Her Majesty the Queen - v. -, 2013 SKPC 188

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 188 Date: November 15, 2013 Information: 90002334 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Emerson Brown Appearing: Ms. C. Choi For the Crown Mr. C. Demens For the Accused TRIAL DECISION M. HINDS , J INTRODUCTION [ 1 ] Brian Emerson Brown is charged with three offences arising from an incident that occurred on June 20, 2012 in Regina, Saskatchewan. Those three offences are set out in Information No. 90002334 as follows:

1) While committing an assault on Constable T. Popowich, a Peace Officer, did use a weapon, contrary to

section 270.01(1) (

a) of the Criminal Code . 2) While committing an assault on Constable C. Tunison, a Peace Officer, did use a weapon, contrary to

section 270.01(1) (

a) of the Criminal Code . 3) Operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . [ 2 ] A trial occurred on these charges on October 29, 2013. At that time the accused entered a guilty plea to the charge of operating a motor vehicle while disqualified from doing so. [ 3 ] The evidence at trial reveals that on June 20, 2012, Constables Trevor Popowich and Chris Tunison of the Regina Police Service were driving a marked police vehicle and were dressed in police uniform.

Both officers had received information that a person driving a black 2003 GMC Envoy had previously evaded police. Constable Popowich had received information that the back end of the black GMC Envoy was low to the ground. [ 4 ] During the evening of June 20, 2012, Brian Brown was driving a black GMC Envoy motor vehicle in the City of Regina. He was accompanied by his friend Justin Borgon, who sat in the front passenger seat of the vehicle. Mr. Brown was disqualified from driving a motor vehicle. Shortly after 10:00 p.m., Mr.

Brown and his passenger drove into a Husky Gas Station located at 1601 Park Street in Regina to get some gas. After stopping the vehicle beside some gas pumps, Mr. Brown got out and went to prepay for gas. A truck pulled up behind Mr. Brown’s vehicle. [ 5 ] Constable Popowich was driving southbound on Park Street and observed a black GMC Envoy with a low back end parked at the Husky Gas Station. He thought this matched the description of the vehicle which had been involved in a prior evade police investigation.

Constable Popowich subsequently pulled into the gas station and positioned the police vehicle so that the front end of the vehicle was facing the front end of black GMC Envoy at a distance of approximately 10 to 15 feet. [ 6 ] The two officers exited the police vehicle just as Mr. Brown returned to his vehicle and sat in the driver’s seat. Both officers drew their handguns. [ 7 ] Constable Popowich testified that he moved forward to the passenger side window of the black GMC truck. His gun was pointed at the driver.

Constable Popowich further testified that he gave three commands (1) “Stop, police”; (2) “Show me your hands”; and (3) “Get your hands up”. Constable Popowich indicated that the accused driver initially looked at him and raised his hands and then proceeded to start the black GMC Envoy, put it into drive and accelerated away from the scene at a high rate of speed on Park Street. Constable Popowich gripped his weapon in his right hand. His left hand was also on his weapon. Constable Popowich testified that his left hand was struck by the door frame of the truck as it sped away. He testified he was not injured.

His left hand sustained a glancing blow. On cross-examination Constable Popowich agreed that a video surveillance tape from the Husky Gas Station does not show him being struck by the black GMC Envoy. [ 8 ] Constable Tunison testified that after he got out of his police vehicle he observed Mr. Brown by the gas pumps at which point he told Mr. Brown to “get down to the ground” and “get away from the car”. Constable Tunison testified his gun was drawn, at his side, pointed at the ground. Mr. Brown briefly stopped, looked at him and then got into the vehicle, put it in gear and “tore out of the lot”.

Constable Tunison further testified that as the black GMC Envoy moved forward he got out of the way. He added that he assumes the driver’s side window struck a glancing blow to his left hand, which was not injured. On cross-examination Constable Tunison agreed that a video surveillance tape from the Husky Gas Station does not show him being struck by the black GMC Envoy. [ 9 ] Brian Brown testified. He recalls paying for gas and walking to his vehicle and suddenly having “two guns” pointed at his head. Mr. Brown testified in-chief that he panicked.

He got into his vehicle and drove forward “slowly” around the police vehicle parked in front of his vehicle. Mr. Brown further testified that the officer who exited the passenger side of the police vehicle (Cst. Tunison) did move out of the way quickly. Mr. Brown testified that the police officer who got out of the driver’s side of the police vehicle (Cst. Popowich) was beside his own police vehicle, not beside Mr. Brown’s vehicle. Mr. Brown was adamant that the police vehicle did not have its front lights on and that his vehicle did not touch either of the police officers. On cross-examination Mr.

Brown admitted that after he got into his vehicle he recognized the men were police officers and that he panicked because he was driving while

disqualified. [ 10 ] Justin Borgon was a front seat passenger in Brian Brown’s vehicle. He testified that he observed the police pull in front of their vehicle at the gas station. Justin Borgon testified that as Brian got into the vehicle the police had their guns out and were “telling us to stop”. Mr. Borgon further testified that the police did not come near the black GMC Envoy vehicle. He said he immediately recognized the police. The police officer who was on the passenger side of the black GMC Envoy was 4-5 feet away, to the side.

The police officer who was on the driver’s side of the black GMC Envoy was 6-7 feet away, to the side. Mr. Borgon also testified that “our vehicle didn’t make contact with either police officer”. ISSUES 1. Were the police officers acting in the lawful execution of their duty? 2. Did the accused’s vehicle contact the police officers? 3. Did the accused intend to assault the police officers? 1. Were the police officers acting in the lawful execution of their duty? [ 11 ] Sections 270 and 270.01 of the Criminal Code deal with the offence of assaulting a peace officer with a weapon.

These provisions read as follows: Assaulting a Peace Officer 270.

(1) Everyone commits an offence who (

a) assaults a public officer or a peace officer engaged in the execution of his duty or a person acting in aid of such an officer; Assaulting Peace Officer with Weapon 270.01

(1) Everyone commits an offence who, in committing an assault referred to in

section 270 , (

a) carries, uses or threatens to use a weapon or an imitation of one; [ 12 ] The defence contends that Constables Popowich and Tunison were not engaged in the lawful execution of their duty when they encountered the accused at the Husky Gas Station. I find no merit to this argument. In this case both officers were aware that the driver of a black 2003 GMC Envoy vehicle with a low back end was wanted in relation to previous evade police investigations. Earlier that same day Constable Tunison briefly observed such vehicle but eventually lost sight of it.

That evening Constable Popowich spotted a vehicle matching this distinct description parked at the Husky Gas Station on Park Street. The police in my view acted appropriately in attempting to box this vehicle in and arrest the driver of the vehicle. While neither of the officers specifically said that Mr.

Brown was under arrest, the words used by Constable Popowich (“Stop, police”; “Show me your hands”; and “Get your hands up”) and Constable Tunison (“Get down to the ground” and “Get away from the car”) in my view would lead a reasonable person faced with those circumstances to conclude they were being detained and/or arrested and were not free to leave. Indeed, the accused testified he panicked because he was driving while disqualified. It is clear that Mr. Brown knew the police were going to arrest him and that he decided to flee. 2.

Did the accused ’s vehicle contact the police officers? [ 13 ] Constables Popowich and Tunison each testified that they sustained glancing blows to their left hands as the black 2003 GMC Envoy vehicle sped away from the gas station. Both officers candidly admitted that they were not injured as result of the contact and that video surveillance of the gas station did not show them being hit by the vehicle.

[ 14 ] On the other hand, the accused and his friend Justin Borgon maintain their vehicle did not make contact with the police officers. [ 15 ] Given this conflicting evidence, I am left with a reasonable doubt as to whether the black GMC Envoy vehicle struck either of the officers. In addition, I have a reasonable doubt as to whether the accused intended to assault the police officers. Hence, I find the accused not guilty of counts 1 and 2. [ 16 ] Lastly, I note that had the Crown prosecuted the accused for the offence of resisting or wilfully obstructing Constables Popowich and Tunison in the execution of their duty, contrary to

section 129 (

a) of the Criminal Code on these same facts, I would have convicted the accused of that offence. _______________________ M. Hinds, J