Her Majesty the Queen - v. -, 2012 SKPC 175

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 175 Date: November 28, 2012 Information: 46423256 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Adam Tysdal, Clifford Ronald Hamilton, Keith Anthony Walliser Appearing: Tom Macnab For the Crown Morris Bodnar, Q.C. For the Accused, Jeffrey Adam Tysdal Brad Mitchell For the Accused, Clifford Ronald Hamilton Leslie Sullivan For the Accused, Keith Anthony Walliser JUDGMENT B.M. SINGER , J INTRODUCTION [ 1 ] Jeffrey Adam Tysdal, Clifford Ronald Hamilton and Keith Anthony Walliser are before the Court because of an incident that

occurred on August 12, 2012 on the Broadway Bridge in the City of Saskatoon. They are all charged with unlawfully assaulting Constable Lisson, a peace officer engaged in the lawful execution of his duty contrary to s. 270(1) (

a) of the Criminal Code . They are also all charged with wilfully obstructing Constable Lisson, a peace officer engaged in the lawful execution of his duty by placing themselves physically between the officer and the person he was attempting to arrest in an attempt to impede the arrest contrary to s. 129 (

a) of the Criminal Code . [ 2 ] Jeffrey Adam Tysdal is also charged with unlawfully assaulting Constable Talloden, a peace officer engaged in the lawful execution of her duty contrary to s. 270(1) (

a) of the Criminal Code . EVIDENCE OF THE CROWN [ 3 ] Constable Lisson testified that at the relevant time he was a peace officer with the Saskatoon Police Service with slightly over two years of experience. On August 12, 2012 at approximately 1:55 a.m. he was on patrol with Constable Talloden coming from an unsuccessful attempt to locate a subject in the area of Broadway and 8 th Street. He was still on the lookout for this subject when on the south walkway of the Broadway Bridge he saw four individuals walking towards downtown. [ 4 ] One of the individuals was wearing a gi, a white karate training uniform.

He saw this individual tackle one of the other three. The fellow in the gi ran toward the other individual and spear tackled or aggressively tackled that person. It was like a football tackle, according to him. He says he was about 50 metres away when he saw this happen. [ 5 ] Constable Lisson testified that at the time he saw this tackle he was unsure what was going on, but it was certainly something that he felt he had to investigate. He put on his emergency lights and siren and pulled up beside the concrete barrier within feet of the incident.

His view was partially blocked by the barrier but he recalls seeing punching motions by the fellow in the gi to the male who was hidden but lying in the sidewalk area. He believed the fellow in the gi was assaulting the person on the sidewalk, but admitted that he didn’t know if it was an assault or a consensual fight.

The officer quickly left his vehicle and ran up to the barrier yelling “police, stop fighting” indicating that it was his intention at that time to intervene. [ 6 ] As he looked over the barrier he reports seeing the man in the gi choking the man on the ground to the point that the man on the bottom was becoming very red in the face. Constable Lisson testified he reached over the barrier, pushed the male in the gi on the chest or the shoulder area to get him off the other man. The man wearing the karate gi was Mr. Walliser. The person on the ground was Mr. Hamilton.

The other two individuals who were present were Mr. Nickel and Mr. Tysdal. Constable Lisson testified that Mr. Nickel was on the Broadway side of the two on the ground or on his left as he approached the barrier. According to Constable Lisson Mr. Tysdal was on the other side or his right on the downtown side of the incident. [ 7 ] Constable Lisson explained that the choking made him believe he was intervening in an assault in progress. He pushed Mr. Walliser backwards and testified that Mr. Walliser pushed him back. As a result the officer immediately informed Mr.

Walliser he was under arrest for assaulting a police officer. He called for back-up but as he said, not in a distressful way, and leapt over the barrier, put his hands on Mr. Walliser and told him he was under arrest for assaulting a police officer. Mr. Walliser was standing up. He says that Mr. Walliser hit his hands off and that Mr. Tysdal then came between him and Mr. Walliser. [ 8 ] According to the police officer Mr. Tysdal was saying “this is not a big deal, we are on the same team, we are firefighters”. He then says Mr. Hamilton rose up from the ground and also put himself between Cst. Lisson and Mr.

Walliser. Mr. Hamilton, the victim of the tackle, was also trying to tell the police officer “we know each other, this doesn’t have to happen” and according to Constable Lisson, “they were attempting to stop me from accessing Mr. Walliser”. He thought at this time that Mr. Tysdal and Mr. Hamilton were trying the de-escalate the situation. He testified that Mr. Tysdal kept telling him words like “we all know each other, we’re all on the same team”. The officer, insisted on getting at Mr.

Walliser, pushing his way through to get to him and according to his evidence, insisted he was going to make a “lawful arrest”. [ 9 ] As he was pushing his way past Mr. Hamilton, he says Mr. Hamilton pushed back, so he turned to him and told him that he

[ 9 ] As he was pushing his way past Mr. Hamilton, he says Mr. Hamilton pushed back, so he turned to him and told him that he too was under arrest. Constable Lisson put his hands on his shirt and pulled at Mr. Hamilton. At this time Constable Lisson says Mr. Tysdal put him in a bear hug from behind restricting his movements and Mr. Hamilton hit him with a closed fist, a glancing blow, and tried to hit him two or three times more. The officer said he freed himself from Mr. Tysdal’s grip and returned the punches to Mr. Hamilton but was wrapped up by Mr. Tysdal again. During this activity he didn’t know where Mr.

Walliser or Constable Talloden were. [ 10 ] According to Constable Lisson he was able to get free of the grip he was in but all four of the firefighters were then in front of him as he faced the Broadway end of the bridge. He asked his partner to call for back-up again. [ 11 ] Even though Mr. Tysdal and Mr. Hamilton were now at least an arm’s length away, Constable Talloden from behind Constable Lisson, sprayed her OC spray towards them. All of a sudden there were other police officers present. Mr. Hamilton was grabbed from behind and pulled over the barrier and placed under arrest by one of those officers. Mr.

Walliser was grabbed and also pulled over the barrier. Constable Lisson told Mr. Tysdal to put his hands behind his back but he refused and another officer pulled Mr. Tysdal’s arms back and arrested him. [ 12 ] The allegation based on this evidence is that Mr. Walliser assaulted the police officer Constable Lisson when he pushed back at him after Constable Lisson pushed Mr. Walliser. The allegation against Mr. Tysdal is that he interfered with Constable Lisson’s arrest of Mr. Walliser and assaulted Constable Lisson by holding him in a bear hug. The allegation against Mr.

Hamilton is that he punched Constable Lisson and also interfered in the arrest of Mr. Walliser. [ 13 ] Constable Lisson was cross-examined and he agreed that prior to and during the incident that both police officers were informed that the fellows on the ground were friends and that they were having a bit of fun, playing around. [ 14 ] Questioning revealed that the decision of Constable Lisson to intervene in what he was being told was a bit of fun between friends was formed to a great extent by his observation that Mr. Walliser was on top of Mr. Hamilton, choking him, so that his face was turning red.

However, this observation was not recorded in his notes, made at the time, or in his complete history of the offence in the police report. Indeed the first time, he says, he revealed the choking was on the stand in direct examination. He had no real explanation for this omission. [ 15 ] The Court learned from cross-examination that in his written police report, his description of what he observed was that he described Mr. Walliser and Mr.

Hamilton as rolling around on the ground. [ 16 ] Given these concerns about his evidence it is important to review the evidence of Constable Talloden in detail. [ 17 ] Constable Talloden in her direct examination said that she observed four individuals walking down the Broadway Bridge. She saw Mr. Walliser in his karate gi and Mr. Hamilton in his red t-shirt. In her evidence she testified that she saw Mr. Walliser run after Mr. Hamilton and take him to the ground. She said “he blind-sided him - ran toward him from behind and tackled him to the ground”.

She further described this as “arms around him and throwing him to the ground”. Her recollection is that Mr. Nickel and Mr. Tysdal were slightly ahead of Mr. Hamilton when this happened. The Court learned in cross-examination, however, that Constable Talloden did not describe anyone being blind-sided from behind or tackled in her notes. As well, at first, she testified she used the word tackled throughout her police report, but upon reading it again, had to admit that the word “tackle” did not appear anywhere in her police report. All her report said was that the two were fighting.

All that her notes say was that she initially saw two people fighting, standing. Unlike Constable Lisson, she testified that the police car was beside these individuals when she saw the “tackle”, just a car length away. [ 18 ] In direct examination she said “as we exited the patrol cars I heard the two males (Mr. Nickel and Mr. Tysdal) say to us ‘come on guys they’re just play fighting’”. When she and Constable Lisson got to the barrier she says she observed Mr. Walliser on top of Mr. Hamilton. She saw Mr. Walliser strike Mr.

Hamilton with punches numerous times while they rolled around on the ground on the pedestrian crossway. She went on to say that it did not look like they were play fighting as they were both striking each other. During this time Mr. Tysdal and Mr. Nickel both continued to shout that the two on the ground were just play fighting. [ 19 ] She indicated that Constable Lisson and herself both were also shouting “City police, stop fighting”. She did not testify either on direct exam or on cross-examination that she observed anyone choking anyone.

[ 20 ] She testified that her partner intervened by immediately pushing Mr. Walliser off the top of Mr. Hamilton. She added that Mr. Walliser shoved her partner back and that Constable Lisson immediately jumped over the barrier. Her recollection is that Constable Lisson said “you’re under arrest for assault” and then the next thing she saw was Mr. Tysdal grabbed Constable Lisson from behind. She did not testify that either Mr. Tysdal or Mr. Hamilton got between Constable Lisson and Mr. Walliser and tried to explain that they were just friends or that they tried to de-escalate the situation. She testified that Mr.

Tysdal put his hands on Constable Lisson and obstructed him so he couldn’t get control of Mr. Walliser. At that point in time she says she jumped from the barrier and put Mr. Tysdal in a headlock in an attempt to pry him off her partner. [ 21 ] Upon cross-examination the Court learned that her notes made at the time do not indicate that Mr. Tysdal obstructed Constable Lisson from behind. She indicated that “Keith” (Walliser) was the individual who did that.

She then testified that was a mistake she had detected and changed when she reviewed her report. [ 22 ] She was then asked to read her report and even though she testified, seconds earlier, that she had previously changed the name in her report, her review of her report does not indicate that there was any change made. This is in spite of testifying that she had earlier made other changes to her notes because she had the names mixed up. [ 23 ] Constable Talloden testified that she believed that Constable Lisson was then shoved and heard him say “the male in the red t- shirt” who we know is Mr.

Hamilton “was under arrest too for assault”, so she went around the group and tried to get a hold of Mr. Hamilton herself. She says that throughout Mr. Tysdal was being obstructive and that Mr. Walliser came between Constable Lisson and his attempt to arrest Mr. Hamilton. Her evidence is that when she grabbed Mr. Tysdal in a headlock his response was to turn around and shove her back with his hands, hard enough so that she went backwards. She then says Mr. Tysdal went back to holding Constable Lisson’s hands from behind and she observed Constable Lisson being shoved back by Mr. Hamilton even though Mr.

Tysdal was directly behind him. She also testified that she was on Constable Lisson’s left side, Mr. Tysdal was behind him holding him in a bear hug and she saw Mr. Walliser on Constable Lisson’s right side. She says that in spite of being on Constable Lisson’s left side she saw Mr. Walliser try to restrain Constable Lisson’s hand on his right side. It should be noted that later in cross-examination she denied that she could see anything on her partner’s right side as he was blocking her view. [ 24 ] At the same time that she says that she saw Mr.

Walliser try to restrain Constable Lisson’s hand on Constable Lisson’s right side, she was engaged with Mr. Tysdal who was directly behind Constable Lisson. She said she left this position to go over to Constable Lisson’s right side and tried to hit at Mr. Walliser by giving elbow strikes to his rib and kidney region and knee strikes to his thigh. She did not record any of these blows in her notes. It was also pointed out to her and she agreed that there was nothing in her police occurrence report about them as well.

She thought that she had put it in her use of force report, a document that she has to file whenever force is used. When it was pointed out to her that the knee strikes were indeed recorded in her police report she changed her evidence again. She then testified that during all of this activity she called for further back-up however this call may not have been successful as her radio was on the wrong channel. [ 25 ] Constable Talloden testified that she went to the left side of her partner and saw Mr. Hamilton face to face with him. Mr. Tysdal was still right behind him.

Her evidence was that she then deployed her OC spray towards Mr. Hamilton and Mr. Tysdal. This is hard to picture from her evidence because Mr. Hamilton was in front of Constable Lisson and Mr. Tysdal was behind him as was Constable Talloden. Perhaps she again had the names mixed up because her diagram [P-1] shows her behind Constable Lisson, with Mr. Tysdal on one side (not behind) Mr. Hamilton and Mr. Walliser in front.

Shortly thereafter back-up arrived. [ 26 ] Summarising her evidence at the end of her direct examination she said that when she and her partner got out of the police vehicle and first approached the individuals all they said was “City police”. She later revised that to “City police - stop fighting”. [ 27 ] She did however confirm throughout her evidence that right from the beginning she was told that the individuals were play fighting, fooling around and were friends.

She testified however in cross-examination she did not believe they were fooling around because they continued to fight. [ 28 ] This is contradicted in her notes because as she records there “the males began to be passively resistant when told to stop fighting”.

[ 29 ] The Crown called three other police witnesses. Constable Chris Teichred was one of the back-up officers first on the scene. He heard Constable Lisson’s initial call for assistance and arrived at the Broadway Bridge within 10 or 20 seconds. He observed Constable Talloden engaged with one individual and Constable Lisson with one individual at his left hand and another at his right. He said they were struggling. He arrested the fellow in the red t-shirt. This was Mr. Hamilton. [ 30 ] Constable Chris Martin was another officer who responded to Constable Lisson’s request for assistance.

When he arrived he saw Constable Lisson standing with Mr. Walliser, the fellow in the karate gi. He placed Mr. Walliser under arrest. He says the fellow in the red t-shirt was standing close by. Constable Dale Kirchgessner also attended the scene. He heard a call for assistance from Constable Talloden. When he arrived there were a number of patrol cars at the scene already. He saw Constable Lisson struggling with an individual whom he arrested. This was Mr. Tysdal. In cross-examination he said he wasn’t sure if it was Mr. Tysdal who Constable Lisson was dealing with but that Mr.

Tysdal was mostly cooperative with him throughout his arrest and detention. EVIDENCE FOR THE DEFENCE [ 31 ] Mr. Nickel was called as the defence’s first witness. He was the other firefighter present. He was not charged with anything arising from this incident; he was sober and observed the entire event. He stated that he met up with the three accused and other firefighters for a birthday celebration at Lydia’s Restaurant on Broadway Avenue. It was an 80’s theme party and his friend Mr. Walliser was dressed as the karate kid. He and Mr. Walliser, Mr. Hamilton and Mr.

Tysdal are all on the same shift at the same fire hall. They are on the same team. He arrived at Lydia’s about 11:30 p.m.; the party was in progress. Mr. Nickel and his three friends, the accused, then went down the street to Bud’s on Broadway and stayed there about half an hour. They left there about 1:30 a.m. They were going to walk to a bar in the downtown area. He indicated that, from his observation, Mr. Hamilton and Mr. Walliser had certainly been drinking and may have been intoxicated; his friend Mr. Tysdal was more sober. [ 32 ] The four of them were walking on the Broadway Bridge having a good time.

At one point Mr. Hamilton and Mr. Tysdal were ahead and Mr. Walliser slightly behind. There was a lot of good natured pushing and shoving. All of them were involved, including himself. He described it as shoulder checking, pushing and horsing around. [ 33 ] At one point his friend Mr. Walliser ran into them all and there was a great deal of body contact. Everyone just laughed. As they were about three-quarters of the way down the bridge he saw his friends, Mr. Hamilton and Mr. Walliser, grappling and wrestling around. They slipped and both fell to the sidewalk.

They were wrestling back and forth when all of a sudden a police car pulled up. This was within seconds of them falling to the ground. He testified he heard a siren go “whoop whoop”, then he saw the police vehicle. At that time Mr. Walliser and Mr. Hamilton were on the sidewalk.

He had no concerns about their activity, however he was concerned that the police officer may have misinterpreted what was going on so he immediately yelled “we’re all friends, they are just play fighting” to Constable Lisson. [ 34 ] His evidence is that the next thing he saw was that Constable Lisson had leapt over the barrier and was on top of his friend Mr. Hamilton who was lying on the sidewalk. The police officer had his knee on Mr. Hamilton’s back or head and was pushing him into the walkway. This happened very quickly. He describes Mr.

Hamilton as being on his stomach, the left side of his face on the sidewalk and his friend, Mr. Walliser, was beside them on the ground. At that point Constable Lisson’s knee was shoving Mr. Hamilton’s head into the concrete. [ 35 ] Mr. Hamilton was able to get out from under Constable Lisson and pushed himself up. He saw the officer go toward Mr. Walliser. Mr. Hamilton and Constable Lisson grabbed at each other. They are both standing and grabbing at each other in a wrestling manner. From this point on he doesn’t recall where his friend Mr.

Walliser was, nor had he seen any other police officer present. [ 36 ] Both he and his friend Jeff (Mr. Tysdal) yelled to the police officer “stop we haven’t done anything”. He saw that his friend Mr. Tysdal was concerned Constable Lisson was overpowering Mr. Hamilton and that he watched as Mr. Tysdal grabbed Constable Lisson from behind. Mr. Tysdal placed his right arm under Constable Lisson’s right arm and his left arm under Constable Lisson’s left arm and was trying to restrain him and pull him back but it had no real effect.

Constable Lisson’s arms were unrestricted and he was talking on his microphone; asking for back-up and asking someone to use pepper spray. While the officer was grappling with Mr.

Hamilton and while Mr. Tysdal tried to restrain the officer, he saw Constable Talloden come from the lower part of the bridge. This is the first time he saw her. She used her spray and sprayed Mr. Tysdal in the eye. He says he also got hit from the spray. He does not know who else might have been affected. His eyes started tearing and he was not able to see anything for a short period of time; when his vision cleared there were five or six police cars and other policemen on the bridge. According to him, the whole thing happened very quickly . [ 37 ] Mr.

Nickel admitted that he was a good friend of the accused firefighters, not only do they work together but they have a social relationship as well. [ 38 ] At no time did Mr. Nickel testify that Mr. Walliser was choking Mr. Hamilton, nor did he testify that Mr. Tysdal got between Constable Lisson and Mr. Hamilton. He did not see Constable Talloden put Mr. Tysdal in a headlock or Mr. Tysdal push Constable Talloden. Indeed he testified there was no contact between Mr. Tysdal and Constable Talloden. He did not see Constable Talloden elbow strike or knee strike any of the individuals. Indeed Mr.

Walliser was not involved in any scuffle, pushing or struggling with anyone according to his evidence. [ 39 ] Significantly he never heard any of the officers say “stop, police” or “stop fighting”. [ 40 ] Mr. Nickel was vigorously cross-examined by the Crown and agreed that he may have missed some of the things that were going on in the incident and that even though he never looked away he still may have missed some of the details. He had given a statement to the police about what he observed, however he was not called as a witness by the Crown. [ 41 ] Mr. Keith Walliser testified on his own behalf.

He had been drinking at Lydia’s from just before 8:00 p.m. at a birthday party for a colleague. He believes that he had between nine and ten beer and a couple of drinks of rum, finishing drinking about 1:00 to 1:30 a.m. He said he could feel the effects of the alcohol and would not have driven a vehicle. He was wearing the karate gi that night as it was an 80’s themed party. [ 42 ] He recalls walking down the bridge having fun with his friends. He was wearing flip flops that night and stopped to demonstrate a few of his karate moves. Soon the other firefighters were about 20 or 30 feet ahead of him.

He ran to catch up to them. He bumped into two of them, kind of body checked them with his shoulders in a playful manner. Everyone was laughing. He and his friend Mr. Hamilton grappled and wrestled with each other. He says they both tripped and fell together and hit the sidewalk. He remembers hearing two blips of a siren but the next thing he remembers after that is wearing handcuffs and being asked to get into a police car. In the incident at some point he received a head injury. There was a three inch bump on the right side of his head and he was in some pain the next day and went to see a doctor.

He was told he had a concussion. He says that he could not even remember his phone number. [ 43 ] At no point did he hear anyone say “stop, police”. [ 44 ] Mr. Tysdal testified on his own behalf and said he had a clear recollection of what occurred. He was a new firefighter having started just in October 2011. He got to Lydia’s about 8:00 p.m. and left about 1:00 a.m. and went to Bud’s on Broadway. He indicated that he drank a couple of pints of beer at Lydia’s and nothing at Bud’s on Broadway. [ 45 ] He described all three of the other firefighters as really good friends. Mr.

Hamilton is his preceptor, a kind of mentor at work, so he feels especially close and responsible to him. [ 46 ] As they were walking down the bridge he remembers Mr. Walliser in his white gi trailing behind them. He remembers him shouldering past them and busting through. It was all in good fun. He remembers Mr. Hamilton and Mr. Walliser locking arms and jostling each other when they fell to the ground laughing. He says they were all laughing. He testified there was no spear tackle or tackling from behind. He was watching them when they fell to the ground. They continued to wrestle around there.

There were no punches thrown, no choking, they were just play fighting. There was nothing aggressive about it according to him.

[ 47 ] All of a sudden he heard two blips of a siren and saw a police car that had pulled up beside them. He was surprised. He saw the male officer get out of the driver’s side. He now knows that to be Constable Lisson. The vehicle was very close to the barrier, almost parallel to it. Constable Lisson ran up and he realized that the police officer was misunderstanding the situation so he began to yell “they’re play fighting”. Constable Lisson went over the rail and pushed Mr. Walliser. He testified that the police officer never said anything. He says he saw the police officer push Mr. Walliser off Mr.

Hamilton, but the police officer still had not said anything. He did not say anyone was under arrest. Mr. Tysdal and Mr. Nickel continued to yell “we’re all friends, we’re all friends, stop”. [ 48 ] At that point in time his attention turned to the police car as he saw Constable Talloden get out of the vehicle on the passenger side and stand on the other side of the barrier. He testified he never saw any pushing by Mr. Walliser on the police officer. Indeed after Mr. Walliser was pushed off Mr. Hamilton, that was the last time he saw him get involved in any way during this incident.

What he did see was Constable Lisson directly on top of Mr. Hamilton, his knee on Mr. Hamilton’s body. He kept saying “stop, stop” while the police officer and Mr. Hamilton were kind of wrestling with their arms together. Everyone was yelling at the police officer to stop. He testified “none of our pleading was heard” and he became afraid for his friend and mentor Mr. Hamilton. He says he pulled Constable Lisson up and grabbed him under his right and left shoulder in the chest area from behind. He was trying to pull Constable Lisson back from the situation telling him three or four times just to take it easy. Mr.

Hamilton was saying “we’re fine, we’re fine” and his arms were struggling with Constable Lisson. He didn’t see any punching either from his friend Mr. Hamilton or Constable Lisson nor did he hear Constable Lisson say anything about anyone obstructing or interfering in an arrest or even that anyone was under arrest. He did hear Constable Lisson tell Constable Talloden she should call for back-up and get her pepper spray. Subsequently she was behind all of them using her pepper spray. Throughout he had no contact with Constable Talloden. He swore he had not been in a headlock.

Except for seeing her briefly on the other side of the barrier when she got out of the vehicle until after she used her pepper spray, he did not see her do anything. He did not see her strike anyone’s knee or elbow, indeed he testified she never touched anyone before using the pepper spray. Shortly after they were sprayed, other police officers arrived. [ 49 ] In cross-examination by other defence counsel, Mr. Tysdal said that Constable Lisson never responded to any of their pleas that they were all friends and just playing around. He also reiterated that after Mr. Walliser was pushed off Mr.

Hamilton by Constable Lisson, he fell backwards and he doesn’t know what happened to him after that. As far as he can recall Mr. Walliser was not involved from that moment on. [ 50 ] In cross-examination by the Crown, Mr. Tysdal agreed that he knew that Constables Lisson and Talloden were police officers but that neither of them yelled “police officers, stop fighting” nor did Constable Lisson ever yell “stop, you’re under arrest”. Indeed until he asked his partner to call for back-up and use the pepper spray he hadn’t said anything. Mr.

Tysdal said his intention throughout was to defuse the situation, to stop Constable Lisson from grappling with his friend Mr. Hamilton. He felt he was trying to stop the situation from getting out of hand. He does not believe that Constable Talloden grabbed him and he continued to deny in cross-examination that he ever pushed her or touched her. He testified that he didn’t know why he is accused of that as he was neither forceful or malicious in anything he did and he reiterated that he never saw her use any knee or elbow blows to anyone, nor did he see any punches thrown. [ 51 ] Mr.

Hamilton also testified and indicated that he had about ten drinks at Lydia’s and Bud’s and was feeling the effects of the alcohol. He recalls walking down the Broadway Bridge, all four of them in a jovial mood. He recalls his friend Mr. Walliser in his karate gi goofing around, practicing his karate moves and upon hearing footsteps, seeing Mr. Walliser run towards them, smiling. He watched Mr. Walliser bump into his friends Mr. Tysdal and Mr. Nickel, run through them and then Mr. Hamilton ran back towards Mr. Walliser. They grappled and they went down to the ground.

He says they were horsing around and were having a friendly tussle. He says they were grappling on the ground when all of a sudden someone was on him hard. His head was pinned to the ground and he couldn’t move. He was face down. At that time he didn’t know who was on top of him. He had heard nothing before this happened. He did not know that there was a policeman there. He struggled to get up for about five or ten seconds and as he was finally getting up a fist came at him. He turned his head and took the fist on top of his head.

When he went to duck and punch back he saw a badge, so instead of punching he grabbed on as he was confused about what was happening. [ 52 ] He grabbed onto a hand that was swinging at him and turtled and got turned around sideways. The next thing he knew Constable Talloden was spraying him in the face with pepper spray. [ 53 ] He says he was just holding on trying to process what was happening.

His response to being pepper sprayed was to tell the officers “what the hell is going on, are you guys crazy?” He continued to hold onto Constable Lisson and all of a sudden was pulled over the wall and arrested. [ 54 ] He denies ever being choked by Mr. Walliser. He denies ever being struck by Mr. Walliser and he denies ever striking Mr. Walliser.

[ 55 ] He denied hearing anyone say “stop fighting, stop, police” or any words to that effect. Under cross-examination from the Crown he stuck to his story. He agreed that he had a bump on his head but believes that was from a blow by the officer. He indicates from his vantage point he never saw anyone push Mr. Walliser off him. All he knows was there was someone on him pushing him down to the ground and then punching at him. It was confusing and he had difficulty processing what was going on as it was happening very quickly and he agrees the alcohol may have affected his judgment and memory.

However, he only swung at the individual who hit him because that individual hit him first. As he was swinging he saw the badge and so he stopped swinging and held onto the officer trying to process what was happening. To him it just didn’t make sense. ANALYSIS [ 56 ] The Crown must prove as an element of all the offences charged against these individuals, that at the time of this scuffle, the police officer was engaged in the lawful execution of his duty. As well, the officer has to have grounds for the arrest and he must inform the person the reason for that arrest.

I have reviewed the cases provided to me by counsel. It is important to remember in Canada, as was stated in R. v. Mann [1] by our Supreme Court: Absent a law to the contrary, individuals are free to do as they please. By contrast, the police may act only to the extent that they are empowered to do so by law. [ 57 ] To cut to the chase, if I am not satisfied that Constable Lisson had reasonable grounds to physically intervene in the scuffle between Mr. Walliser and Mr. Hamilton, by pushing Mr. Walliser then he was not acting in the execution of his duties and these charges must fail. [ 58 ] Section 495(1) (

a) of the Criminal Code states that a police officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence or (

b) a police officer may arrest without a warrant a person he finds committing a criminal offence. [ 59 ] Before an arrest can be made by a peace officer, that officer must know that the arrestee has committed an offence. [2] In other words, the important thing to understand in looking at the power of arrest is that the police may only arrest when they have “reasonable grounds to believe” that the person has committed an offence. The leading case on the application of s. 495 is R. v.

Storrey . [3] The Supreme Court in that case stated that the purpose of s. 495 was to strike the appropriate balance between an individual’s right to liberty and the need for society to be protected from crime. Reasonable and probable grounds must be established to demonstrate the police were acting within their powers when they attempt a warrantless arrest. [ 60 ] In R. v. Grothein [4] the question of reasonable and probable grounds depends upon a bona fida s reasonable belief in a state of facts that, if true, justify the course taken.

In Storrey , supra, the Supreme Court indicated that reasonable grounds consist of two components; the subjective and the objective. A police officer must personally believe, on reasonable grounds, that the accused has committed the offence in question. In addition, however, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person standing in the shoes of a police officer would have believed that reasonable and probable grounds exist to make the arrest. [ 61 ] In this case before me the police officer moved to intervene physically.

That intervention must be based on reasonable and probable grounds for me to determine that he was acting in the execution of his duty. [ 62 ] The officer grounded his actions in the belief that he was witnessing a serious aggressive assault. He said he had seen what he described as a spear tackle and punching motions. He stated that up until the time he leaned over the barrier and saw Mr. Walliser choking Mr. Hamilton he was not sure if what he was observing was a criminal assault or not.

[ 63 ] It was the choking that convinced him he was witnessing an assault and that he had a duty to act in spite of being told this was play fight between friends. [ 64 ] The Crown has not satisfied me that Mr. Walliser was choking Mr. Hamilton. I do not accept that the police officer saw this.

The reasons I did not accept this evidence are: 1) in spite of the action being the raison d ’être of what follows, there is no mention of it in the officer’s notes; no mention of it in his police report; and the first time it is disclosed to anyone was when he testified on the stand at trial; 2) it was not observed by Constable Talloden who said she was looking over the barrier at the same time, nor was it in her notes or her police report; 3) given his near instantaneous arrival on the scene Constable Lisson suggests that Mr. Walliser went from striking at Mr.

Hamilton to choking him very quickly; I am dubious that Mr. Hamilton had time to turn red; and 4) none of the other witnesses, including Mr. Hamilton himself, said there was any choking. [ 65 ] On all of the evidence I cannot say that I am satisfied this happened. [ 66 ] The accused individuals testified and I am, in determining if the Crown has proven its case beyond a reasonable doubt, applying the approach developed by our Court of Appeal in R. v. McKenzie [5] and the Supreme Court of Canada in R. v. W.(D.) . [6] I believe the testimony of the accused - all of them.

That being the case I have determined that: 1) no assault was taking place between Mr. Walliser and Mr. Hamilton. I have also determined that Constable Lisson was told that this was a play fight, that these were friends and they were horsing around; 2) that there was no choking going on and that the two of them were rolling around grappling on the sidewalk; 3) as a result, Constable Lisson had no reasonable grounds to physically intervene; 4) Mr. Walliser, probably did not push Constable Lisson, but if he did it was only because Constable Lisson aggressively pushed him first.

There were no reasonable grounds to arrest Mr. Walliser; 5) Mr. Hamilton immediately told Constable Lisson that he was not being assaulted, that they were friends and just fooling around. In spite of that Constable Lisson pushed Mr. Hamilton out of the way in an attempt to get at Mr. Walliser. Any reaction that Mr. Hamilton may have made he was justified in making. There were no reasonable grounds to arrest Mr. Hamilton for assaulting a police officer; and 6) Mr. Tysdal was merely preventing Constable Lisson from getting at his friend Mr.

Hamilton as he testified things were getting out of hand, therefore there was no obstruction of the police officer as he was not acting in the execution of his duty nor did Mr. Tysdal assault Constable Lisson. [ 67 ] Further I have determined it would be unsafe to convict anyone based upon the evidence of Constable Talloden who gave confusing and contradictory evidence that was not supported, either by her partner or any of the others who were there. In particular I

accept the evidence of Mr. Nickel who observed the whole incident and testified that Constable Talloden was not involved until she usedher pepper spray and that she did not get pushed or struck or assaulted nor did she do any of the things that she testified that she did. Conclusion [68] I am finding all of the accused not guilty of all of the charges. The evidence of Constable Lisson and Constable Talloden didnot convince me beyond a reasonable doubt that they had reasonable grounds to arrest anyone. There was no obstruction.

Any physicalcontact between the firefighters and Constable Lisson were at Constable Lisson’s instigation and he was not justified in using any force against them as he was not justified in intervening in the first place or arresting anyone. He was not in the execution ofhis duty. [69] All charges against all accused are dismissed. __________________________ B.M. Singer, J [1] [2004] 3 S.C.R. [2] R. v. Klimchuk (1991), (BC CA), 67 C.C.C. (3d) 385 (B.C.C.A.) [3] (1990), (SCC), 1 S.C.R. 241 [4] 2001 SKCA 116 [5] (1996), (SK CA), 141 Sask. R. 221 [6] (1991), (SCC), 1 S.C.R. 742