R. v. Verwey, 2013 ONCJ 537

minicounsel

Court File No.: Central East – Newmarket 13-00459 Date: 2013-10-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Robert Verwey

Before: Justice P.D. Tetley

Heard on: July 16, 2013, September 20, 2013

Judgment released on: October 4, 2013

Counsel:

Patrick Quilty, for the Crown
Tom Hicks, counsel for the defendant Robert Verwey

OVERVIEW

1Robert Verwey stands charged with the offences of assault (section 266) and obstruct police (section 129(a)) of the Criminal Code. The charges arise from an incident which took place on Sunday, December 30, 2012, on Highway 400, north of the King Road exit, in the Township of King.

2Shortly after noon on December 30, 2012, the motor vehicle operated by the defendant became involved in a rear-end collision with a motor vehicle operated by Joe Papandrea.

3Mr. Papandrea testified that he had been operating his motor vehicle northbound on Highway 400 at a rate of speed which he estimated to be between 60 to 80 kilometres an hour, when he observed the traffic ahead of him had come to a sudden stop. Road conditions were recalled as being wet. The weather was clear and it was not snowing.

4Shortly after his vehicle came to a complete stop, Mr. Papandrea was rear-ended by the SUV operated by Mr. Verwey. As a consequence of the collision, the Papandrea vehicle sustained significant damage to the point that it was subsequently written off.

5In the aftermath of the collision, two lanes of the northbound 400 Highway were closed. The lane closest to the centre median, lane number 1, was partially occupied by the two damaged vehicles. The middle lane of the highway was blocked by a fire truck. The collision resulted in northbound traffic being directed to the curb lane, or lane number 3, in order to bypass the accident scene.

6In short order, Provincial Police Constable Kovolov directed that the defendant's motor vehicle be towed to enable the highway to be cleared. This request was initially resisted by the defendant, who indicated that he preferred to wait for a flat bed tow truck that he had requested attend from the Whitby car dealership where he was employed.

7Understandably, the investigating officer was anxious to have the damaged vehicles removed from the highway so that the normal flow of traffic could be restored. An objective view of the trial record would lead one to conclude that it was the defendant's initial intransigence, desire to arrange for his own tow, and wilful non-compliance with the officer's directives that created a situation that would ultimately result in the charges before the court being laid.

8Following a dispute with the tow truck driver, Hodin Yaqo, regarding the cost of the tow, in which the defendant sought the intervention of the investigating officer with a view to securing a more moderate fee, Constable Kovolov directed that the defendant's motor vehicle be removed from the travelled portion of the highway without further delay.

9In furtherance of this directive, Hodin Yaqo approached the defendant's vehicle in order to facilitate the removal of the defendant's wife and two young children from that vehicle so that it could be towed.

10There is no consensus in the trial record as to the events that transpired next. Four different accounts of an observed interaction between Mr. Yaqo and Mr. Verwey were offered.

11Hodin Yaqo testified that he approached the Verwey vehicle at the expressed direction of Constable Kovolov with the intention of securing the removal of Mr. Verwey's wife and two children so that the vehicle could be towed in safety.

12Mr. Yaqo testified that he had just reached the vehicle and was about to open the back door of the defendant's car when he was pushed by the defendant. Mr. Yaqo recalled the defendant indicating, "Do not fucking touch my car" as the push took place.

13The force of the push was variously described by Mr. Yaqo during the course of his trial testimony. Initially, Mr. Yaqo advised that he was propelled backwards across much of the middle lane of the northbound 400 Highway and almost into lane number 1, or the curb lane, which was a "live" lane of travel.

14While subject to cross-examination, Mr. Yaqo acknowledged that he had indicated in his statement to the police that the force of the blow propelled him backwards over a distance of five to six feet. While subject to further cross-examination by Mr. Hicks, Mr. Yaqo acknowledged that the displacement may have been as little as two or three feet and that he had remained within the confines of the middle lane throughout the entirety of his interaction with the defendant.

15P.C. Kovolov testified that he requested that the tow truck driver secure the removal of the defendant's family from the motor vehicle so that the damaged SUV could be towed in safety.

16He observed the tow truck driver being pushed by the defendant and indicated that the force of the push resulted in Mr. Yaqo being moved from the middle of lane 1 (the outer passing lane nearest to the centre of the divided highway) to the end of the outer confines of lane 2 adjacent to the live lane of travel. The investigating officer advised that he believed the tow truck driver came within a metre of the live lane of travel as a result of being shoved backwards by the force of the defendant's two-handed push.

17Constable Kovolov indicated that he was standing in close proximity (within seven feet) of the scene of the altercation. In total, the force of the push was estimated to have resulted in a shift in the positioning of the tow truck driver of approximately 10 feet or three metres.

18Significantly, P.C. Kovolov acknowledged that the defendant may have indicated, "Don't touch my fucking family", or words to that effect, at the time of the push.

19The investigating officer characterized the defendant as being aggressive and agitated throughout and did not accept defence counsel's suggestion that the defendant eventually verbalized his consent to having the SUV towed by Mr. Yaqo.

20Mr. Verwey testified that he was upset and distressed by the proposed fee that the tow truck driver indicated would apply to his services in removing the Verwey vehicle from the roadway. The price was indicated to be $200.00, which Mr. Verwey found to be exorbitant. Mr. Verwey countered with an offer of $60.00 which was not accepted by the tow truck operator. The eventual fee charged, according to Mr. Yaqo, was $155.00.

21Mr. Verwey advised that he had acquiesced in the officer's request that his vehicle be removed prior to the arrival of the tow truck that the defendant had requested from the dealership in Whitby and was preparing to facilitate the officer's request when the tow truck driver approached the back seat of the Verwey SUV where the defendant's family was located. Mr. Verwey indicated that he became concerned for the safety of his family as Mr. Verwey opened the rear door of the vehicle. This concern was rooted in the fact that there had been a heated dispute regarding the fees to be levied in consideration of the proposed tow moments before.

22Mr. Verwey advised that he directed Mr. Yaqo not to touch his family in explicit terms with the following words being uttered: "Do not touch my fucking family". These words were reportedly uttered as Mr. Yaqo opened the back door to the Verwey vehicle and motioned toward the defendant's children, a three year old and an eight month old, who were located in the back seat.

23The defendant advised that he pushed Mr. Yaqo's chest with both hands but that the push directed Mr. Yaqo back toward the front of the Verwey vehicle and not across the centre northbound lane of the 400 Highway as described by both the investigating officer and Mr. Yaqo.

24During cross-examination, Mr. Verwey advised that he was "…trying to direct the situation". He further advised that he thought Mr. Yaqo might be intending to harm his infant son based on the ill-feelings arising from the unresolved financial dispute over the cost of the tow. Mr. Verwey indicated that in view of that dispute, he was "not sure what he (Hodin Yaqo) was planning on doing".

25The defendant testified that by this point, his brother-in-law was en route to the scene, presumably with what Mr. Verwey deemed a more appropriate and less costly towing vehicle, but he nevertheless agreed to comply with the officer's directive by allowing his SUV to be towed across the road to the shoulder of the northbound lanes of the 400 Highway. Mr. Verwey recollected the force of the push to be no more than was required to propel Mr. Yaqo away from the open door.

26April Verwey, the defendant's wife, also offered an account of the events leading to the push that forms the subject matter of the assault count in this trial. Ms. Verwey indicated that she was seated in the back seat with her two children. She could hear the investigating officer yell at the tow truck driver to "Get them out of there". She then recollected the back passenger door being opened by Mr. Yaqo, and Mr. Yaqo reaching in toward the location of her eight month old infant son.

27Ms. Verwey advised that she then heard her husband say, "Get away from my fucking family". Thereafter, she recalled the tow truck driver being pushed by her husband. She was uncertain as to the direction of displacement to the tow truck operator as a consequence of his being pushed but offered her view that the force was not significant.

28Ms. Verwey's recollection was that the tow truck driver reached inside the rear passenger compartment of the Verwey SUV "…almost touching our son". Ms. Verwey also indicated that the investigating officer had been "…yelling at everyone all day".

The Issues

29This case involves consideration of two issues:

Has the Crown established on the basis of proof beyond a reasonable doubt that the defendant resisted or wilfully obstructed Constable Kovolov or any other person lawfully acting in aid of that officer;
Was the defendant acting in self-defence within the parameters of section 34 of the Criminal Code at the time he pushed the tow truck operator, Hodin Yaqo.

Analysis

Issue 1 - The Obstruct Charge

30The Crown must establish that the defendant resisted or wilfully obstructed Constable Kovolov in the execution of his duty or, alternatively, wilfully obstructed the tow truck operator, who was acting in aid of the officer.

31In order to establish this offence, the Crown need not prove that the accused's conduct completely frustrated the officer. It is sufficient that the defendant's conduct simply affect or impact the officer in relation to the duty that is being executed. [1]

32Substantiation of this offence requires more than mere passive resistance in order for it to be concluded that an individual has resisted: see R. v. Rahm [2]. That case featured a defendant who refused to come out of the closet at the request of the police. That act of passive resistance was not concluded to constitute the offence of resisting or wilfully obstructing a peace officer in the execution of his duties. The required mens rea or criminal intention specified by this provision requires that the Crown establish that the defendant wilfully acted in a manner that resulted in the obstruction of the police officer. Within the context of this particular section, a wilful act implies that the accused knew what he was doing and intended to do what was done. [3]

33The Crown must also establish that the defendant knew the complainant was a police officer engaged in the execution of his or her duties as an essential element of the establishment of the defendant's criminal intention. [4]

34There is no issue taken with regard to the identity of Constable Kovolov as a police officer. He was in full uniform and operating a marked cruiser. It is apparent that the defendant knew that Constable Kovolov was engaged in the execution of his duty as a police officer.

35Mr. Verwey was close enough to Constable Kovolov that he would have heard the officer direct Mr. Yaqo to remove Mr. Verwey's vehicle from the roadway and accordingly, would have been aware that Mr. Yaqo was assisting the police officer in the execution of his duty to open the northbound lanes of Highway 400. Mr. Verwey acknowledged that he had requested the officer's intervention in an effort to secure a more reasonable towing tariff from Mr. Yaqo prior to the unfortunate physical confrontation at the side of the Verwey vehicle. Mr. Verwey must have been aware at the outset that the officer wished the roadway to be cleared.

36On consideration of the totality of the trial record, I conclude that the Crown has established that Mr. Yaqo was acting at the direction of the attending police officer, who was lawfully engaged in the execution of his duty, and that Mr. Verwey was aware of that fact at the time of the ensuing physical confrontation.

37Having arrived at these conclusions, the only remaining matter for determination is whether the Crown has established the continuing obstruction of the officer at the time of the defendant's arrest. Mr. Verwey indicated in his trial testimony that he had agreed to have his vehicle towed when it became evident that Constable Kovolov was not prepared to wait for the arrival of the alternative towing service that Mr. Verwey had arranged.

38The trial record clearly demonstrates that the defendant was initially resistant to the investigating officer's directive that the damaged vehicle be removed from the highway. His failure to immediately comply with the officer's request can only be concluded to have been wilful and to constitute an act of obstruction. That said, there remains some uncertainty in my mind as to whether or not this initial reluctance continued throughout the entirety of the incident in issue in this case.

39Despite the officer's representations that there was never a clear or verbalized willingness on the part of Mr. Verwey to comply with the officer's order, and the negative contrary inference that might arise from the pushing incident that ensued when Mr. Yaqo endeavoured to give affect to the officer's directive, I nevertheless find myself in a state of reasonable doubt with respect to this count.

40While I have grave doubts as to the veracity of Mr. Verwey's account of events, which I conclude to be largely self-serving and disingenuous, I nevertheless conclude that there is some uncertainty as to the state of affairs that existed in relation to the towing of the Verwey vehicle prior to the incident that resulted in the assault charge being laid.

41Mr. Verwey testified that he had ultimately agreed that his vehicle be towed and was prepared to facilitate the towing process which he had initially resisted. While this representation does not appear to be consistent with his observe aggressive demeanour, generally agitated persona, expletive-laden speech and irrational preoccupation with his automobile, I nevertheless conclude, within the context of the analysis referenced in R. v. W.(D.) [5], that some doubt exists in relation to the proof of this charge.

42While I have difficulty accepting Mr. Verwey's representations given the presence of so many contrary indicators, I nevertheless conclude that the Crown has failed to establish the wilful resistance of the officer or his instructed agent, the tow truck driver.

43On consideration of Mr. Verwey's evidence, and that offered by his spouse Susan Verwey, I conclude that there is at least a remote possibility that Mr. Verwey had decided, albeit at the "eleventh hour", to comply with the officer's directives and was in the process of reluctantly doing so at the time of his altercation with Mr. Yaqo.

44Accordingly, while I do not necessarily accept the reliability of Mr. Verwey's representations in that regard, I find that his testimony is sufficient to raise a reasonable doubt with respect to the section 129 offence.

45I have no difficulty concluding that Mr. Verwey was initially resisting the officer's direction regarding the towing of the SUV. It cannot, however, be concluded that this state of affairs continued to the point that it affected or impacted the officer in relation to the duty being executed. The defendant's initial reluctance to have his vehicle towed amounts to more than mere passive resistance. That said, it cannot be definitely determined that the obstruction offence has been made out given Mr. Verwey's representations that he had subsequently agreed to have his vehicle towed and the absence of evidence to refute that representation.

46For these reasons, the defendant shall be found not guilty of this offence and the obstruct police officer charge shall be noted dismissed.

Self-Defence

47The defendant asserts that he is also not guilty of the offence of assault as he believed, on reasonable grounds, that force was about to be used by the tow truck driver in relation to his family.

48In advancing this defence, the defendant relies on section 34 of the Criminal Code which codifies the lawful entitlement of an individual to defend himself against a reasonably apprehended act of physical aggression or threat of force.

49Section 34 reads as follows:

34.(1) A person is not guilty of an offence if:

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and,

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

50On behalf of the defendant, Mr. Hicks submits that Mr. Verwey had a reasonable apprehension that Mr. Yaqo might be intending to do ill-will toward his family as he approached the Verwey SUV.

51This apprehension of the threat of force is contended to be reasonable given the unpleasant exchange that had taken place prior to the tow truck driver's approach of the Verwey SUV. The dispute over the appropriate fee to be charged in relation to the towing of the defendant's motor vehicle, Mr. Verwey's initial resistance to having his vehicle towed, and the general negative dynamic of the defendant's interaction with Mr. Yaqo, are submitted as providing a reasonable basis for the defendant's subjective belief that the tow truck operator might harbour ill-will towards not only the defendant, but members of his immediate family as well.

52Accordingly, the defence submits that the defendant was justified in using reasonable force to prevent the tow truck driver from applying any form of physical force to his family.

53Given the uncertainty of the force ultimately applied, the defence submits that the push of Mr. Yaqo was no more than was necessary in the circumstances and accordingly, can be concluded to be reasonable within the context of section 34.

54In response, the Crown, Mr. Quilty indicates that there is no air of reality to the defendant's expressed concern that his family was about to be harmed by the tow truck driver. Mr. Yaqo was known to be acting in furtherance and in compliance with directions received from the investigating officer who was standing by, along with other emergency personnel, including a number of firefighters. The belief that somehow the tow truck driver would occasion harm to the defendant's family, in view of the referenced towing fee dispute, is seen as unrealistic and self-serving.

55Mr. Quilty also submits that even if the defendant subjectively believed that some harm might be occasioned to the Verwey family or that a reasonable apprehension of a threat of harm is concluded to exist, the force employed in repelling Mr. Yaqo by resort to a two-handed push is excessive in the circumstances and disproportionate to the "threat" presented.

56In reflecting on these submissions, I have reviewed a number of authorities, including R. v. Webers [6], a decision of O'Connor J., then of the Ontario Court of Justice (General Division); R. v. Hebert [7], a May 30, 1996 decision of the Supreme Court of Canada; R. v. Fowler [8], a decision of V.A. Lampkin J., then of the Ontario Court of Justice (Provincial Division), and finally, R. v. McDonald [9].

57These authorities provide helpful direction in the interpretation of the factors referenced in section 34(2) [10] and permit the following conclusions of law to be drawn:

(a) The force referred to in the section references force that is no more than is reasonably necessary to prevent an assault with consideration to the given to the nature and seriousness of the assaultive or threatening conduct in assessing the reasonableness of the response;

(b) The Crown bears the onus of proof, on consideration of the totality of the trial record and on the basis of proof beyond a reasonable doubt, in establishing whether the force used was excessive in relation to the harm it was intended to prevent. In other words, the Crown must establish that the force employed was disproportionate in relation to the force or threat of harm is was intended to prevent;

(c) The test of reasonableness is subjective. As indicated in another Supreme Court of Canada case, R. v. Pétel [11], where Lamer C.J., stated at page 104 as follows:

In a case involving self-defence, it is the accused's state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt. The question that the jury must ask itself is therefore not "was the accused unlawfully assaulted?" but rather "did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?".

(d) Lamer C.J. also directs in Pétel that the emphasis of the trier of fact should be directed to an assessment of the accused's state of mind rather than consideration of the complainant's or victim's acts. In another Supreme Court of Canada case, R. v. McIntosh [12], Lamer C.J. points out at page 497, that (then) section 37 is a provision of general application. In the Chief Justice's own words:

…it [section 37] appears to make the self-defence justification available to an accused in any circumstance where the force used by that accused was (i) necessary, and (ii) proportionate.

(e) In R. v. McDonald, the Ontario Court of Appeal notes that the self-defence under (what was then) section 37 does not require that the defendant must first have been unlawfully assaulted. It does, however, require that the person seeking to rely on the section be either defending himself or someone under his protection from assault. An assault, as defined by the Criminal Code, is the intentional application of force or the attempt or threat to apply force to another person absent that person's consent. Accordingly, the defendant must reasonably believe that he or someone under his protection is being lawfully assaulted and use no more force than is necessary to either defend himself or prevent the assault from occurring.

Conclusion

58In applying these legal considerations to the facts in issue in this case, I conclude, with some reluctance, that given the defendant's agitated state, his preoccupation with his automobile, and his generally aggressive demeanour, that the defendant may have subjectively, albeit erroneously, believed that the tow truck driver presented a potential source of harm to his family.

59In the circumstances, I cannot conclude that this belief was totally unreasonable, given the fact that there had been a heated exchange regarding the towing tariff moments before Mr. Yaqo approached the Verwey SUV with a view to extricating the defendant's family so that the vehicle could be towed.

60In this heightened state of emotional unrest, I cannot discount the possibility that Mr. Verwey believed, on reasonable grounds, that his children or his spouse were at risk of being harmed. Accordingly, section 34(1) of the Criminal Code is available to the defendant to justify the use of force, provided the force he used was proportionate to the harm he reasonably anticipated was about to befall his family.

61Given the uncertainty regarding the force employed, as reviewed previously in this judgment, it cannot be concluded that the defendant was unjustified in using the force he did in attempting to address the perceived threat to his family.

62While I strongly suspect that Mr. Verwey's concerns were primarily, if not exclusively, directed toward the preservation of his vehicle and his pocketbook, I cannot discount the possibility that he was legitimately concerned for the safety of his family, particularly given the fact that his two children were of tender years.

63For these reasons, I conclude the defence of self-defence, as now codified in section 34 of the Criminal Code, provides a legal justification for the defendant's actions. Accordingly, he will be found not guilty of the offence of assault, and that charge will be noted dismissed.

64Before concluding this judgment, I wish to make it clear to the defendant that his actions on the date in question left much to be desired. In his acknowledged efforts to control the situation, Mr. Verwey appears to have forgotten that in certain circumstances, control must be relinquished to those public officials charged with the often onerous responsibility of maintaining public safety.

65The conclusions reached in this judgment should in no way be taken to reflect a negative assessment of the actions of either Mr. Yaqo or the investigating officer, Constable Kovolov. If there is a minor, retrospective, critique to be made, perhaps Constable Kovolov might have considered directing a firefighter or ambulance attendant to address the presence of the defendant's children and his spouse in the defendant's motor vehicle rather than the tow truck driver. That said, it is difficult to criticize a police officer confronted with a difficult holiday weekend accident scene, at high noon, on one of the busiest highways in Canada.