in cell blocks there was no radio reception there and they would not hear any dispatch to come to his aid. [ 22 ] Constable Hawco says he stepped out of his car and told Mr. Molison to move out of the roadway or he would arrest him, as vehicles had to keep swerving around Mr.

Molison and his continued presence in the roadway was impeding Constable Hawco from completing documentation relating to his investigation with Mr. Wong. [ 23 ] Despite repeated demands by Constable Hawco to move to the grass, Mr. Molison remained unmoved, kept smoking his cigarette, and said, "You're going to have to arrest me." [ 24 ] Constable Hawco says he then told Mr. Molison he was under arrest for obstruction and commanded him to turn around and place his hands behind his back so he could be handcuffed. Mr.

Molison assumed a boxer's stance with his legs wide and his fists raised at collarbone level, and faced off to Constable Hawco. In cross-examination, Constable Hawco was adamant that Mr. Molison was assuming a fighting stance, not merely raising his hands to wipe his eyes which, at this point, had not been subjected to OC spray. [ 25 ] Constable Hawco says he was worried that no other members were coming to his aid, so he pulled out his OC spray and told Mr. Molison that if he did not cooperate, he would be sprayed. At the time the men were around 10 to 12 feet apart. Mr.

Molison took a step toward Constable Hawco with his fist clenched and laughed, prompting Constable Hawco to deploy the spray in Mr. Molison's face. Mr. Molison snickered and laughed, wiped his eyes, and continued to advance towards Constable Hawco with his fists raised. Constable Hawco says he did not expect this type of reaction to being sprayed, as it did not appear to affect Mr. Molison. He says Mr. Molison was swearing, "You're fucked" at Constable Hawco, the same threat captured after the arrest later on audiotape. The two men are relatively equal in size. [ 26 ] Constable Hawco grabbed Mr.

Molison's right arm, as he was concerned Mr. Molison might go out into the roadway while blinded by OC spray and the OC spray had not been successful in controlling him. Mr. Molison tried to pull away so Constable Hawco performed an arm-bar takedown, pinning one of Mr. Molison's hands against his side while spinning him in a fashion intended to bring Mr. Molison to the ground on the front of his body so he could be handcuffed behind his back. [ 27 ] Mr. Molison continued to try and pull away but Constable Hawco was able to take him to the ground. Constable Hawco testified Mr.

Molison landed on his left shoulder and was able to use his free arm to brace the fall. [ 28 ] Once on the ground, Constable Hawco tried to bring Mr. Molison's arm behind his back to handcuff him but Mr. Molison was able to roll on his back with his arms free. Constable Hawco was kneeling over Mr. Molison. Mr. Molison appeared angry and tried to punch Constable Hawco in the face using multiple punches from both hands. Constable Hawco was able to avoid being hit in the face, but some punches landed on his shoulders with great force. [ 29 ] Constable Hawco testified he kept instructing Mr.

Molison to stop resisting, but Mr. Molison continued to swing at Constable Hawco's face. Constable Hawco says he then punched Mr. Molison once in the forehead to try and subdue him. Mr. Molison's head was off the ground at the time Constable Hawco punched him but it did not appear to Constable Hawco that Mr. Molison's head hit the ground. The punch did not seem to have any impact on Mr. Molison. [ 30 ] Mr. Molison then grabbed the neck area of Constable Hawco's vest and pulled him down close towards him. Constable Hawco says Mr.

Molison then used one of his hands to grab Constable Hawco's testicles very hard and squeeze in a vice grip, causing Constable Hawco immense pain. Constable Hawco commanded Mr. Molison release his testicles but Mr. Molison did not comply. Constable Hawco says he then struck Mr. Molison in the nose, and Mr. Molison released his grip after the second strike. [ 31 ] In his direct testimony, Constable Hawco referred to the second strike to the nose causing Mr. Molison to release his grip, but it was unclear if Constable Hawco meant that he struck Mr.

Molison twice in the nose or that this was the second strike he had delivered in total. In cross-examination, Constable Hawco clearly referred to striking Mr. Molison only twice, the first time in the forehead and the second time in the nose. [ 32 ] While Mr. Molison was temporarily stunned, Constable Hawco says he was able to turn Mr. Molison back onto his front onto his stomach and put weight on Mr. Molison's back to restrain him. Constable Hawco was able to secure Mr. Molison's right arm but could not get his left arm, which was pinned under Mr. Molison's torso. Mr.

Molison was still struggling and trying to get away from Constable Hawco when Constable Hawco heard over the radio that another member was on his way to assist. [ 33 ] Corporal Reutgen arrived on scene very quickly. Constable Hawco estimated the entire physical interaction with Mr. Molison lasted 30 seconds to two minutes. [ 34 ] Corporal Reutgen is a 25-year RCMP member. At 10:45 that evening, he got a dispatch that Constable Hawco was requesting assistance and he immediately attended to the scene.

It took him under a minute to drive there, as the intersection where this took place is around 200 metres from the detachment, and he arrived within three minutes of receiving the dispatch. [ 35 ] When he arrived he saw Constable Hawco kneeling on top of Mr. Molison in the middle of the road around 50 to 100 metres from the intersection. They appeared to be struggling. Mr. Molison was lying on his stomach and demanding to be rolled onto his back or

be face up, and Constable Hawco was telling him to stop resisting. Mr. Molison was not handcuffed and did not appear to be under complete control of Constable Hawco. [ 36 ] Corporal Reutgen took hold of Mr. Molison's legs and performed a leg lock in an effort to assist Constable Hawco. Constable Hawco testified Mr. Molison was refusing to move his other arm out from under his body and when Constable Hawco had let go of Mr. Molison's one secure arm, Mr. Molison curled it under his front, as well, so both arms were inaccessible for handcuffing.

With Corporal Reutgen's leg lock, Corporal Reutgen was able to grab one arm and Constable Hawco was able to get the other so Mr. Molison could be handcuffed behind his back. [ 37 ] The officers were eventually able to roll Mr. Molison in a fashion where Constable Hawco could access his hands and handcuff him. Throughout this process, Mr. Molison was yelling at the officers that they were “fucked”, among other things. It appeared to Corporal Reutgen that Mr. Molison was very agitated and not cooperating with verbal commands. While reading Mr. Molison his Charter rights, Constable Hawco says Mr.

Molison tried to roll onto his left shoulder, turn his face up and spit blood at him. [ 38 ] Both Constable Hawco and Corporal Reutgen testified that after Mr. Molison was handcuffed he was sat up in a seated position on the ground. Corporal Reutgen described Mr. Molison as enraged. He had fresh blood on his face and was belligerent. Mr. Molison was screaming for a lawyer and demanding the police wipe his face which was covered in blood and OC spray. Corporal Reutgen testified Mr. Molison was not listening to him when he explained these things could not take place right away. Corporal Reutgen told Mr.

Molison he would have to wash off the OC spray at the detachment where it was safe. [ 39 ] Mr. Molison continued to order police to wipe his face and punctuated his demands with a countdown from 10, as if to convey to officers they had a deadline to comply. I find Mr. Molison employed the same tactic in the audio recording adduced in evidence of Constable Hawco's subsequent attempts to provide Mr. Molison his 10(

a) and 10(

b) rights back at the detachment. [ 40 ] Corporal Reutgen and Constable Hawco were of the view that Mr. Molison should be decontaminated back at the detachment which was a minute's drive away, as it was unsafe to do so on the roadway. Corporal Reutgen testified that he really had no sanitary materials or means to clean Mr. Molison's face at the scene. Fresh water was necessary to remove the OC spray and merely wiping Mr. Molison's face could have made the effects of OC spray worse. [ 41 ] It was Corporal Reutgen's perception that Mr.

Molison did not appear seriously injured as he was well enough to breathe, resist, and demand things. [ 42 ] Constable Hawco still had to deal with the IRP and impound notice of Mr. Wong, who was still in the back of Constable Hawco's vehicle. It was decided Corporal Reutgen would take Mr. Molison back to the detachment so Constable Hawco could finish his investigation. Constable Hawco testified that Mr. Molison refused to stand and walk, so he had to be lifted and dragged to Corporal Reutgen's police vehicle. Corporal Reutgen corroborated that Mr.

Molison had to be lifted to his feet, but said that once up, he recalled Mr. Molison did walk without the use of force to the police vehicle. [ 43 ] Mr. Molison continued to be rude and verbally abusive. Both Constable Hawco and Corporal Reutgen described that once they got Mr. Molison to Corporal Reutgen's vehicle Mr. Molison started resisting their efforts to get him into the back seat. At that point Corporal Reutgen could smell OC spray and an odour of liquor on Mr. Molison's breath. Mr. Molison claimed he could not see. Corporal Reutgen told Mr. Molison the police door was open and he should get in, but Mr.

Molison refused, saying, "I don't trust the police." [ 44 ] Corporal Reutgen asked Mr. Molison to get in four to five times, but Mr. Molison would not comply. I infer from that exchange that Mr. Molison was not entering the police car because he did not wish to go, not because he could not see where he was going. [ 45 ] Mr. Molison tried to brace his feet against the police vehicle and push back against the officers to prevent them from placing him in the back seat. I find this was

an act consistent with a person possessing sight. [ 46 ] Corporal Reutgen used a wrist or thumb-lock pain pressure technique in an effort to gain Mr. Molison's compliance but it had no effect. Corporal Reutgen ultimately ceased using that technique because he was concerned that any more pressure might break Mr. Molison's thumb. [ 47 ] Corporal Reutgen moved onto a shoulder and neck-hold technique to prevent Mr. Molison from spinning around and attacking him, and used pressure to force Mr. Molison to his knees. Then both officers muscled Mr.

Molison into the police vehicle head first on his stomach. [ 48 ] After Corporal Reutgen started driving back toward the detachment with Mr. Molison in the back seat, Mr. Molison angrily asked Corporal Reutgen if he should hit his head on the silent patrolman, being the Plexiglas window that separates the back seat from the front seat of a police car. Corporal Reutgen replied, "No." Corporal Reutgen then heard two thuds and saw the silhouette of movement which appeared and sounded to him like Mr.

Molison banging his head on the silent patrolman. [ 49 ] Although Corporal Reutgen did not directly see that impact because he was focused on driving, I find in all of the circumstances and particularly in light of Mr. Molison's preceding inquiry that Mr. Molison banged his head twice on the silent patrolman. [ 50 ] Corporal Reutgen testified that once at the detachment Mr. Molison's mood was up and down, with some periods of calm punctuating periods of escalation. After an uneventful booking, Mr. Molison was lodged in cells. Shortly after 11:00 p.m. Mr.

Molison started banging the cell door forcefully with his hands. He appeared very angry and agitated. Corporal Reutgen felt it was not safe to assist Mr. Molison to clean his eyes and instructed Mr. Molison to use the sink in the cell to wash his eyes. [ 51 ] Constable Hawco finished dealing with Mr. Wong, then returned to the detachment. He attempted to read Mr. Molison his Charter rights, but Mr. Molison was belligerent and yelling. [ 52 ] Constable Hawco audiotaped his second Charter attempt to Mr. Molison, a copy of which was adduced into evidence. On the

audiotape, Mr. Molison is obstreperous and belligerent, continuously yelling "lawyer" in a dramatic, drawn-out tone, threatening police that they are “fucked”, repeatedly demanding they give him a call to his lawyer, despite the officer trying to inform Mr. Molison of his 10(

a) and 10(

b) rights to that effect. Mr. Molison is not listening to Constable Hawco and is trying to drown him out by yelling over top of him, including shouting a countdown, "Six, five, four," etc., while the officer attempts to perform his informational duties. [ 53 ] Mr. Molison's rage and indignation is unmistakable. Constable Hawco advised Mr. Molison he would facilitate a phone call to counsel once Mr. Molison was calm. [ 54 ] While in cells, Mr. Molison proceeded to urinate on a portal hatch of the cell door. The liquid seeped into the hallway. When told by officers to stop urinating on the door, Mr.

Molison claimed he was not able to see the toilet, despite being only inches from it and having successfully walked down the hallway into cells moments earlier without any complaint about being blind and unable to see where he was going. [ 55 ] Between 11:30 and 12:30, once Mr. Molison was calm Corporal Reutgen entered the cell to allow paramedics to check on him. He took a photo of Mr. Molison. I find Mr. Molison, who was shirtless, approached Corporal Reutgen with his arms outstretched and above his head as he appears in the photo. Mr.

Molison claims he had a dislocated shoulder at that time from the struggle, however, I note that did not appear to prevent him from voluntarily raising his arms over his head as he did in the photo. [ 56 ] According to Corporal Reutgen Mr. Molison at first said he was going to sue the RCMP, but then tried to make a deal, suggesting if they gave him his vehicle back and let him go everything would be fine. Corporal Reutgen said that would not happen, and when he tried to leave the cell Mr. Molison placed his hand in the doorway to prevent Corporal Reutgen from closing it.

He refused to remove his hand despite multiple demands for him to do so, and Corporal Reutgen finally had to push Mr. Molison back to be able to close the door. [ 57 ] Mr. Molison was seen by paramedics at 12:30 a.m. and Mr. Molison was taken to hospital. There was no report of a concussion or shoulder injuries to police. [ 58 ] Corporal Reutgen shared Constable Hawco's opinion that Mr. Molison was highly intoxicated. [ 59 ] Constable Hawco explained that they called paramedics once Mr. Molison was calm and did not pose a danger. Mr. Molison suffered from the effects of OC spray. At the detachment Mr.

Molison presented with a laceration to his forehead, however, it was Corporal Reutgen's view that this injury was sustained from Mr. Molison banging his head on the silent patrolman as he did not recall seeing that injury at the scene of the arrest. [ 60 ] Photos taken at the detachment show Mr. Molison with a bloody face and laceration to his forehead. Mr.

Molison also says that over the course of the next few days he developed two black eyes and adduced photographs to that effect. [ 61 ] Constable Hawco testified he personally suffered abrasions to his knees and hands, which were captured in the photographs, and swelling to his testicles which lasted two days. [ 62 ] Corporal Reutgen sustained an injury to his pinky finger which caused it to become crooked. He believes he sustained this injury during his attempts to secure Mr. Molison in a leg lock. [ 63 ] Constable Hawco described the takedown of Mr. Molison to the ground as using Mr.

Molison's momentum to take him to the ground, and that Mr. Molison braced himself as he was coming down with his free arm. He denied Mr. Molison landed on his orbital bone. He said it did not appear to him that Mr. Molison had hit his head on the ground when Constable Hawco punched him in an effort to get Mr. Molison to release his testicles. [ 64 ] Mr. Molison called defence evidence. As such, the principles of R. v. W.(D.) apply. If I believe Mr. Molison, I must acquit. If I do not believe him but his or other defence evidence, such as that of Mr. Wong's, raises a reasonable doubt, I must acquit.

If I do not accept any of the defence evidence and it does not raise a reasonable doubt, then I must consider whether, on the evidence I do accept, the Crown has proven its case beyond a reasonable doubt. If not, I must acquit. If I do not know who or what to believe, I must acquit. [ 65 ] Mr. Molison is entitled to the presumption of innocence throughout and the burden of proof always remains on the Crown to prove its case and the elements of each offence beyond a reasonable doubt. [ 66 ] Mr. Tyrell Wong testified on behalf of Mr. Molison. He is a long-time friend and employee of Mr. Molison.

He confirmed that he had been out drinking for an employee dinner with Mr. Molison and they did not want to leave the work truck at the pub overnight because it had all the tools in the trailer. The solution was for Mr. Wong to drive Mr. Molison's truck and trailer back because he was the most sober of the group. [ 67 ] Mr. Wong confirmed he was pulled over and given a breath demand while driving Mr. Molison's truck. While sitting in the back seat of the police car he saw Mr. Molison approach and he saw the officer and Mr. Molison talking. Mr.

Molison was definitely not happy about his truck being impounded and Mr. Molison was angry and concerned. He said Mr. Molison was not yelling, but there was raised voices “for sure”. Mr. Molison wanted to know what was going on with the truck and wanted access to some tools or something. Mr. Wong thought the conversation lasted for two to three minutes. [ 68 ] Mr. Wong said he was not too sure about what Mr. Molison and the officer were saying, as he had his head down and was not impressed with himself. He saw Mr.

Molison get maced and fall to the ground, but his vision was hampered by his position in the back seat. He recalled Mr. Molison expressed concern about his truck and tools, but he could not really hear too much because he was inside the car. Mr. Wong testified Mr. Molison seemed a little aggravated and was concerned about the truck and wanted to know what was going on, but that Mr. Wong did not really know what happened after that. [ 69 ] Mr. Wong recalled hearing the officer tell Mr. Molison to stay on the curb, but Mr. Molison stepped off the curb. He says the

officer stepped back. Mr. Molison was standing, asking what he did wrong, and “got maced". [ 70 ] Mr. Wong appeared hesitant during his testimony at this point and said there were a few times he had his head down in the police vehicle, qualifying, "I did not see anything physical happen there, honestly I did not really see anything." [ 71 ] When asked in cross-examination about what happened after Mr. Molison stepped off the curb, Mr. Wong's evidence became hesitant and guarded. He agreed he could not see everything that was happening outside in front of him. Mr.

Wong was also under the influence of alcohol, having blown a warn on an ASD, so his blood alcohol was between 0.06 and 0.099 milligrams percent. I find Mr. Wong had a limited opportunity to observe and paid limited attention to the interaction between Constable Hawco and Mr. Molison, and that Mr. Wong only observed some, not all, of that interaction. [ 72 ] Mr. Wong corroborated Constable Hawco's recollection that after he OC sprayed Mr. Molison, Mr. Molison laughed. Mr. Wong said Mr. Molison rubbed his eyes and took a step forward and the officer grabbed his arm and swept his feet, and Mr.

Molison went to the ground pretty hard and hit his face. [ 73 ] In cross-examination, Mr. Wong admitted that from his position in the back seat of the police vehicle, he could not see anything that was occurring below waist height, and therefore, could not really say how Mr. Molison landed on the ground. Mr. Wong said he did see a basketball-sized bloodstain on the pavement. [ 74 ] Mr. Wong heard someone yelling, "Stop resisting," and Mr. Molison yelling something in return. I find this corroborates the evidence of Constable Hawco and Corporal Reutgen. Mr. Wong also attested to seeing Mr.

Molison dragged past him to the police car parked behind him, which corroborates Constable Hawco's testimony about Mr. Molison having to be dragged to the police car. [ 75 ] Mr. Wong confirmed it was only after Mr. Molison was placed in the police car that Constable Hawco issued Mr. Wong the ticket. [ 76 ] Mr. Molison testified on his own behalf. He said one of his employees told him about Mr. Wong being pulled over, so he took a cab to the mall near the scene. Mr.

Molison said he was wearing a white "wife beater", which I understand to mean a sleeveless T-shirt, although he later adduced in evidence photographs of a bloody white long-sleeved shirt which he also claims to have been wearing that evening. [ 77 ] Mr. Molison says he waved his arms as he crossed the street to get the officer's attention. He says he asked if everyone was okay and Constable Hawco said “yes”. He asked if anyone was going to jail and Constable Hawco said “no”. [ 78 ] He asked Constable Hawco about what was going on with the truck and Constable Hawco said it was going to be impounded. Mr.

Molison asked for how long and Constable Hawco said he did not know. Mr. Molison said he needed it for work, because it had tools, and asked if Constable Hawco could give him any information. Mr. Molison said he felt Constable Hawco was brushing him off and not giving him an answer. [ 79 ] I accept the evidence of Constable Hawco that the length of impound varied depending on whether it was a three-day impound for an IRP only, seven days for an unlicensed driver, both, or shorter if Mr. Molison could plead his case to ICBC.

In other words, it was entirely possible that at the time of this conversation Constable Hawco, who was still mid-investigation, did not know exactly how long the impound would be for. [ 80 ] Mr. Molison said he again asked how long the vehicle would be impounded and Constable Hawco would not tell him and said that Mr. Molison did not need to know. Mr. Molison said he stepped off the curb onto the street and again asked what was going on, and the officer turned around and told him to step back on the curb. Mr. Molison responded, "You are not helping me with this, so I am not stepping back.

I want to know what's going on." [ 81 ] Mr. Molison says Constable Hawco got more abrupt and rude, which made Mr. Molison anxious. He says the two men stepped out onto the street and were not yelling, but were not in agreement about what was going on. He says Constable Hawco then pulled out mace and Mr. Molison laughed, saying, "You're going to mace me?" He says Constable Hawco then stepped back around 10 to 15 feet and deployed the mace. Mr.

Molison says he was shocked and rubbed his eyes, laughing, saying, "I can't believe you actually maced me," because he was so surprised. [ 82 ] At that point he says Constable Hawco reefed his left arm behind his back, did a foot sweep, and Mr. Molison went down on his face and chest. He says at that point he was obviously knocked out as he had little recollection of what occurred afterwards. He remembers at one point feeling like an animal and wanting his face wiped for his own dignity. [ 83 ] The next thing Mr.

Molison says he remembers was waking up in a jail cell and looking out the door, and being taken to hospital by EHS. He attested to being told things by medical staff which were hearsay and for which no expert medical evidence was adduced. [ 84 ] Mr. Molison also attested to later flooding his jail cell with water because he was concerned his head was throbbing and no one was helping him. He says he learned the next day he was being charged with assaulting a peace officer and had allegedly grabbed his testicles. Mr.

Molison said he suffered a dislocated shoulder which he popped back in, that his face was very swollen, and he could not work for weeks afterwards as he was on painkillers. [ 85 ] Mr. Molison said he only had six to seven drinks that night, such that he would have blown a warn if he had driven, but was not so intoxicated he could not function. With respect to the injury to his face, he said he recalled feeling something hit him in the head before his arm was twisted and he was taken to the ground. [ 86 ] In cross-examination, Mr. Molison was asked about being angry that Mr.

Wong had been pulled over, and he replied he was not angry until Constable Hawco was “completely ignoring him as a person” when asking about his vehicle.

[ 87 ] When asked about what he did once the officer told him what was happening, Mr. Molison corrected the officer did not tell him what was happening with his truck and would not answer. Mr. Molison said he was going to ask about dropping the trailer so he could pick it up with another vehicle and only impound the truck, but they never got there because Constable Hawco "started to completely disrespect that I was there." [ 88 ] Mr. Molison admitted that the officer told him he was not finished writing up Mr. Wong, who was still in the back of the police car.

When it was put to him in cross that he therefore knew the officer was midway in an investigation, Mr. Molison replied he did for the most part, but he figured that as a matter of professionalism, Constable Hawco would talk to him, being the person who was standing right in front of Constable Hawco, and talk to Mr. Wong after, but that he, Mr. Molison, was just being disregarded. [ 89 ] When asked if Constable Hawco warned him he was obstructing justice, or obstructing him, Mr. Molison said he does not know what that means, because he is a carpenter.

When asked again whether he was alleging that at no point in the entire interaction Constable Hawco said Mr. Molison was obstructing him, Mr. Molison said that possibly at the very end, right before Constable Hawco maced him, but that Mr. Molison's intention was not to obstruct Constable Hawco, but to alleviate the situation so they could both handle their business in an appropriate manner. [ 90 ] Mr. Molison denied any discussions with Constable Hawco about moving tools from the trailer, saying nothing would have fit in Constable Hawco's squad car aside from hand tools anyway.

He emphasized that he wanted to know how long the truck was being impounded and how to find a way to leave the trailer on the street so he could pick it and the tools up and get them to work the next day. [ 91 ] Mr. Molison testified that if Constable Hawco had engaged in a longer conversation things could have been resolved, but it was so abrupt it left no time for resolution. Mr. Molison said the problem for him was that there seemed to be no need or want on the part of Constable Hawco to resolve the conversation.

When it was put to him that what was really happening was Constable Hawco had given him an answer and he was just not accepting that, Mr. Molison complained he never got a final answer. [ 92 ] Mr. Molison testified that he did not get angry until Constable Hawco was disregarding him, which he identified as the moment Constable Hawco was walking away from him while he was on the curb. Mr. Molison said he stepped off the curb and was continuing to try and ask questions and Constable Hawco was getting angry and telling him to step back on the curb. Mr.

Molison said at that point he got angry and aggravated because he felt he was being treated very inappropriately as a person in the community who Constable Hawco should have been able to deal with in a positive way. [ 93 ] When it was put to him that police may sometimes have safety concerns aside from the person they are dealing with and that they are trying to do policing, Mr. Molison replied that he did not get the sense it was about safety for Constable Hawco, it was a "control thing and disrespectful thing", and that he, Mr.

Molison, wanted to understand and get answers so he could tell his crew what was going on. [ 94 ] It was put to Mr. Molison that he had lit a cigarette in the middle of the street, as attested to by Constable Hawco, to which Mr. Molison replied, "Yeah, I heard that, but I heard I grabbed his testicles too." [ 95 ] When Crown said, "I suggest you were saying, 'push me, push me,' prior to Constable Hawco even asking you to step on the curb," Mr. Molison glibly replied, "And I can say pull out a bag of Lucky Charms too." [ 96 ] Mr.

Molison admitted he could have dealt with the situation better and it was a mistake to step off the sidewalk and approach Constable Hawco as he was walking away. Mr. Molison said he is not blatantly rude, but at the same time he likes to have a problem solved and he did not feel they were trying to get a solution as much as “disregard”. [ 97 ] When it was put to him that laughing in response to being threatened with OC spray was a bold move, Mr. Molison replied that he felt it was an “intimidation and scare tactic thing” intended to subdue him in his efforts to communicate. Mr.

Molison said when the pepper spray was pulled out, it was a power move and posited, "What was I supposed to do? Curl up in a ball and say I am sorry for stepping onto the street?" [ 98 ] Mr. Molison said he felt the production of the OC spray was intended to intimidate him, that it was a reflection of the officer's own nervousness, not the threat posed by Mr. Molison, and that it was essentially a bullying tactic intended to subdue him. When asked what he meant by subdue, Mr.

Molison explained he believed the officer was trying to emotionally subdue him by shutting him down as far as his beliefs and thoughts were concerned. It was a power move to control, an overbearing, bullying tactic. [ 99 ] When it was put to Mr. Molison that his behaviour was, in part, a function of how much he had to drink, Mr. Molison said it was not, that it was the result of being not listened to or being talked to and of being shut down and beat down. Mr.

Molison admitted he was angry in cells, but that he was scared, angry, and felt he was being taken advantage of in circumstances that were detrimental to his physical being. He denied being intoxicated or that this caused him to lash out. He says the reasoning behind stepping off the curb at all was because he was not being respected, period. Credibility [ 100 ] I found both officers to be credible witnesses. They were sober at the time of events. They had very detailed recall of what occurred. Their evidence was generally very consistent, with the exception that Constable Hawco recalled Mr.

Molison was dragged to the police car, and Corporal Reutgen recalled Mr. Molison walked. Ultimately the defence witness, Mr. Wong, corroborated Constable Hawco's recollection that Mr. Molison was dragged. [ 101 ] Constable Hawco's recollection of what Mr. Molison was saying and doing at the scene was consistent and corroborated in part by recordings of the things Mr.

Molison was saying at the detachment immediately after these events, such as his clearly belligerent and indignant attitude, the demands punctuated by a countdown, incessant dramatic demands for a lawyer, refusal to listen to the officers and respond to them appropriately, and threat to officers about how they were going to be in trouble in light of their dealings with him.

[ 102 ] Constable Hawco's description of Mr. Molison not staying on the curb was admitted to by Mr. Molison, and Mr. Molison laughing after being OC sprayed and stepping towards Constable Hawco was observed by Mr. Wong. [ 103 ] Mr. Molison admits he was consistently and repeatedly attempting to engage Constable Hawco in a discussion about impounding the vehicle, that Constable Hawco at one point told him to stay on the curb and was walking away, and that Constable Hawco told him he was writing up paperwork for Mr. Wong. Mr.

Molison admitted he heard Constable Hawco warn he was obstructing his investigation, although he claims that was only said near the end, right before he was sprayed. [ 104 ] With respect to the timeline, Constable Hawco pulled over Mr. Wong at 10:17 and first encountered Mr. Molison at 10:30. Constable Hawco testified that he radioed dispatch seeking backup upon Mr. Molison refusing to get out of the street, before the point where Mr.

Molison had gone on and stepped off the curb. [ 105 ] Corporal Reutgen testified he received the dispatch to assist Constable Hawco at 10:45, and arrived within three minutes, which would be around 10:48. [ 106 ] Mr. Molison's description of having a brief two- to three-minute conversation with Constable Hawco at the scene before the altercation is inconsistent with the actual passage of time which places the entire interaction between the two men at around 18 minutes in length. Constable Hawco's detailed description of Mr.

Molison's various arguments against impounding the vehicle, discussion about tools in the trailer, etc., would also have taken a lot of time. Mr. Molison's complaints about repeatedly feeling ignored also supports the inference that Mr. Molison was verbally interacting with Constable Hawco for more than a few brief minutes, involving a few brief, short inquiries. [ 107 ] I find that Constable Hawco and Mr. Molison verbally interacted for at least 10 to 15 minutes, then engaged in a physical altercation for 30 seconds to two minutes, at which time Corporal Reutgen arrived. Mr.

Molison's evidence about the brevity of their interaction is inconsistent with the actual passage of time attested to by the two officers which I accept. [ 108 ] Mr. Molison says he felt something hit him in the forehead, then his shoulder was pulled back and he was swept to the ground. Mr. Wong did not see any strikes to Mr. Molison's head before he was taken to the ground. However, that lack of evidence I give limited consideration, given I have found Mr. Wong's attention was divided and he did not see the entire transaction. [ 109 ] Mr.

Molison admitted his memory was not entirely clear and he was not 100 percent about being hit at that point. Given his memory is vague on that point, I prefer the evidence of Constable Hawco that the strike to the forehead did not occur until Mr. Molison was taken to the ground. [ 110 ] I find as a fact Mr. Molison was highly intoxicated as attested to by both police officers. This was corroborated by the fact that Mr. Molison admittedly had someone else drive his truck because he could not drive. His level of intoxication is also corroborated by the evidence of Mr. Wong that Mr.

Wong was chosen to drive because he was the most sober of the bunch, despite having a blood alcohol content of over .06. Mr. Molison's high degree of intoxication is also corroborated by Mr. Molison's presentation on the audio recordings which bordered on the irrational and stood in stark contrast to the articulate, calm, astute individual Mr. Molison presented in court. [ 111 ] I do not believe Mr.

Molison's evidence that when he was interacting with Constable Hawco he was calm and respectful, that he was not lighting a cigarette in the road, did not say "push me", and was only trying to politely inquire about the truck in order to resolve a problem. I find as a fact Mr. Molison was angry, belligerent, and indignant throughout his dealings with Constable Hawco from the outset. [ 112 ] Mr. Molison's evidence aligns with Constable Hawco's evidence in some very significant and revealing ways. It was Constable Hawco's view that Mr.

Molison was impeding his impaired investigation by arguing with Constable Hawco and demanding Constable Hawco deal with him and his demands about the vehicle instead of Mr. Wong. Mr. Molison's description of these same interactions was telling. It was clear to me that Mr. Molison felt disrespected by Constable Hawco's continued efforts to dismiss or remove him so he could deal with Mr. Wong. Mr.

Molison repeatedly attested to being ignored and not getting answers; of being disregarded and disrespected; not being treated appropriately; that Constable Hawco was about control and disrespect; that Constable Hawco was not interested in resolving the problem; and that professionalism dictated Constable Hawco deal with Mr. Molison as the man in front of him as the priority. [ 113 ] He described Constable Hawco's use of OC spray as a “power move” intended to intimidate him, a “bullying tactic” that reflected Constable Hawco's own insecurities.

When challenged about why he would laugh in response to an officer threatening to OC spray him, Mr. Molison's answer was telling: What was he supposed to do? Curl up in a ball and say he was sorry for stepping off the curb? [ 114 ] Mr. Molison gave the unmistakable impression of a man who was demanding attention and liked to be the one in control. That evening he was intent on getting his own way. [ 115 ] Later on at the detachment, even after being forcefully arrested to the point of sustaining injury, Mr. Molison was still trying to get police to give him what he wanted. Mr.

Molison attempted to negotiate a deal with Corporal Reutgen, saying if he could be released and get his truck and trailer back, everything would be "fine", in a context which implied Mr. Molison would not make any formal complaint against the officers if they acceded to his demands. [ 116 ] I have no doubt that Mr. Molison was furious that Constable Hawco would not give him his trailer and would not pause his investigation to focus his exclusive attention on Mr. Molison. I also have no doubt that Mr.

Molison's high expectations for respect, as he defined it, would have been accentuated by his advanced degree of intoxication. [ 117 ] The reality is there was no problem that Constable Hawco was under a duty, professionally or morally, to resolve. He had pulled over an unlicensed driver who was unfit to drive due to the consumption of alcohol. By virtue of s. 251 of the Motor Vehicle Act , he was required to impound the vehicle and trailer. The only problem was for Mr. Molison, who was somewhat the author of his own misfortune

because he had given his keys to a person he had been drinking with at a pub, without dutifully ascertaining either this man's sobriety or licence to drive. If there was a problem, it was solely Mr. Molison's, and Constable Hawco had no obligation to drop everything and help Mr. Molison solve this problem. [ 118 ] Constable Hawco's duty was to uphold and enforce the laws of the province and this country. He was entirely entitled in the circumstances to ignore Mr. Molison's complaints of inconvenience and focus on his active investigation. It was not open to Mr.

Molison to dictate what the professional priorities of Constable Hawco should be. Like Mr. Molison said, he is a carpenter, not a police officer. [ 119 ] The underlying dynamic, namely a power struggle where Mr. Molison felt the police officer should defer to him and not the other way around, is entirely consistent with Mr. Molison refusing to comply with Constable Hawco's lawful and reasonable demands throughout their interaction. [ 120 ] Mr. Molison also claims to have memory loss from that evening, which could be attributable to a head injury or to advanced intoxication.

In either event, I find the officers who were sober and detailed in their recollection, much of whose evidence was corroborated by Mr. Wong, the audio recordings, and Mr. Molison himself, to be reliable and credible witnesses. Where their evidence conflicts with Mr. Molison's, I prefer their evidence. [ 121 ] In terms of the actual assault and resistance once Mr. Molison was taken to the ground, Mr.

Molison claims to have no memory of that or the ensuing events including the struggle during his arrest, allegedly hitting his head on the silent patrolman, urinating in the cells, or his interactions with the police at the detachment. As such, he in fact offers no evidence to refute or challenge the evidence of Constable Hawco or Reutgen with respect to anything that happened after he was taken to the ground. [ 122 ] The defence suggests Mr. Molison's injuries were inconsistent with the degree of force attested to by Constable Hawco, but I do not agree.

A strike to the forehead, strike to the nose, face-down struggle, and potentially one or two bangs of the head to the silent patrolman could certainly account for the forehead laceration, “racoon eyes”, and swollen lips shown in Mr. Molison's photos. [ 123 ] In short, I do not believe Mr. Molison's evidence where it conflicts with Constable Hawco's or Corporal Reutgen's. While I believe much of Mr.

Wong's evidence, given his limited vantage point and divided attention, he did not sufficiently see or hear enough of the transaction such that I can say it directly conflicts with Constable Hawco's, or where it does so conflict, that I can find his recollection and observations to be more reliable than Constable Hawco's. [ 124 ] The only real apparent conflict is that Mr. Wong did not attest to seeing Mr. Molison assume a boxing stance before Constable Hawco OC sprayed him, but Mr. Wong admitted to the limitations of his ability to observe coupled with his own divided attention. [ 125 ] Mr.

Molison's evidence did not challenge any of the events attested to by Constable Hawco and Corporal Reutgen after the point where he went to the ground, and I do not find any basis to reject the officers' evidence on events that occurred after that point. [ 126 ] This brings me to the question of whether or not the Crown has proven its case beyond a reasonable doubt. [ 127 ] Count 1: assault of a Peace Officer: Constable Hawco.

The mens rea for assaulting a peace officer requires the general intent to commit an assault, using force against another person without their consent, together with knowledge that the person being assaulted is a peace officer who is in the process of carrying out their duties. [ 128 ] In this case, I find Mr. Molison knew Constable Hawco was a police officer. Constable Hawco was in uniform and driving a police vehicle with lights on. Mr. Molison had come to the scene specifically because he had been advised police had pulled over Mr. Wong in his truck.

He argued with Constable Hawco about the police's legal authority to impound the truck. He knew Constable Hawco was carrying out an investigation relating to Mr. Wong's driving infractions in Mr. Molison's truck. [ 129 ] Mr. Molison told Constable Hawco that “none of his guys were going to jail”. Mr. Molison admitted in his evidence that he addressed the issue of whether or not Mr. Wong was going to jail. Whether he made a demand or inquiry, the fact is Mr. Molison's concerns about Mr. Wong going to jail presumed he knew that there was an investigation underway which could result in Mr. Wong being incarcerated.

He admitted he knew for the most part that Constable Hawco was midway in an investigation. There is no doubt Mr. Molison knew Constable Hawco was a peace officer executing his duties in connection with road safety and enforcing provincial and/or federal driving laws at the time of their interaction. [ 130 ] I also find as a fact that Constable Hawco told Mr. Molison he was under arrest for obstruction and commanded he turn around, and put his hands behind his back to be handcuffed. Mr. Molison admitted Constable Hawco said something about obstruction before he was OC sprayed. As such, I find that Mr.

Molison knew at the time he used physical force against Constable Hawco that Constable Hawco was in the act of executing duties as a police officer, namely, effecting an arrest. [ 131 ] Mr. Molison has suggested that he suffered a head injury upon hitting the ground as evidenced by his amnesia, and that his intention to assault Constable Hawco after that point must be assessed in that context. [ 132 ] Assault is a general intent offence. In my view, this argument can only be legally characterized as a defence of non-insane automatism. Automatism was defined by the Supreme Court of Canada in R. v. Stone by Mr.

Justice Bastarache as follows: I therefore prefer to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. [ 133 ] To meet the evidentiary burden associated with automatism the defence must satisfy the trial judge that there is evidence upon which a properly-instructed jury could find that the accused acted involuntarily on a balance of probabilities. No medical evidence was adduced to support the contention that Mr.

Molison suffered a head injury that rendered his actions involuntary at the time of the interaction.

[ 134 ] Mr. Molison's alleged amnesia is equally explained by being highly intoxicated as having suffered a head injury, and I cannot take judicial notice that memory loss is a strong indicator of the presence of a concussion. I cannot take judicial notice that a concussion would cause someone like Mr. Molison to become violent and obstructionist with police. In the absence of admissible and relevant medical evidence, I have no basis on which to conclude that Mr. Molison had a concussion at all, or that the effects of that alleged concussion raises a reasonable doubt as to his mental state. [ 135 ] Mr.

Molison has provided no evidence about his mental state at the time of the assault other than he does not remember it. Given his statements to police throughout his interaction with them during the arrest, including telling them how they were “fucked”, which I infer was a threat to make a formal police complaint, and repeated demands for a lawyer, which is something one says to an officer, I am satisfied beyond a reasonable doubt that at the time of the assault Mr.

Molison knew he was dealing with a police officer who was trying to lawfully arrest him for obstruction. [ 136 ] The actus reus of assaulting a peace officer requires that Mr. Molison use force against Constable Hawco without consent. I am satisfied beyond a reasonable doubt that Mr. Molison assaulted Constable Hawco by punching Constable Hawco while he was laying on his back on the ground, some of those punches missing Constable Hawco's face and some making contact with Constable Hawco's shoulder.

I also find he assaulted Constable Hawco by intentionally squeezing Constable Hawco's testicles and spitting blood at Constable Hawco. Mr. Molison has not led evidence refuting those acts were committed. [ 137 ] The actus reus of this offence also requires that the officer be executing his duties at the time of the assault. Mr. Molison argues effectively that Constable Hawco used excessive force in arresting him. Although not specifically articulated in this way, I understand Mr.

Molison to be arguing that the use of excessive force means Constable Hawco was not acting in the lawful execution of his duties in the course of the arrest, in which case Mr. Molison was entitled to use force to repel force. In other words, the actus reus of the offence is not fully satisfied because Mr. Molison was entitled to use force to defend himself against an unlawful assault being committed against him by Constable Hawco. [ 138 ] Constable Hawco perceived Mr.

Molison to have minor injuries following his arrest, but notified his superior officer of the event as he felt it was his duty to advise his watch commander if a prisoner had sustained injuries during an arrest. The defence argues I should infer Constable Hawco reported the incident to his watch commander because he had a guilty mind, in that he knew he had used excessive force against Mr. Molison. [ 139 ] However, no evidence was led as to the local Mackenzie detachment or general RCMP protocol for reporting injuries sustained in the course of an arrest which contradicted Constable Hawco's evidence.

Not knowing what Constable Hawco's duties were in that respect, I cannot infer from the fact of his reporting the incident that he knowingly used excessive force. [ 140 ] I find neither Constable Hawco nor Corporal Reutgen used excessive force. Constable Hawco first tried to deal with Mr. Molison, who was inviting a fight by saying "push me, push me", by leaving him on the curb and walking away back to his vehicle to complete his investigation. After Mr. Molison followed him off the curb, Constable Hawco warned him he would be arrested. Mr.

Molison remained defiant and said, "Go ahead, arrest me." Constable Hawco then tried to use verbal commands, telling Mr. Molison he was under arrest and telling Mr. Molison to put his hands behind his back. [ 141 ] Mr. Molison responded by assuming a fighting posture. Constable Hawco then escalated to the use of OC spray, which does not require any physical interaction to subdue a prisoner. This appeared to have no effect, and Mr. Molison laughed and moved forward towards Constable Hawco, a response witnessed and corroborated by Mr. Wong. Mr. Wong and Mr. Molison testified that Mr.

Molison was rubbing his eyes, not raising his fists at Constable Hawco, and it was suggested by defence that Constable Hawco may have misinterpreted that act as a sign of aggression or raising of fists. There is merit to that suggestion. However, that one act cannot be viewed in isolation. [ 142 ] Immediately prior to being sprayed, Mr. Molison invited Constable Hawco to push him and arrest him, had refused to turn around and put his hands behind his back to be handcuffed, and had assumed a fighting stance. Right before deploying the spray, both Mr.

Molison and Constable Hawco say that Constable Hawco was backing up and in fact had backed up to being 10 to 12 feet away. I find Constable Hawco was engaging in defensive movement, trying to put distance between him and Mr. Molison. Yet even after being OC sprayed, Mr. Molison continued to advance on Constable Hawco and told him he was “fucked”, to the point he was close enough that Constable Hawco grabbed his arm and took him to the ground. Mr. Molison was laughing and swearing at Constable Hawco, and appeared unaffected by the spray, a reaction easily interpreted to be

an act of defiance or challenge. [ 143 ] Even if Constable Hawco misinterpreted that single act of wiping eyes as raised fists, Mr. Molison's continued movement toward Constable Hawco and statements made, in all of the circumstances, reasonably supported Constable Hawco's belief that physical force was necessary to secure Mr. Molison's arrest. At the time, Constable Hawco was alone. He had been told none of his other members were in radio range, such that he could be confident anyone was coming to his assistance. Mr.

Molison was highly intoxicated, angry, escalating, and appeared not to be subdued by the use of the spray. [ 144 ] Upon Mr. Molison moving towards Constable Hawco and the OC spray appearing to have no effect, Constable Hawco then progressed to using a technique intended to put Mr. Molison onto his stomach on the ground, so he could be forcibly handcuffed. I find this was not excessive and it was an appropriate progression of the use of force in all of the circumstances. [ 145 ] I accept Constable Hawco's evidence that Mr. Molison had one hand free to brace his fall, and Mr.

Molison attested to Constable Hawco only having his left arm restrained when he was taken to the ground. Mr. Wong admitted he could not see Mr. Molison contact the ground from his viewpoint. [ 146 ] Once on the ground, Mr. Molison started to punch Constable Hawco, who then responded with a single punch to the forehead. Again this was an appropriate progression in use of force, given the force being used against Constable Hawco. Constable Hawco then used another blow to the nose to force Mr. Molison to release his testicles; again, a use of force that was measured and appropriate to the circumstance.

[147] The pressure techniques used by Corporal Reutgen -- leg lock, thumb lock, and neck restraint -- were all measured andappropriate, given the amount of force being used by Mr. Molison against the officers and the level of resistance he was offering. Thesewere passive pain control techniques that did not require the use of weapons or traumatic force capable of producing serious injury. Bothofficers themselves were injured in the struggle. [148] In short, I am satisfied beyond a reasonable doubt that Constable Hawco was acting in the lawful course of executing his dutywhen he arrested Mr. Molison, such that Mr.

Molison's assault of Constable Hawco was not justifiable as self-defence against an assaultbeing perpetrated on him. [149] I find the Crown has proven its case beyond a reasonable doubt and find Mr. Molison guilty on Count 1. Count 2 - obstruction or resistance of Constable Hawco [150] The actus reus for obstructing a peace officer pursuant to s. 129 of the Act was canvassed by Mr. Justice David Paciocco in R. v.Yussuf, 2014 ONCJ 143 , [2014] O.J. No. 1487. He says at paragraph 43: [43] First, the conduct must, by its nature, "obstruct" a peace officer in the course of his duties. In R. v.

Gunn . . . it was said that"there is not, and likely cannot be, a precise legal definition of 'obstructs'" in

section 129(a). In R. v. Tortolano . . . however, JusticeDubin endorsed the definition of "obstructing" that had been adopted in an English decision, Hinchliffe v. Sheldon . . . at 408: "Obstructing" means, for this purpose, making it more difficult for the police to carry out their duties." I am therefore proceeding on the basis that any act or omission to carry out a duty that makes it more difficult for a peace officer to carryout his duty qualifies as an obstruction. As Tortolano holds, it is not necessary for the act of obstruction to succeed in frustrating a peaceofficer.

If the effect of the act is to make it more difficult for the officer to carry out their duties, an obstruction has occurred within themeaning of the section. [151] I am satisfied beyond a reasonable doubt that the actus reus of obstruction has been met. Mr. Molison obstructed ConstableHawco in the execution of his duties by continuously arguing with Constable Hawco in circumstances which impeded Constable Hawcofrom completing his investigation of Mr. Wong's sobriety, licensing, driving, and, at that time, provision of a false name.

In short,Constable Hawco was required to make inquiries and prepare paperwork relating to that investigation before he could finalize hisdealings with Mr. Wong, which he was unable to do while Mr. Molison engaged him in a protracted argument about the officer'sauthority to impound the vehicle. [152] Further, Mr. Molison's intoxication and continued presence in the road and refusal to stay on the curb and out of the roadpresented a hazard to himself and traffic, which forced Constable Hawco to cease his investigation concerning Mr. Wong to deal withMr.

Molison as a matter of public safety. [153] I find Constable Hawco made repeated commands to Mr. Molison to keep him off the road which Mr. Molison ignored.Mr. Molison admitted he stepped off the curb and would not return there deliberately because he felt Constable Hawco was ignoring him,and Mr. Molison was getting angry about that as he wanted Constable Hawco to, as he put it, “resolve the conversation”. [154] Constable Hawco gave multiple warnings to Mr. Molison that he was obstructing his investigation. Mr. Molison knew ConstableHawco was trying to finish paperwork concerning Mr.

Wong and he knew Constable Hawco was mid-investigation, but justified hisrefusal to follow Constable Hawco's commands on the basis that he felt Constable Hawco should be dealing with him first and Mr. Wongafter. [155] I find the commands given to Mr. Molison to stay on the curb and out of the road were necessary for Constable Hawco to safelyproceed with his investigation of Mr. Wong and Mr.

Molison's failure to comply with those demands impeded Constable Hawco's abilityand made it more difficult for him to carry out his investigation. [156] The mens rea for obstructing or resisting a peace officer under s. 29 was also set out in Yussuf in paragraph 52: Element 1 - There must be peace officer who is in the execution of a lawful duty as a peace officer; Element 2 - The accused person must know or be wilfully blind to the fact that this person is a peace officer and must know or bewilfully blind to the act the officer is executing; Element 3 - The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accusedperson constituting a failure by the accused to comply with a legal duty; Element 4 - That act or omission must make it more difficult for a peace officer to carry out their duties; and Element 5 - The accused person must intend to make it more difficult for the police to execute their duty. [157] I have already found that Mr.

Molison knew Constable Hawco was a police officer carrying out his duties in connection with theinvestigation of Mr. Wong. I also find that the obstructive acts, arguing with Constable Hawco and demanding his exclusive protractedattention, refusing to follow commands to get off the road and stay on the curb, inviting Constable Hawco to push him, assuming afighting stance in response to being told he was under arrest and instructed to place his hands behind his back, were intentional acts.They were not the product of inadvertence or accident. [158] All of these acts occurred before Mr.

Molison was taken to the ground or exposed to any act which could have given rise to ahead injury. [159] I find Mr. Molison was intending to impede the officer from carrying out his duties. Mr. Molison had twin objectives: to get

Constable Hawco to stop dealing with Mr. Wong and focus his attention on Mr. Molison, and to ideally prevent an impound of the truck or, at the very least, the trailer. Whether he thought he was legally correct in taking that position, which he was not, is not a defence. It does not matter that Mr. Molison believed the officer should be dealing with the person in front of him as a matter of professionalism rather than the man in the back seat of the police vehicle; or that the police had no cause to impound the trailer, or at least had some duty to work with Mr. Molison to get the trailer back into Mr.

Molison's possession. [ 160 ] As set out in Yussuf , what the accused must know are the facts relating to what the peace officer is doing, in this case carrying out a driving investigation. The accused need not know what the legal consequences of those facts are since a failure to appreciate that an officer is acting in the execution of his duty is a mistake of law which, because of general principles expressed in s. 19 of the Code , is no defence. [ 161 ] I am satisfied beyond a reasonable doubt that Mr.

Molison knew Constable Hawco was carrying out his duties as a police officer from the outset, and that he intended to obstruct him in carrying out those duties. As such, I find him guilty on Count 2. Count 3 [ 162 ] I also find Mr. Molison committed the actus reus of mischief by urinating through the portal hatch of the cell door and onto the floor, as the release of such a noxious substance in those circumstances would interfere with the lawful use and enjoyment of the police property. [ 163 ] With respect to mens rea , I have already found Mr.

Molison was not in an involuntary state at the relevant time, and was therefore in control of his actions when he urinated on the door. [ 164 ] I accept Constable Hawco's evidence that Mr. Molison was not blind when he urinated on the cell door portal hatch. Mr. Molison was able to walk to the cell and from the police car with Corporal Reutgen without any complaint of being blind or unable to see where he was going. Mr.

Molison was making eye contact with officers through the window of the cell door prior to urinating, and his behaviour would escalate whenever he made eye contact with Constable Hawco through the door. This suggests he was able to see the officers. I also find it remarkable that of all the places to aim and urinate in that cell, he chose the one small spot, a small cell food door hatch, that happened to provide access to the hallway where the officers were standing. [ 165 ] I do not believe Mr. Molison urinated through the cell door by sheer blind accident. He was enraged at police at the time he did this act.

I find he intended to contaminate the cell area with urine in the hallway to demonstrate his contempt for the police officers and render their work environment unsanitary and filthy. [ 166 ] I find that the Crown has proven its case beyond a reasonable doubt on Count 3 and find him guilty on that count. Count 4 - obstructing or resisting Corporal Reutgen [ 167 ] I am also satisfied beyond a reasonable doubt that Mr. Molison resisted and obstructed Corporal Reutgen in the execution of his duties. When Corporal Reutgen attempted to put Mr.

Molison into the police car in accordance with his duty to transport an arrested prisoner, Mr. Molison resisted, refused, said he did not trust police, and braced his feet against the car to prevent being lodged in the back seat, forcing Corporal Reutgen to have to use pain control techniques to gain Mr. Molison's compliance and muscle him eventually into the car. At the time, Mr. Molison knew the officers were attempting to arrest and transport him. [ 168 ] While in the car, Mr.

Molison further obstructed Corporal Reutgen by banging his head on the silent patrolman, a move intended to distract Corporal Reutgen from his duty to drive Mr. Molison safely to the detachment, and later on by putting his hand in the door of the cell to prevent Corporal Reutgen from closing it. [ 169 ] I find the Crown has proven Count 4 beyond a reasonable doubt and find him guilty. [ 170 ] Mr. Molison, please stand up. I find you guilty on all counts. (REASONS CONCLUDED)