R. v. Alexander Date:, 2012 BCPC 108

Citation: R. v. Alexander Date: 20120404 2012 BCPC 0108 File No: 91367-2 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN ARTHUR ALEXANDER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. CLEAVELEY Counsel for the Crown: Mr. T. Livingston Appearing on his own behalf: Mr. B. Alexander Place of Hearing: Kamloops, B.C.

Dates of Hearing: December 2, 5, 6, 15, 20, 2011; January 23, 24 and February 8, 2012 Date of Judgment: April 4, 2012 INTRODUCTION: [ 1 ] Brian Arthur Alexander is charged that on November 4, 2010 at Kamloops, British Columbia, he did wilfully obstruct peace officers, Constables Rose, Thorson and Edinger in the execution of their duty, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] These Reasons for Judgment will deal with Mr. Alexander’s claims that his rights as contained in ss. 7, 10, and 11(

b) of the Charter of Rights and Freedoms have been violated and that pursuant to s. 24(1) of the Charter a stay of proceedings should be ordered, and whether the Crown has established, beyond a reasonable doubt, the substantive offence of obstruction. [ 3 ] The critical issue in both Mr. Alexander’s Charter applications and the substantive offence is the credibility and reliability of his evidence. [ 4 ] In these Reasons I will summarize the evidence led by the Crown and a 911 recording. I will set out, in detail, Mr. Alexander’s evidence, make findings relating to credibility and reliability, and then analyze the Charter applications and the substantive offence.

SUMMARY OF THE EVIDENCE: Crown Evidence and 911 Recording: [ 5 ] As to the events which led to the substantive charge, the Crown called as witnesses Constables Rose, Thorson, Edinger, and Jeff Griffiths, a tow truck driver. In addition, the Crown also called Constable Leckie, who, at the detachment, arrested Mr. Alexander for public mischief and provided Mr. Alexander with his Charter of Rights warnings.

[ 6 ] The evidence discloses that on November 4, 2010, at approximately 9:54 a.m., Mr. Alexander was driving his motor vehicle in excess of 40 km/hr over the posted speed limit. Constable Rose, who was operating radar, targeted Mr. Alexander’s vehicle, activated his emergency lights on his unmarked police car, and Mr. Alexander pulled over to the side of the road and stopped. [ 7 ] Constable Rose, who was in his standard uniform, walked to the driver’s side of Mr. Alexander’s vehicle and saw that the driver’s side window was rolled up, but for a two to three inch opening. Constable Rose asked Mr.

Alexander to roll the window down, but he refused. [ 8 ] Constable Rose also saw a video camera on the dashboard. It was pointed in his direction. [ 9 ] Mr. Alexander, after being requested to do so, provided his driver’s licence and registration. [ 10 ] Constable Rose told Mr. Alexander that he had been stopped for excessive speeding. Constable Rose returned to his police car and completed a violation ticket and a vehicle impound document. He requested, through his dispatch operator, that a tow truck be sent to his location. [ 11 ] Constable Rose returned to Mr.

Alexander’s vehicle, and through the window opening, served both the violation ticket and the vehicle impound document. He told Mr. Alexander that his vehicle would be impounded for seven days and that once the tow truck arrived, it would be towed. [ 12 ] Constable Rose returned to his vehicle, and while waiting for the tow truck, made some file notes. [ 13 ] Approximately 15 minutes later the tow truck arrived. Constable Rose explained the situation to the tow truck driver, Mr. Griffiths. [ 14 ] Constable Rose returned to Mr. Alexander’s vehicle, and Mr.

Alexander told him that he did not believe that he was a peace officer. Mr. Alexander also said that he had no intention of giving up his vehicle. [ 15 ] Constable Rose warned Mr. Alexander about the consequences of not complying with his directions and the possibility of an obstruction charge. [ 16 ] In their discussions, Mr. Alexander requested a business card from Constable Rose, but he did not have one in his possession. At some point in their discussions, Constable Rose identified himself to Mr.

Alexander as a member of the R.C.M.P. [ 17 ] Constable Rose returned to his police car and when making more notes, was told by his dispatch operator, that Mr. Alexander had phoned 911 and reported that Constable Rose had assaulted him. Constable Rose saw Mr. Alexander on his cellular phone. [ 18 ] Constable Rose requested back-up, and Constable Thorson responded. Upon arrival, Constable Thorson activated the emergency lights on his fully marked police vehicle. He was in full police uniform. [ 19 ] Constable Rose briefed Constable Thorson, who then spoke to Mr. Alexander. Constable Thorson asked Mr.

Alexander to get out of his vehicle, but he refused. Furthermore, Mr. Alexander refused to believe that Constables Rose and Thorson were police officers. Mr. Alexander asked Constable Thorson for identification, and was provided with a business card. [ 20 ] Constable Thorson again asked Mr. Alexander to get out of his vehicle, but Mr. Alexander told him that the “stop” was unjustified. Constable Thorson warned Mr. Alexander that he must comply with their directions or he could be arrested. [ 21 ] Constable Thorson saw the video camera in Mr. Alexander’s vehicle.

It was either on the dashboard or in the cup holder. Mr. Alexander also told him that he was videotaping. [ 22 ] On the 911 recording which was admitted into evidence, Mr. Alexander can be heard telling the operator “I would let them write me a ticket, but they’re taking my property. So if they wanna write me a ticket go ahead, but don’t seize my property.” [ 23 ] Constable Rose also requested a supervisor attend their location.

Constable Edinger, the North Shore Supervisor, arrived at approximately 10:25 a.m. in a fully marked police vehicle. [ 24 ] Constable Edinger spoke with Constable Thorson, who briefed him of the situation. He then spoke to Constable Rose, who confirmed the events. [ 25 ] Constable Edinger, who was in full uniform, walked to the driver’s side of Mr. Alexander’s vehicle. On the 911 recording, there is a knocking sound, which suggests that Constable Edinger rapped on Mr. Alexander’s window. Constable Edinger identified himself and told Mr. Alexander to get out of his vehicle. He explained to Mr.

Alexander that the vehicle was going to be impounded and that it was not safe for him to be inside when it was towed. [ 26 ] Constable Edinger was met with the same type of resistance as experienced by Constables Rose and Thorson. He warned Mr. Alexander that if he did not comply, he was going to be arrested. When Mr. Alexander failed to get out of his vehicle, Constable Edinger told him that he was under arrest for obstructing a police officer, and that if he did not get out of his vehicle he would be pulled out. Mr.

Alexander did not comply with this direction and Constable Edinger took out his service baton, extended it and held it up. Mr. Alexander unlocked the door and got out of his vehicle. [ 27 ] It was only a matter of minutes from Constable Edinger’s arrival at the roadside to Mr. Alexander’s arrest. [ 28 ] Constable Edinger took hold of Mr. Alexander’s right arm and told him to go down to the ground. Mr. Alexander was taken to the ground by the constables and handcuffed.

[ 29 ] After being stood up, Mr. Alexander was told, by one of the constables, that he had the right to retain and instruct counsel, in private, without delay. Mr. Alexander was escorted to Constable Rose’s police car, where he was searched and told his police warning. He was then placed inside the police car and at 10:33 a.m., Constable Rose, with Mr. Alexander, left the roadside and drove to the R.C.M.P. detachment. [ 30 ] Prior to leaving the scene Constable Rose took possession of the video camera and he took it to the detachment, where it was placed on the counter.

Constable Leckie turned on the video camera to make sure it was working before it was placed with Mr. Alexander’s other personal belongings. Through the viewfinder Constable Rose saw a picture of the driver’s side window. Constable Rose testified that he never operated the camera and as far as he knew, nothing was erased from the camera. [ 31 ] Constable Thorson testified that he never had the video camera in his possession nor did he see any of the other members with the camera. [ 32 ] Constable Edinger testified that at the door of Mr.

Alexander’s vehicle, he saw the video camera, and that it was pointed at him. Later, he saw it on the hood of a police car. He went on to say that he may have touched it, but otherwise he had nothing to do with the camera. [ 33 ] Throughout their dealings with Mr. Alexander at the scene, the constables were repeatedly told by Mr. Alexander that he was a “freeman”, a “common law man”, he was in “Common Law”, he did not want “joinder”, and that he did not “consent”. [ 34 ] In the 911 recording Mr. Alexander also said that the Motor Vehicle Act “did not apply to me as a common law man”.

He also said that Constable Rose was “assaulting me” and “he cannot take my vehicle”. Mr. Alexander told Constable Thorson that there was a pay structure for detaining him, which would result in charges of a hundred dollars per half hour. [ 35 ] Mr. Griffiths, the tow truck driver, confirmed that after he arrived, he was unable to tow Mr. Alexander’s vehicle because he would not get out of vehicle. The three constables were trying to persuade Mr. Alexander to get out, but he would not. [ 36 ] After Mr. Alexander was arrested and handcuffed, he looked at Mr.

Griffiths and said, “I don’t know what is going on, I don’t understand this.” Mr. Griffiths responded, “You’re a freakin’ idiot.” [ 37 ] Mr. Griffiths removed the video camera from the dashboard of Mr. Alexander’s vehicle and gave it to one of the three constables. Mr. Griffiths did not notice if the video camera was on or off. [ 38 ] At the detachment, Constable Leckie was assigned to read verbatim to Mr. Alexander the reason for his arrest, which Constable Leckie understood to be obstructing a police officer, the Charter warning and Police Caution. [ 39 ] Following the conclusion of a voir dire , I ruled Mr.

Alexander’s responses to his Charter warning and Police Caution admissible at trial. [ 40 ] The conversation between Constable Leckie and Mr. Alexander began just before 10:53 a.m. and ended at 11:12 a.m. [ 41 ] At almost the outset of the statement, Mr. Alexander said, “I do not consent to this, and I waive all benefits without prejudice. I am a free man under common law, and this all is against my rights as a common law man.” [ 42 ] When Constable Leckie asked Mr. Alexander if he understood what he was arrested for Mr. Alexander said words to the effect that he did not understand anything or why. Mr.

Alexander went on to say that he was a freeman and he has rights under the common law which he was trying to retain. [ 43 ] Mr. Alexander also said, “I don’t need to speak to a lawyer. I understand my rights. Why don’t you answer any of my questions?” [ 44 ] Constable Leckie arrested Mr. Alexander for public mischief. When asked if he understood Mr. Alexander responded, “No I don’t understand that”. Mr. Alexander repeated this and when asked if he understood the words, he said, “No I don’t understand”. Mr. Alexander repeated this several times. [ 45 ] Constable Leckie read to Mr.

Alexander his full Charter warning. Mr. Alexander said that he did not understand. Mr. Alexander then went on to say, “No that – that doesn’t apply to me, as a freeman. The Charter ... my the Magna Carta , then common law applies to me”. [ 46 ] Constable Leckie asked Mr. Alexander if he wished to contact a lawyer. In response, Mr. Alexander said, “No I don’t”. [ 47 ] Constable Leckie told Mr. Alexander of his police caution and asked if he understood. Mr. Alexander said, “No I don’t understand”.

He went on to say that the words were not plain English and that they are manipulative. [ 48 ] Later, the following exchange took place between Corporal Babin and Mr. Alexander: Cpl B: Yeah good. You-you can ... you can shut your mouth now and not say a thing to us. BA: I’m just trying to ask this gentleman questions, but he wouldn’t answer questions. They used force against me and took my vehicle, you know. Cpl B: Why did he do that? BA: I don’t know that’s why I want to ask him some questions.

Cpl B: So you have no idea why you’ve been arrested? BA: No I don’t. [ 49 ] Constable Leckie asked Mr. Alexander again if he wanted to speak to a lawyer and he replied: BA: I don’t need to speak to a lawyer ‘cause those lawyer ... laws don’t apply to me. I’m a common man. [ 50 ] This was followed by the Supplemental Charter Warning and answer: JL: Mr. ALEXANDER. You have the right to a reasonable opportunity to contact counsel, and I mean by counsel, like a lawyer okay.

I’m obliged not to take a statement from you or ask you to participate in any process which could provide incriminating evidence until you are certain about whether you wish to exercise this right, do you understand that? BA: Not really, they’re kinda weird words like. [ 51 ] Within the conversation Mr. Alexander requested that he speak to his counsel, Rasheed, an individual who is not a lawyer. Mr. Alexander only knew Rasheed’s first name and that he operated a business in Kamloops. In the ensuing discussion Constable Leckie offered Rasheed’s business number to Mr.

Alexander and he replied: BA: I don’t know how long you guys intend to detain me here, and maybe if you give me some of that information, maybe I could give some of the information to you and be helpful to you, and until then I’m ... (indecipherable). [ 52 ] At the conclusion of the conversation, Mr. Alexander said the following: BA: You don’t have the authority over over people, but when they try and ah claim my rights as common law jurisdiction, I have that right, and that’s all I’m asking so if you wanna ... I’m done here. Constable Leckie testified that when Mr.

Alexander was brought into the cell block area, to the best of her recollection, a video camera accompanied him and it was handed to her. Constable Leckie saw that there was a light “on” in the video camera. Her general practice is to turn off electrical devices in front of the prisoner. Constable Leckie believed that she handed the video camera to the guard and asked him if he knew how to turn it off. Constable Leckie said that she did not view anything on the camera, she was just trying to turn it off. EVIDENCE OF MR. ALEXANDER: [ 53 ] Mr.

Alexander confirmed the details of driving and being pulled over in response to emergency lights. Mr. Alexander testified that a stranger got out of the unmarked car. He was wearing a uniform which resembled that of a peace officer. He was not wearing a name tag and Mr. Alexander could not determine who this person was. [ 54 ] Mr. Alexander was aware of several instances of people impersonating peace officers. Mr. Alexander said that he is diligent in learning who they are and their name, in case of “acts of tort”.

He is also aware of cases where peace officers have assaulted people, and he was concerned about “acts of tort”. [ 55 ] Mr. Alexander testified that the member got out of the car and when this individual asked for his driver’s licence and registration, he gave it to him because he feared that he would be arrested if he asked any questions. He felt threatened “right off the bat” and under duress. Mr. Alexander immediately gave “his person’s information without question”. Mr.

Alexander’s understanding is that “a driver’s licence is a trust and he is represented by a legal fiction and is not a flesh and blood man”. [ 56 ] The officer, or who appeared to be an officer, took his information, but told him that his personal property would be seized for seven days, “arbitrarily on the side of the road”. Mr. Alexander felt that the loss of his property would be a breach of his rights. [ 57 ] When the officer went back to his cruiser, Mr. Alexander got out his video camera as “he wanted to videotape it”. [ 58 ] When this person came back, he told Mr.

Alexander that he should get out of his vehicle, a tow truck was coming, and that he was going to have to surrender his automobile. Mr. Alexander asked this person to identify himself. He did not see a name tag and he wanted to ask him about the legislation, his authority, and what recourse he had. He did not recognize him as a member of the R.C.M.P. because he was not wearing a name tag, he refused to identify himself, and to provide identification. [ 59 ] Mr. Alexander said that he refused to accept the ticket until the officer answered his questions. [ 60 ] The officer was insistent that Mr.

Alexander get out of his vehicle. If he did not, he would be removed from the vehicle and arrested. Because of his fear and concern for his safety, Mr. Alexander locked the doors and rolled the window up, most of the way. Mr. Alexander did not trust the officer and he felt threatened. [ 61 ] The officer shoved the papers through the window opening and walked away. He refused to answer Mr. Alexander’s questions. [ 62 ] Mr. Alexander felt that he was being intimidated and assaulted verbally. [ 63 ] After serving the papers, the officer made another threat that if Mr.

Alexander did not get out of his vehicle, he would be removed. Mr. Alexander felt that he was being assaulted. [ 64 ] Mr. Alexander, who knew 911 was available for emergencies, called the number because he feared for his safety. He also felt that the police officer was acting unlawfully, there was no jurisdiction established.

[ 65 ] Mr. Alexander said that he called 911 for two reasons, to establish if the “guy” standing out there and threatening him was a peace officer, and he wanted another officer to attend. He wanted an officer who was going to act “more according to the Queen’s rules and like a public servant trustee”. [ 66 ] Mr. Alexander wanted to talk things out and arrive at a “reasonable understanding of the circumstances” and perhaps have a habeas corpus on the side of the road. [ 67 ] Mr. Alexander saw the tow truck arrive and Constable Rose speak to the tow truck driver. [ 68 ] Mr.

Alexander said that the other member, who we know to be Constable Thorson, arrived, and he provided Mr. Alexander with his identification. [ 69 ] Mr. Alexander said that at this point, it became a stand-off. He also described it as a “conditional acceptance”. Mr. Alexander wanted to know who was the first officer, what was his authority, and when was this law (the vehicle impoundment provisions) passed. [ 70 ] Constable Thorson appealed to him to leave his vehicle, but Mr. Alexander was not satisfied with the actions of the first officer.

Consequently, he asked the 911 operator, to arrange for a supervisor to attend for the purpose of de-escalating the situation. [ 71 ] Mr. Alexander said that even though Constable Thorson was present, he still felt intimidated. [ 72 ] The supervisor, Constable Edinger arrived and after speaking to Constables Rose and Thorson, he came to the side of Mr. Alexander’s vehicle. Within seconds he demanded that Mr. Alexander get out of the vehicle. [ 73 ] In response, Mr. Alexander asked Constable Edinger who he was and for his identification. Constable Edinger told him his name and said that he had no identification.

It was in his car. Mr. Alexander testified that he wanted “to establish who this guy was”. [ 74 ] Mr. Alexander described Constable Edinger as outspoken, loud, insistent, and a bully. In his words, Constable Edinger was “off the handle”. [ 75 ] Mr. Alexander testified that at this point, he was even more concerned for his safety. [ 76 ] Constable Edinger told him that if he did not get out of his vehicle right away, he would be arrested. Mr.

Alexander testified that he did not clearly hear Constable Edinger, and he asked, “Do you mean that if I get out of here, if I leave this automobile right now or this vehicle right now, you not going to place me under arrest?” In response to his question, Constable Edinger told him that he was not negotiating and that he was under arrest. Mr. Alexander also testified that he realized that it was a lost cause and he was more than willing to give up. [ 77 ] Constable Edinger pulled out his baton and hit the driver’s side window two to three times. At this point, Mr. Alexander decided to get out of his vehicle.

He opened the door and was pulled to the ground by the officers and handcuffed. Mr. Alexander was taken to one of the police vehicles where he was searched. [ 78 ] Mr. Alexander also testified that “during all of this I, ah, realize that they work off of other people’s reactions, and so I was making an attempt to be as cool and calm on the outside as possible as to not, you know to make it seem like I was crazy or on drugs or unreasonable or, you know I was trying to be calm and conscious as much as possible”. [ 79 ] Mr. Alexander testified that he had his video camera rolling the whole time.

It was operating from when Constable Rose arrived, or when the tow truck arrived, or at some point he “fired up the camera”. It was sitting on the dash and recording everything. Mr. Alexander said that he told the guys that they were all being recorded. Mr. Alexander also testified that he remained on the phone with the 911 operator because he was concerned that his video camera would be tampered with. [ 80 ] Mr. Alexander recalled one of the officers saying something like you have the right to a lawyer or duty counsel and the right to remain silent. Mr.

Alexander testified that he did not understand what they were saying, it was not the full warning, but a short statement. No one asked him if he understood. [ 81 ] Mr. Alexander testified that his hand was being twisted, he “was under assault-physical assault”, and he could not comprehend what they were saying to him. They threw him over the back of the car and then he was handcuffed. He was then placed in the rear of a police car. The officers attempted to ask him a number of questions, but he asserted his right to silence. At that point, they left him alone. [ 82 ] Mr.

Alexander testified that he understood the rights given to him under the Charter , because he “has seen it in movies and stuff like that.” But in this case, it was not read to him. [ 83 ] At that point, Constable Rose drove him to the detachment. [ 84 ] At the detachment, Mr. Alexander said that the “heat of the battle was over”. Although, he was still concerned about his safety, because he was in the “enemy’s lair”. He was trying to be “most cooperative as possible”. He was not trying to obstruct justice and was trying to understand his rights. [ 85 ] Mr.

Alexander testified that his video camera was not in the booking area when he was brought into the detachment. [ 86 ] Mr. Alexander said that Constable Leckie read some stuff which he said was his Charter of Rights . He never recognized some of the key words which she used. The confusion in Mr. Alexander’s mind revolved around the use of the words “lawyer” and “legal”. These words were not in the Charter that he knows. The Charter as he understands it, states that you are entitled to “counsel”. Mr. Alexander knew he had the right to counsel. It does not say legal counsel or a lawyer.

[ 87 ] Mr. Alexander asked to call his counsel, someone who could assist him, but they refused. [ 88 ] Mr. Alexander testified that for the most part, he understood what Constable Leckie read to him, “but I didn’t understand and I didn’t want to say that I understood, when I didn’t understand”. [ 89 ] Mr. Alexander also said that he was confused because he was arrested for mischief, and there was not one word about being arrested for obstruction. [ 90 ] Mr.

Alexander also said that when Constable Leckie told him that his rights were guaranteed under the Criminal Code this really confused him because he knew that the Charter is not within the Criminal Code . [ 91 ] During the interview process, Constable Rose was present. Mr. Alexander attempted to ask Constable Rose a question or two, to get him to identify himself. But, Constable Rose was again being belligerent by standing there, “not making eye contact, and playing like he was deaf, like he could not hear anything, wouldn’t say a word”. [ 92 ] When being booked out, Mr.

Alexander saw his video camera for the first time. He went to turn the camera on, but the officers would not allow him to do this. He turned the power button off and put the camera down. A few minutes after Mr. Alexander left the R.C.M.P. detachment he saw Constable Rose, and took some video footage of him leaving the building and getting into his police car. [ 93 ] In cross-examination, Mr. Alexander acknowledged that, for the most part, the 911 audio recording accurately captures his dealings with the police at the scene.

The recording picks up all of his voice, but there are other voices which are indecipherable. [ 94 ] Mr. Alexander testified that he had dealings with Constable Rose for approximately 5 to 10 minutes before he called 911. This interaction was also captured on Mr. Alexander’s video camera. [ 95 ] In cross-examination, Mr. Alexander acknowledged that for the most part, Constable Rose was dressed as a police officer, but to him, it does not constitute a full police uniform unless he is wearing his name tag. Mr.

Alexander also testified that he considered the manner in which Constable Rose served the Motor Vehicle Act documents an assault. [ 96 ] This incident occurred close to Halloween and Mr. Alexander had heard of someone getting into trouble by dressing up as an R.C.M.P. officer. Mr. Alexander was concerned that the person who approached his vehicle and asked for his driver’s licence and registration was an impersonator.

He had heard of many instances where an impersonator has pulled over a motorist and asked for their driver’s licence and registration, particularly in the Lower Mainland. [ 97 ] In cross-examination the following exchange took place: Q: You had no intention of getting out of your vehicle did you? A: I wouldn’t say it that way, I would say I was trying to find a way that I wouldn’t have to get out of my vehicle and I was trying to find out if this new law, that no one had really been put under, what the stipulations were, I was trying to ask ... [ 98 ] After Mr.

Alexander was confronted with his statement to the 911 operator, wherein he said that there was no way this person was going to confiscate his property, he said: A: Under my common law rights, I was trying to ascertain my rights and I had the right to keep my vehicle and so, I would have to say that, you know, that in the heat of the moment I didn’t feel like I would want to give it up as a principle of law and of a principle of them breaching my rights and I felt under

section 39 that I had the right not to do it. [ 99 ] It was then suggested to Mr. Alexander that he felt that the Motor Vehicle Act did not apply to him. He responded, “um under this particular law, because it breached my Charter rights, I would say that law did not apply to me and overall as per

section 32 of the Charter of Rights , it’s plain and simple that those laws don’t apply to flesh and blood men and that is how I was identifying myself and not a legal fiction”. [ 100 ] Mr. Alexander explained that the R.C.M.P. cannot impound a vehicle without consent because “statute law is based on contract and contract is based on consent and when there is a breach of contract then that makes it pretty much void, and when that also, that statute law goes against supreme law, which is the constitution, then again it has no force and effect and people have rights”. [ 101 ] It was suggested to Mr.

Alexander that he had no intention of surrendering his vehicle, no matter what the legislation said. Mr. Alexander replied, “I was trying to do as much as I could not to”. Mr. Alexander also said, “... it doesn’t apply to me, it applies to my person”. [ 102 ] In terms of the Motor Vehicle Act , Mr. Alexander said, “the legislation that they were enforcing went against my rights and went against my inherent rights of liberty”. As a common law man, the legislation did not apply to him because, the legislation applies to the legal fiction and not the man and it says that in s. 32 of the Charter of Rights .

The legislation went against his common law rights, his inherent rights, Charter of Rights , and under the Criminal Code he has the ability to ignore legislation that is inconsistent with the Charter of Rights and the true law. In Mr. Alexander’s words, “he (Constable Rose) presumed me to be guilty on the spot”. [ 103 ] Mr. Alexander agreed with Crown counsel that he was not going to surrender his vehicle because it was under a “claim of right”. [ 104 ] Mr.

Alexander said that he may have surrendered his vehicle had there been some more appropriate discussions between himself and the police and proper identification presented to him. [ 105 ] Mr. Alexander testified that he wanted to discuss the matter with the officers to find a way out of him giving up his vehicle.

[106] Mr. Alexander also testified that in response to Constable Thorson’s request that he get out his vehicle, he made a “conditionalacceptance” and he was waiting for a supervisor. He would not get out of his vehicle for Constable Rose because he never identifiedhimself and never answered his questions. [107] Mr. Alexander was cross-examined regarding his right to counsel and whether he wanted to speak to a lawyer. Mr. Alexandersaid, “depends what you call a lawyer, I wouldn’t speak to a lawyer from the law society ...”. Later, Mr.

Alexander said, “I wanted tospeak to counsel, but I did not want to speak to a lawyer who was accredited by the bar society”. [108] Mr. Alexander also said that he understood that he had the right to speak to counsel, the Charter never said anything about hisright to speak to a lawyer. [109] Mr. Alexander testified that after being released by the police, he checked the video camera and it was “blank”. Mr. Alexanderassumed that there was video footage on the camera because the record light had been on and Constable Rose saw some footage on thecamera. [110] Mr.

Alexander considered taking the camera to an expert to determine if a file had been deleted, but he did not. Mr. Alexanderalso said that the camera has since been lost or stolen. [111] Mr. Alexander agreed with Crown Counsel, that he understood the Charter, but he did not know it word for word. He wasconfused about the wording which Constable Leckie used. Cell Block Video: [112] The cell block video, which does not have an audio component, shows Mr. Alexander and Constable Rose arriving at the bookin counter at approximately 10:45 a.m. It depicts the approximate 20 minute discussion between Mr.

Alexander, Constable Leckie andCorporal Babin. Constable Rose was also present. During the video other constables and a guard can be seen coming and going. At11:08 a.m. Mr. Alexander is lodged in cells. At 11:13 a.m. Constable Rose places some of Mr. Alexander’s possessions, including thevideo camera, on the counter. The video shows Constables Rose and Leckie and a guard handling the video camera. At the end of thevideo, the guard places all of Mr. Alexander’s possessions in a black bag and takes them away. ANALYSIS Credibility and Reliability: [113] In R. v. W. (D.) (SCC), [1991] 1 S.C.R. 742 (S.C.C.), Mr.

Justice Cory said the following in relation toconflicting versions of events: ...A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [114] In accordance with this instruction, my analysis will begin with an assessment of the credibility and reliability of Mr.Alexander’s evidence. [115] There are two distinct aspects to Mr. Alexander’s evidence.

The first is that his evidence relating to the events at roadside is, butfor several conflicts, similar to the evidence of Constables Rose, Thorson, Edinger, and Mr. Griffiths, the tow truck driver. [116] By this I mean the evidence relating to Mr. Alexander being stopped by Constable Rose, the reason for the stop, the service ofthe violation ticket and impoundment notice, the consequences of the impoundment notice, Mr. Alexander’s continued refusal to get outof his vehicle, the repeated warnings Mr.

Alexander received regarding the consequences of failing to comply with the directions givento him by the peace officers, his dealings with Constables Thorson and Edinger, and his arrest. [117] The second, and more problematic aspect for Mr. Alexander when assessing his credibility and reliability, are the extremes inhis evidence. For example, Mr. Alexander’s evidence that he could not or was not able to identify Constable Rose as a peace officer isnonsense. It would have been patently obvious to any reasonable person, when considering all the circumstances, that Mr.

Alexanderwas stopped by a member of the R.C.M.P. Mr. Alexander’s evidence that Constable Rose may have been an impersonator and that hewas concerned about “acts of tort” is sheer gibberish. There is also no objective basis for Mr. Alexander’s claims that he feared arrest(other than for obstruction), he felt threatened, and that he was under duress. This was an routine traffic stop made difficult by Mr.Alexander. I also do not believe that Constable Rose told Mr. Alexander that his vehicle was being seized “arbitrarily”. Constable Rosewas acting in accordance with the Motor Vehicle Act.

Referring to the “standoff”, Mr. Alexander said that there was a “conditionalacceptance”. If by the use of this expression, Mr. Alexander is implying that the constables acknowledged his point of view, he isseriously mistaken. Mr. Alexander told Mr. Griffiths that he did not know or understand the reason why he was stopped. In the earlier911 recording, Mr. Alexander told the operator he was stopped for a speeding offence, and he would accept a ticket, but he did not wanthis property seized. It was very apparent to Mr.

Griffiths, an independent objective witness, what was happening, and he used very bluntlanguage when he told Mr. Alexander that he did not accept his protestations. On this point, Mr. Alexander’s evidence is internallyinconsistent and untrue. [118] At the detachment, or as Mr. Alexander called it, the “enemy’s lair”, he continued to be difficult and deliberately obtuse. Mr.Alexander claimed he did not understand why he was arrested. This is contrary to Mr. Alexander’s earlier statement to the 911 operator.

Similarly, when Constable Leckie read to Mr. Alexander the police caution, he responded by saying he did not understand. This is inconsistent with Mr. Alexander’s earlier evidence. Not only did he understand the right to silence, he asserted it, and the constables respected his right. Mr. Alexander said that he was confused about Constable Leckie’s use of the words “lawyer” and “counsel”. I do not believe this. Mr. Alexander had been given a limited version of his right to counsel at the roadside, which he said he understood. This was simple game playing by Mr.

Alexander and is inconsistent with his evidence that he was trying to be “most cooperative as possible.” Mr. Alexander took a similar approach when Constable Leckie read to him the Supplemental Charter Warning. He said he did not really understand, the words were “kinda weird”. Not only did Constable Leckie use “counsel”, a word which Mr. Alexander said he understood, she also said “lawyer” in a comparative sense. Mr. Alexander was being disingenuous when he said he did not understand. [ 119 ] Also in the detachment, Mr. Alexander attempted to draw Constable Rose into the dispute.

In these difficult circumstances Constable Rose acted appropriately by not adding more fuel to the fire within Mr. Alexander. There was no basis for Mr. Alexander to assert that Constable Rose was being belligerent, when the reality of the situation is that he did nothing to antagonize Mr. Alexander. [ 120 ] Also when assessing Mr.

Alexander’s evidence, I must take into account his many claims that he was somehow protected or exempt from scrutiny by the police because he was a “freeman” or a “common law man”, who did not “consent” or want “joinder”, and that the laws did not apply to him because he is a “flesh and blood man”, the laws only apply to legal fictions or his person. Similarly, Mr. Alexander testified as to the genesis of statute law and how it is based on contract, which has its basis in consent. These two examples illustrate the extreme, and completely illogical evidence given by Mr. Alexander. [ 121 ] In his evidence, Mr.

Alexander testified that Constable Edinger hit his driver’s side window with his baton just before he got out of his vehicle. Mr. Alexander is mistaken on this point. Constable Edinger did knock on the window, but when he first approached Mr. Alexander’s vehicle. This is clear on the 911 recording. Mr. Alexander also claimed that he was thrown on the back of a police car and then handcuffed. These claims are contrary to the weight of the evidence. Mr. Alexander was handcuffed very quickly after he left his vehicle.

Also, I do not believe him when he says that he was thrown onto a police car. [ 122 ] There is a minor conflict in the evidence relating to whether Mr. Alexander was present when Constable Leckie dealt with the video camera in the detachment. The cell block video clearly shows that the video camera was brought in the cell block area by Constable Rose after Mr. Alexander was taken away to a jail cell. It was not in the booking in area when Mr. Alexander first appeared. Mr. Alexander’s evidence on this point is correct. Constable Leckie is wrong in her evidence that she dealt with the video camera in Mr.

Alexander’s presence. [ 123 ] In my view, nothing turns on Constable Leckie’s error. The crucial events in the detachment were audio recorded and the cell block video assists in explaining the other events. [ 124 ] Earlier in these Reasons I said that there were two aspects to Mr. Alexander’s evidence. As to the first aspect, or to put it another way, where there is support elsewhere in the evidence, I accept Mr. Alexander’s evidence. Here I am speaking of some of the events at roadside and his evidence relating to not seeing his video camera in the detachment until he was booked out. [ 125 ] Otherwise, Mr.

Alexander’s account of the events, including those at the detachment, is internally and externally inconsistent, mistaken, illogical, embellished, and not grounded in reality. This evidence cannot be relied upon in any sense and I completely reject it. [ 126 ] The evidence led by the Crown as to the events at the roadside was internally and externally consistent and I accept it without reservation. There is no reason to doubt this evidence. [ 127 ] Similarly, even though Constable Leckie was in error in respect to dealing with the video camera in the presence of Mr.

Alexander and her description of where the Charter of Rights and Freedoms is found (I will say more about this later), the Crown evidence as to the events in the detachment was again consistent and I accept it. [ 128 ] In light of these findings regarding credibility and reliability I will now consider the Charter applications and the substantive offence of obstruction. [ 129 ] In terms of the Charter applications, Mr. Alexander must establish a breach on the balance of probabilities. On the obstruction charge, the Crown must establish Mr. Alexander’s guilty beyond a reasonable doubt.

Section 7 – Lost Video Camera Footage: [ 130 ] Mr. Alexander asserts that the video camera footage of the events at the roadside was deleted by the police officers who handled his camera. Consequently, Mr. Alexander argues that his right to make full answer and defence has been impaired and that a stay of proceedings ought to be ordered. [ 131 ] The starting point on this issue is to determine what, if anything, Mr. Alexander videotaped. The evidence on this issue is not clear. To begin, Mr. Alexander was uncertain as to what point he began filming.

Was it when Constable Rose arrived at his door, when the tow truck arrived, or at some other point? I find it somewhat surprising that Mr. Alexander, who was suspicious of the police from the outset, cannot recall the exact time he began filming. After Mr. Alexander’s arrest, Mr. Griffiths turned the video camera over to one of the constables. This was likely Constable Rose, who took the video camera to the detachment and placed it on the booking area counter. [ 132 ] When Constable Leckie picked up the camera, it must have been “on”.

At some point in this sequence, Constable Rose saw through the video camera’s viewfinder, an image of the driver’s side window of Mr. Alexander’s vehicle. Constable Leckie wanted to turn the camera off, in accordance with her policy, and asked the guard for assistance in doing so. Afterwards, the video camera was placed with Mr. Alexander’s effects and returned to him later in the day when he was released. [ 133 ] Constable Rose testified that he never operated the camera and as far as he knew, nothing was erased from the camera.

Constable Thorson testified that he never had the video camera in his possession. Constable Edinger saw the camera on the hood of thepolice car, he may have touched it, but otherwise he had nothing to do with it. [134] After he was released by the police, Mr. Alexander checked the video camera and there was no recorded footage. Mr.Alexander testified that he assumed that there was video footage on the camera because the record light was “on” and Constable Rosesaw some footage on the camera. [135] Can I be satisfied on this evidence that Mr. Alexander videotaped the roadside interaction?

The answer is “no”. [136] In the course of the trial I did not hear any evidence as to how to operate the camera in order to record or how to delete arecording. [137] The fact that a light was activated, which would indicate that the camera was “on”, and Constable Rose saw an image of thedriver’s side window of Mr. Alexander’s vehicle, does not satisfy me that the events were recorded by Mr. Alexander. [138] As I said earlier in these Reasons, I am not prepared to accept Mr.

Alexander’s evidence, standing alone, that he was recordingwith the video camera. [139] Therefore, I am not prepared to find that there was a video recording of the roadside events. [140] I also heard from four police officers, who were challenged regarding their dealings with the video camera, and I am satisfiedthat they did not, inadvertently or otherwise, erase any recording from the video camera. [141] If I am wrong on these factual findings, and should have held that Mr.

Alexander recorded the roadside events and that thepolice were responsible for the evidence being lost, I would not have ordered a stay of proceedings. [142] A stay of proceedings, or a finding of an abuse of process, should only be granted in the rarest of cases. See R. v. B.(F.C.) (2000) 2000 NSCA 35 , 142 C.C.C. (3d) 540 (N.S.C.A.), leave to appeal to S.C.C. refused. [143] My reasoning in this regard is based on the body of evidence which I heard at trial. [144] Specifically, this includes the evidence of Constables Rose, Thorson, Edinger, Mr.

Griffiths, the tow truck driver, Mr.Alexander, and the 911 recording. As I said earlier, the Crown evidence and that of Mr. Alexander are generally consistent on theimportant events. The 911 recording is a very good audio transcript, despite some inaudible portions, of the events at roadside. [145] The cumulative effect of this evidence is that it establishes a very good record of the events at roadside. To put it another way,any video tape footage would not have added much to the picture. It must also be remembered that Mr. Alexander was unsure of whenhe began video recording the events. [146] To conclude, Mr.

Alexander has not established a breach of s. 7 of the Charter of Rights and Freedoms. The application isdismissed.

Section 10(b) – Breach of Right to Counsel: [147] At the roadside, Mr. Alexander was arrested for obstruction. The time was 10:25 a.m. After being handcuffed, Mr. Alexanderwas told that he had the right to retain and instruct counsel, in private, without delay. After being taken to a police car, Mr. Alexanderwas searched and told of his police warning. After being placed inside the police car, he and Constable Rose left for the detachment at10:33 a.m. [148] At the detachment, and just before 10:53 a.m., Constable Leckie began speaking with Mr. Alexander.

At 10:53 a.m., Mr.Alexander was arrested for public mischief. A 20 minute discussion took place between Constable Leckie and Mr. Alexander regardinghis Charter rights. Several times Corporal Babin interjected. [149] As I understand Mr.

Alexander’s application, he asserts that he was not read his full Charter rights at the roadside, he did notunderstand his rights, he was confused because he was initially arrested for obstruction, and then at the detachment, Constable Leckiearrested him for public mischief, no one explained the charges to him, he was not given the right to contact his counsel, Rasheed, andConstable Leckie confused him when she told him that his Charter of Rights were contained in the Criminal Code. [150] In R. v. Sinclair 2010 SCC 35 , [2010] S.C.J. No. 35 (S.C.C.), Chief Judge McLachlin, when discussing the purpose ofs. 10(

b) of the Charter wrote: 26 The purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law, butequally if not more important, to obtain advice as to how to exercise those rights": R. v. Manninen, (SCC), [1987] 1S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation ordecline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee's decision is wise; nor does it guard againstsubjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevantto that choice. 27

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee's rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until thedetainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless adetainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable

opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. [151] This instruction, and in particular the Tremblay decision, play a significant role in Mr. Alexander’s application. The otherimportant factor to be considered is Mr. Alexander’s evidence relating to his 10(

b) rights. [152] There can be no doubt that Mr. Alexander understood that he was arrested for obstruction. This was made clear by ConstablesRose, Thorson and Edinger. It can also be heard on the 911 recording. [153] Within minutes, Mr. Alexander was told his right to counsel and police warning. The right to counsel can be heard on the 911recording. In regards to the right to counsel, Mr. Alexander said it was not the full warning. However, he understood the rights whichwere given to him because he had seen it in the movies. The evidence of Constable Edinger and Mr.

Alexander confirm the policewarning. [154] It seems to me to be reasonable to conclude that at the roadside, Mr. Alexander understood both his right to counsel and his rightto silence. [155] Approximately 20 minutes later, Mr. Alexander was at the R.C.M.P. detachment. There can be no complaint about this periodof time because of the distance from the roadside to the R.C.M.P. detachment. [156] In the ensuing discussion between Constable Leckie and Mr. Alexander, it is clear that Constable Leckie arrested Mr. Alexanderfor public mischief, read to Mr.

Alexander his right to retain and instruct counsel, his right to silence, the supplement Charter warning,and offered Mr. Alexander an opportunity to contact a lawyer. Also on the transcript and in the recording, an unknown male, likelyCorporal Babin, told Mr. Alexander of his right to speak to a lawyer and his right to silence. [157] In his evidence on this issue, Mr. Alexander said many things. To begin, a number of times he said he did not understand. Thisdoes not reflect well on Mr. Alexander because in my view he did understand and was playing coy with Constable Leckie. As I saidearlier, at the roadside Mr.

Alexander understood both the right to counsel and the right to silence. [158] Several times in his discussion with Constable Leckie Mr. Alexander said he did not want to contact a lawyer. When ConstableLeckie offered to provide Rasheed’s business number, Mr. Alexander replied by suggesting that he could be of help to the police andprovide useful information. Clearly, Mr. Alexander had no interest in speaking a lawyer or his so called counsel, Rasheed. [159] It is also my view that nothing turns on Constable Leckie’s arrest of Mr. Alexander for public mischief.

It was only duringsubmissions that I learned that the public mischief related to Mr. Alexander’s assertion that Constable Rose assaulted him at roadside. Nevertheless, Mr. Alexander’s jeopardy did not change. He was detained for another

summary conviction offence. Also, based on hisresponses to Constable Leckie’s questions in regards to the offence, Mr. Alexander was again being deliberately obtuse. [160] Near the end of the discussion between Constable Leckie and Mr. Alexander, Constable Leckie referred to the Charter of Rightsbeing in the Criminal Code of Canada. Mr. Alexander said that this confused him. I believe that Constable Leckie made an innocentmistake. She was referring to the standard reference book which contains the Criminal Code and other federal legislation, including theCharter of Rights and Freedoms. In my view Mr.

Alexander already knew his rights when Constable Leckie mispoke. It is notreasonable to believe that this created any misunderstanding in Mr. Alexander’s mind. [161] To conclude, I am satisfied that Mr. Alexander was advised and understood his right to counsel. He was given a reasonableopportunity to exercise his right to counsel and made the choice not to speak to a lawyer. Furthermore, on the principles in Sinclair andTremblay, Mr. Alexander was not reasonably diligent in exercising his right to counsel.

Near the conclusion of the discussion, Mr.Alexander claimed his rights under the Common Law and told Constable Leckie “I am done here”. In the context of the entirediscussion, I interpret this as a clear waiver by Mr. Alexander of his right to counsel. [162] Mr. Alexander has not established a breach of s. 10(

b) of the Charter of Rights and Freedoms. The application is dismissed.

Section 11(b) – Unreasonable Delay: [163] Mr. Alexander asserts that his right to a trial within a reasonable time has been infringed. Mr. Alexander also submitted that hehas suffered prejudice. His memory has faded and his income has been affected by the delay. [164] The chronology of events is as follows: November 4, 2010 – Date of offence; January 6, 2011 – Information sworn; January 10, 2011 – Mr. Alexander’s first appearance. Mr. Alexander was present, but refused to identify himself. He was arrested bythe sheriffs and at a subsequent bail hearing was released.

At 4:00 on January 10, there was a further appearance by Mr. Alexanderbecause he refused to sign his bail document. A warrant was issued remanding Mr. Alexander in custody, but it was cancelled when Mr.Alexander signed the bail document; January 24, 2011 – Arraignment hearing;

February 7, 2011 – Arraignment hearing; February 21, 2011 – Arraignment hearing; October 31, 2011 – Trial confirmation hearing; December 2, 2011 – Trial date; December 5, 2011 – Trial date; December 6, 2011 – Trial date; December 15, 2011 – Trial date; December 20, 2011 – Trial date; January 23, 2012 – Trial date; January 24, 2012 – Trial date; February 8, 2012 – Trial date. [165] This chronology establishes that it was 11 months from the time when the Information was sworn, January 6, 2011, to thecommencement of the trial on December 2, 2011. [166] In R. v.

Morin, (1992) (SCC), 71 C.C.C. (3d) 1 (S.C.C.), Sopinka, J. suggested a period of 8 to 10 months as aguide for Provincial Courts in regards to

summary conviction offences. The time to trial in this case is just outside of this recommendedperiod. However, a review of the Record of Proceedings reflects that Mr. Alexander was likely responsible for some of the delays incompleting the arraignment process. [167] Nevertheless, the time to trial in this case is not unreasonable, it is within the then existing standards in the Kamloops ProvincialCourt. The time frame in this case does not warrant a detailed inquiry into the purported issue of delay. [168] Mr.

Alexander asserted that he suffered prejudice on two accounts: a fading memory and loss of income. [169] Several times in his evidence Mr. Alexander said that he was unable to remember certain details because of the delay in bringingthis matter to trial. I am very sceptical of Mr. Alexander’s assertion in this regard. From Mr. Alexander’s evidence I was able to discernthe key events at the roadside. In addition, it was my overall impression that Mr. Alexander had very little difficulty in recounting hisversion of the events. In fact, he was an intense advocate for his point of view.

The problem is as I said earlier, the evidence is notcredible or reliable. [170] Mr. Alexander’s assertion that the delay affected his ability to earn income was not supported by any specifics. In R. v. Fagan[1998] B.C.J. No. 2889, (B.C.C.A.) the Court held that unreasonable delay applications are unlikely to succeed unless the accusedestablishes serious prejudice. In this case, Mr. Alexander has not met that burden. [171] Mr. Alexander also asserted that the trial, once it began, occupied a number of days which also affected his income. Theoriginal trial time estimate was three hours.

The trial took the better part of 8 days. The duration of the trial was driven by Mr.Alexander. He cannot now complain about the length of this trial. [172] Mr. Alexander also complained about pre-Information delay. As I understand the law, this period of time is not to be taken intoaccount unless an abuse of process can be established. That is not the situation in this case. See R. v. Kalanj, (SCC),[1989] 1 S.C.R. 1594.

[173] To conclude, Mr. Alexander has not established a breach of s. 11(

b) of the Charter of Rights and Freedoms. The application isdismissed. Obstruction of a Peace Officer,

Section 129(

a) of the Criminal Code: [174] The offence of obstructing a peace officer contrary to s. 129(

a) of the Criminal Code is a general intent offence. See R. v. Gunn,(1997) 1997 ABCA 35 , 113 C.C.C. (3d) 174 (AB.C.A.). [175] In R. v. Westlie, (1971) (BC CA), 2 C.C.C. (2d) 315 (B.C.C.A.), Mr. Justice Branca, said that, in order toprove the offence of obstruction, the following questions need to be asked: 1) Did the evidence prove an obstruction of a peace officer? 2) At the time was the police officer acting in the execution of his duty? 3) Was the obstruction wilful in the sense that it was not only intentional but done without lawful excuse? [176] In response to the charge, Mr.

Alexander raised the following issues: the charge does not apply to his person; his Common Lawand inherent rights absolve him of responsibility; he has a claim of right pursuant to ss. 38 and 39 of the Criminal Code; he was assaultedby the police officers; and s. 126 of the Criminal Code provides him with a lawful excuse. [177] I will deal with each of Mr. Alexander’s arguments in the order in which they were raised. [178] At the close of the Crown’s case Mr. Alexander made a no evidence motion and argued that this Court lacked jurisdiction overhis person. I rejected this argument.

I adopt my earlier reasoning and again dismiss his claim that this Court has no jurisdiction over himin respect to this Criminal Code offence. [179] In R. v. Lindsay, 2011 (B.C.C.A.) 99, the accused, Mr. Lindsay submitted that he was not a “person” as defined in the IncomeTax Act. The trial judge determined that Mr. Lindsay’s position was “simply not tenable”. On appeal to the Supreme Court, thisargument was also rejected and the judge concluded that the trial judge was “undoubtedly correct”. [180] At the British Columbia Court of Appeal, the Honourable Justice K. Smith said: 27 With all due respect to Mr.

Lindsay's submissions, I think there is no possibility that he will be able to persuade a division of thisCourt to accept his arguments or his contention that he is not a "person" within the meaning of that term in the statute. In my view, thereasoning of both Sinclair P.C.J. and Verhoeven J. is compelling on this point, as are the remarks of this Court at 2006 BCCA 150, paras.2-3, albeit they are obiter, as Mr.

Lindsay has pointed out. [181] It seems to me, that if this argument regarding the definition of “person” failed in regards to the Income Tax Act, it must also failin the criminal law context. [182] In both the 911 recording and his evidence Mr. Alexander asserted that the Motor Vehicle Act did not apply to him as a CommonLaw man and by virtue of his inherent rights. Not surprisingly, no authority was provided to support this position. I reject thisunsupported argument. [183] There is no merit to Mr. Alexander’s assertion that he has a claim of right conferred upon him by ss. 38 and s.39 of the CriminalCode.

Both sections speak about “peaceable possession”, which I agree Mr. Alexander had. But in relation to s.38, Constables Rose,Thorson and Edinger were not trespassers. This

section does not apply to the fact pattern before me. In terms of s.39, Constable Rosewas statutorily authorized to seize Mr. Alexander’s vehicle. He was in the execution of his duty. It cannot be said by Mr. Alexander thathe had an honest belief that he was entitled to retain possession of his vehicle. Quite simply, Mr. Alexander did not want to see hisvehicle impounded. [184] As I said earlier in these Reasons I do not believe Mr. Alexander’s evidence that he was thrown on the back of the car by thepolice. Several times in his evidence Mr.

Alexander complained about one of the handcuffs being too tight, but it must be rememberedthat the three constables were faced with a volatile Mr. Alexander at the time he was handcuffed. Also, Mr. Alexander was in handcuffsa short period of time, approximately 30 minutes. There is no substance to Mr. Alexander’s claim that he was assaulted by the police. [185] I do fully not understand Mr. Alexander’s argument in relation to s. 126 of the Criminal Code, but I believe he asserts that thissection legitimizes his retaining possession of his vehicle and gives him a defence to the obstruction charge. This

section of the CriminalCode makes it an offence to disobey a statute, which does not provide for any punishment.

Section 129(

a) of Criminal Code contains apunishment provision for obstruction of a peace officer. Consequently,

Section 126 has no application in Mr. Alexander’s case. [186] Earlier, I set out the three questions which form the requirements of the offence of obstruction. The Crown must establish theseelements in order to prove a conviction. To me, it seems more appropriate to begin by addressing the second question. Were ConstablesRose, Thorson and Edinger engaged in the execution of their duty? Constable Rose, as a peace officer, was acting within his duties whenenforcing the Motor Vehicle Act, which includes the excessive speeding

section and the impoundment provisions. Also, the MotorVehicle Act, Regulation 26/58, 7.07(6) states that: “No person shall tow a motor vehicle if there is a person in or on the towed motor vehicle.” [187] Very clearly, the statutory scheme authorized Constable Rose to impound Mr. Alexander’s vehicle and order him to leave hisvehicle. Also, Constables Thorson and Edinger, after they were briefed by Constable Rose, were also entitled to act. [188] Does the evidence establish an obstruction? The answer is yes. Mr. Alexander was required to leave his vehicle when orderedto do so by the constables and his repeated failure to comply with this lawful direction, constituted an obstruction.

[ 189 ] Did Mr. Alexander wilfully obstruct the constables, either intentionally or without lawful excuse? [ 190 ] No matter which approach is adopted, Mr. Alexander’s repeated failure to comply with the directions of the peace officers was deliberate. To put it very simply, Mr. Alexander did not want to give up his vehicle and see it towed. Also, Mr. Alexander had no lawful excuse for his failure to comply with the lawful directions of the peace officers. [ 191 ] To conclude, it is very clear that the Crown has established, beyond a reasonable doubt, that Mr.

Alexander obstructed Constables Rose, Thorson, and Edinger in the execution of their duty. I find Mr. Alexander guilty. ___________________________ C.D. Cleaveley Provincial Court Judge