Her Majesty the Queen v. Kukemueller

[Indexed as: R. v. Kukemueller]

Ontario Reports

Court of Appeal for Ontario,

Sharpe, Gillese and Rouleau JJ.A.

April 17, 2014

119 O.R. (3d) 741 | 2014 ONCA 295

Case Summary

Criminal law — Causing a disturbance — Elements of the offence — What constituting disturbing public — Accused yelling obscenities at police officers in front of crowd of family and friends — Trial judge and summary conviction appeal judge erring in finding that contributing to tension with police at scene making out offence of causing disturbance — To prove a public disturbance the Crown must prove that conduct interfered with public's normal activities or with ordinary and customary use by public of place in question.

The accused summoned the fire department to his rural property to extinguish a car fire. The fire fighters asked for police backup. When the police arrived, the accused engaged in a loud, profane and angry tirade against the police after his girlfriend and father were arrested. About 22 people were present, including family members and friends of the accused. The accused was charged with causing a disturbance in or near a public place. He was convicted, and the summary conviction appeal judge affirmed the conviction. The accused appealed.

Held, the appeal should be allowed.

In order to prove the offence of causing a disturbance to the public peace, the Crown must prove that the accused engaged in one of the named activities and that resulted in disturbing the public. Contributing to or raising the tension at the scene of an interaction between the police and the public does not establish that the public was disturbed. To prove the second element of the offence, the Crown must prove that the accused's conduct interfered with the public's normal activities or with the ordinary and customary use by the public of the place in question, and it failed to do so.

R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167, [1992] S.C.J. No. 6, 132 N.R. 297, J.E. 92-190, 109 N.S.R. (2d) 145, 69 C.C.C. (3d) 289, 10 C.R. (4th) 125, 15 W.C.B. (2d) 83; R. v. Swinkels (2010), 103 O.R. (3d) 736, [2010] O.J. No. 4672, 2010 ONCA 742, 273 O.A.C. 371, 263 C.C.C. (3d) 49, 81 C.R. (6th) 116, apld

Other cases referred to

R. v. A. (L.), [2005] O.J. No. 6285, 2005 ONCJ 546, 72 W.C.B. (2d) 490; R. v. Luedecke (2008), 93 O.R. (3d) 89, [2008] O.J. No. 4049, 2008 ONCA 716, 269 O.A.C. 1, 61 C.R. (6th) 139, 236 C.C.C. (3d) 317, 79 W.C.B. (2d) 624; R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, [1992] S.C.J. No. 7, 142 N.R. 141, J.E. 92-1636, 131 A.R. 81, 76 C.C.C. (3d) 193, 16 C.R. (4th) 291, 41 M.V.R. (2d) 161, 17 W.C.B. (2d) 468; R. v. Osbourne, [2008] O.J. No. 1135, 2008 ONCJ 134, 78 W.C.B. (2d) 205; R. v. Peters, 1982 CanLII 422 (BC CA), [1982] B.C.J. No. 2213, [1982] 2 W.W.R. 520, 33 B.C.L.R. 343, 65 C.C.C. (2d) 83, 27 C.R. (3d) 246, 7 W.C.B. 163 (C.A.); R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Wolgram, 1975 CanLII 1361 (BC SC), [1975] B.C.J. No. 739, 29 C.C.C. (2d) 536 (S.C.) [page742]

Statutes referred to

Canadian Charter of Rights and Freedoms

Criminal Code, R.S.C. 1985, c. C-46, s. 175(1)(a)

APPEAL by the accused from the judgment of Vallee J. of the Superior Court of Justice dated October 1, 2013 dismissing a summary conviction appeal from the conviction entered by L. Cameron J. of the Ontario Court of Justice on August 31, 2012.

Michael Medeiros, for respondent.

Justin Kukemueller, appearing in person.

Gerrit Kukemueller, appellant's father appearing on his behalf.

The judgment of the court was delivered by

[1] SHARPE J.A.: — Justin Kukemueller was convicted of causing a disturbance in or near a public place contrary to s. 175(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The charges arose from an incident that took place at a rural property near the Town of Buckhorn in the early evening on July 30, 2011. The local fire department received a call to attend the address of the appellant to deal with a car that was on fire. The car belonged to the appellant's girlfriend, Caitlynn Wiles. It had crashed into a tree and it was on the appellant's property. While en route to the fire, the fire department requested police assistance.

[3] There was a crowd of young people at the scene. They appeared to have been drinking. The firefighters extinguished the fire. On arrival at the scene, the police officer learned that the vehicle fire may have been caused by people playing "demolition derby". The police officer spoke to the appellant and to Ms. Wiles. They both smelled of alcohol. Ms. Wiles told the police officer that she had been driving the car when it hit the tree. The police officer arrested her for dangerous driving, following which a struggle ensued between the police officer and Ms. Wiles. The appellant and some of his friends became upset. The police officer used her emergency button to request backup. The police officer, accompanied by one of the firefighters, took Ms. Wiles to the cruiser at the road and the crowd of young people started yelling. The appellant was upset and yelling and swearing.

[4] More police arrived and, not long afterwards, so too did the appellant's father, driving an off-road vehicle. He was arrested for impaired driving. [page743]

[5] At that point, the appellant reacted with a loud, profane and angry tirade against the police. About 22 people, including family members, friends, firefighters and police officers, were present. The appellant was arrested and charged with causing a disturbance. He was later charged with assaulting a civilian cell monitor at the police station.

[6] The charges against Ms. Wiles were ultimately stayed. The charges against the appellant's father were dismissed at trial on the basis that there were no reasonable grounds on which to arrest him and, therefore, his arrest was unlawful.

Trial

[7] At trial, as on this appeal, the appellant was represented by his father. A number of issues were raised, including several alleged breaches of the Canadian Charter of Rights and Freedoms. The focus of the defence was that the police were trespassers on the appellant's property.

[8] The trial judge found that the appellant's "behaviour had an effect on the other family and friends who were present and contributed to raising the tension at the scene amongst those people as well as the police". The appellant's behaviour, she found, "made things worse". She dismissed the Charter arguments and concluded that the appellant had caused a disturbance.

[9] The assault charge was based on the allegation that the appellant had scooped water from the toilet, thrown it around and got some of it on the cell attendant's pants. The trial judge was not satisfied that the appellant had deliberately splashed water on the attendant and she acquitted the appellant of that charge.

Summary Conviction Appeal

[10] The appellant's appeal to the Superior Court of Justice was dismissed. Again, the appellant was represented by his father, who focused on the argument that the police were trespassers and that, as [a] result, their actions were unlawful and that the appellant's Charter rights were violated. The summary conviction appeal judge rejected those arguments and affirmed the trial judge's finding that because the appellant's conduct "contributed to raising the tension at the scene", the offence of causing a disturbance was made out.

Issues

[11] Mr. Kukemueller seeks leave to appeal to this court essentially on the same grounds advanced on the summary conviction appeal. [page744]

[12] The test for leave to appeal from a summary conviction appeal is set out in R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, at para. 37.

[13] I see no merit in the submissions that the police were trespassers on the appellant's property, that the appellant's Charter rights were violated, or that the alleged disturbance did not occur in public or in a public place. I would refuse leave to appeal on those grounds

[14] However, I would grant leave to appeal with respect to the legal elements of the offence of causing a disturbance. I recognize that both the trial and the summary conviction appeal judge cited the relevant case law. However, accepting the facts as found by the trial judge, in my respectful view, both the trial judge and the summary conviction appeal judge failed to apply the governing principle that emerges from the cases. This gives rise to an error of law: see R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, [1992] S.C.J. No. 7, at p. 294 S.C.R.; R. v. Luedecke (2008), 93 O.R. (3d) 89, [2008] O.J. No. 4049, 2008 ONCA 716, at para. 48. As in Morin, my disagreement "is with respect to the law and not the facts nor the inferences to be drawn from the facts". There is a legal issue of general public importance bearing upon interactions between the public and the police, and for that reason, I would grant leave to appeal.

Analysis

[15] The Criminal Code, s. 175(1)(a) provides that everyone commits an offence who "not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language . . .".

[16] The leading case interpreting s. 175(1)(a) is R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167, [1992] S.C.J. No. 6. McLachlin J., writing for a unanimous court, stated, at p. 171 S.C.R., that there are two elements to this offence; first, the commission of one of the enumerated acts; and second, that the commission of those acts caused a disturbance in or near a public place.

[17] There is no doubt that by yelling and swearing at the police, the appellant committed one of the enumerated acts. The question is whether those acts "cause[d] a disturbance in or near a public place".

[18] In Lohnes, McLachlin J. reviewed the jurisprudence as it stood at the time as to the meaning of "disturbance". She identified two lines of authority. Some cases adopted what she described, at p. 173 S.C.R., as "an expansive approach" in which the offence was made out where the specified conduct "disturbs [page745] or could reasonably be inferred as disturbing another person". Other courts took a more limited approach and rejected the proposition that the "the mere disturbing of the peace or tranquility of one person's mind" was sufficient.

[19] McLachlin J. rejected the expansive approach and concluded, at p. 177 S.C.R., that for the second element of a disturbance to be made out, "the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question". She added, at p. 178 S.C.R., that disturbance in this context "involves more than mere mental or emotional annoyance or disruption" and, at pp. 178-79 S.C.R., that the aim of the offence is "not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities" and interference "with the ordinary use of a place".

[20] At pp. 180-81 S.C.R., McLachlin J. explained that the more restrictive and concrete approach, based upon an interference with the use of a public place rather than mental or emotional upset, provides a sound basis upon which to achieve a "balance between the individual interest in liberty and the public interest in going about its affairs in peace and tranquility".

[21] In Lohnes, the appellant had shouted obscenities at his neighbour from his own veranda. The Supreme Court held that even if this caused emotional disturbance or annoyance to the neighbour, it did not constitute a "disturbance in or near a public place" because upset does not amount to interference with the ordinary and customary use of the premises by the public.

[22] Lohnes was applied by this court in R. v. Swinkels (2010), 103 O.R. (3d) 736, [2010] O.J. No. 4672, 2010 ONCA 742, where the accused was part of a group yelling obscenities outside a bar at closing time. The police heard the yelling, proceeded to investigate and the accused came towards them yelling further obscenities and holding out his arms with his middle fingers up. The police charged the accused with causing a disturbance and he was convicted. There was "evidence that the appellant's conduct fired up the crowd": see Lang J.A., dissenting, at para. 35. This is very similar to the trial judge's finding in this case that the appellant's conduct had "contributed to raising the tension at the scene".

[23] The majority (LaForme J.A., Feldman J.A. concurring) allowed an appeal from conviction, holding that even where the shouting is done and a crowd gathers, the Crown must still prove more to establish the second element of the offence, namely, that the conduct caused an externally manifested [page746] disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. The majority stated, at para. 18: "Generally speaking . . . shouting obscenities at police officers is not a disturbance in and of itself". The majority added, at para. 28: "a 'public disturbance' requires more than a crowd observing -- or even shouting anti-police sentiments at -- police officers in the course of arrest".

[24] As the majority in Swinkels noted, there are several cases rejecting the proposition that merely yelling obscenities at the police amounts to the offence of causing a disturbance. In R. v. Osbourne, [2008] O.J. No. 1135, 2008 ONCJ 134, 78 W.C.B. (2d) 205, the trial judge acquitted an accused who hurled abuse at the police and attracted a crowd of ten to 15 people who yelled anti-police sentiments. See, also, R. v. Wolgram, 1975 CanLII 1361 (BC SC), [1975] B.C.J. No. 739, 29 C.C.C. (2d) 536 (S.C.); R. v. Peters, 1982 CanLII 422 (BC CA), [1982] B.C.J. No. 2213, 65 C.C.C. (2d) 83 (C.A.); R. v. A. (L.), [2005] O.J. No. 6285, 2005 ONCJ 546, 72 W.C.B. (2d) 490.

[25] In my view, the trial judge and the summary conviction appeal judge erred in law by concluding that the appellant's conduct satisfied the second element of the offence -- causing a disturbance in or near a public place -- as defined in Lohnes and Swinkels. There was no evidence and no finding that the appellant's conduct interfered with the public's normal activities or with the ordinary and customary use by the public of the place in question. Contributing to raising the tension at the scene of an interaction between the police and the public does not amount to the kind of disturbance that is required for this offence to be made out.

[26] On appeal, the Crown relies on evidence that the appellant's grandmother came out of her house and tried to calm him down. The appellant's grandmother was simply concerned about his well-being. She thought that he would listen to her. She testified that she was "upset" but, as I have explained, emotional upset does not amount to a disturbance.

Conclusion

[27] While I certainly do not condone yelling obscenities at the police, the issue for this court is not whether the conduct of the appellant was obnoxious or deplorable but whether it was criminal. In my view, it was not and it follows that this appeal should be allowed and the conviction for causing a disturbance set aside. I would deny the appellant's request for costs as the circumstances of this case do not meet the stringent test for awarding costs against the Crown.

Appeal allowed.

End of Document