Ontario Court of Justice

Date: 2013-12-09

Court File No.: Walkerton 12 768

Citation: R. v. Houston, 2013 ONCJ 756

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAMIE HOUSTON

Before: Justice Brophy

Heard on: 10 and 18 October 2013

Reasons for Judgment released on: 9 December 2013

Counsel:

• Danise Scapinello, for the Crown
• Scott Thibideau, agent for the defendant Jamie Houston

BROPHY J.:

INTRODUCTION

[1] Jamie Houston is charged with assaulting a police officer engaged in the execution of his duty, contrary to section 270(1)(a) of the Criminal Code and that this occurred on the 27th day of July, 2012, in the town of Port Elgin. It is also alleged that on that same date and in that same place, he assaulted three police officers with intent to resist his lawful arrest, contrary to section 277(1)(b) of the Criminal Code. Lastly, he is charged with causing a disturbance by being drunk in a public place, contrary to section 175(1)(a)(ii) of the Criminal Code.

[2] The Crown proceeded summarily and the trial was heard on 10 and 18 October 2013. The Crown called 5 witnesses, two civilian and 3 police officers. The defence called Mr. Houston and one civilian witness, an employee of Mr. Houston. Judgment was reserved.

SYNOPSIS

[3] On 27 July 2012 Jamie Houston and two employees and co-workers, Joe Leifso and Cody Krause, after a day of construction work, had a number of beers and headed into Port Elgin to get some food. Amber, the girlfriend of Joe, agreed to drive. When they got to Port Elgin, the restaurants were closed and the men decided to go to the Queen's Bar and Grill. Amber stayed in the car. She doesn't like bars. As it turned out that was a wise decision on her part.

[4] At closing time Mr. Houston went outside and confronted Sgt Andrew Evans and two other Saugeen Shores Police Service police officers who had arrested Cody Krause for public intoxication. The confrontation turned physical and Mr. Houston was arrested. In the course of doing so he was tasered three times.

ISSUES

[5] The issues are:

(a) Were the police officers acting in the course of their duty?

(b) Was Sgt Evans entitled to push Mr. Houston to move him away from where the Officers were standing?

(c) Did Mr. Houston assault Sgt Evans when he responded to that push?

(d) Was the arrest of Mr. Houston lawful?

(e) Was Mr. Houston drunk in a public place?

FACTS

[6] It was agreed at the outset of the trial that the identity of Mr. Houston was admitted and that the events occurred at the date, time and place set out in the information and as asserted by the Crown.

Piergiorgio Donnini

[7] The first witness called by the Crown was Piergiorgio Donnini, the owner of the Queen's Bar and Grill. This 48-year-old man was on site in the bar on the night of July 26 and 27, 2012. He noticed a customer, who turned out to be Cody Krause, who had taken his shirt off and was causing a commotion. This person was asked to leave and he showed some resistance. He was moved out of the bar and onto the street by security staff with Mr. Donnini assisting. This person was belligerent and started screaming at staff when he was on the sidewalk outside the bar. The police attended and they dealt with Mr. Krause by arresting him. Mr. Donnini thought this was, unfortunately, normal, given that the individual was clearly drunk and was showing signs of aggression and was being belligerent with him and the police officers.

[8] Mr. Donnini thought the event was finished, but a second man then appeared, who was connected to Mr. Krause. This was the accused, Mr. Houston, who, according to Mr. Donnini, ran up to the police officers and engaged in animated conversation with them in a loud voice using hand gestures and body language to convey his concerns. He was very close to the police officers who were right up against a police cruiser.

[9] The officers were telling Mr. Houston to step away. Mr. Houston did not back off or step away and was now yelling at the police officers and was "nose to nose" with them. Mr. Donnini was 8 to 10 m away and could not see the precise physical interaction between the officers and Mr. Houston, but something happened and he saw that the police decided to arrest the man. They had great difficulty in doing so and eventually a taser was used and only then were they able to bring Mr. Houston under control and handcuff him.

[10] Mr. Donnini says that approximately 40 people were outside watching the melee.

[11] He described Mr. Houston as being very much in the face of the officers and being intense and aggressive in what he was saying and that he was becoming increasingly threatening to the officers.

[12] In cross examination Mr. Donnini says he was not close enough to hear specific words that were being said between the officers and Mr. Houston. He reaffirmed that Mr. Houston was nose to nose with the officers and was very loud and in their faces. He also said that the police were stationary against the cruiser and Mr. Houston ran up to them.

[13] Mr. Donnini was a good witness and was not shaken on cross examination.

Phillip Planz

[14] The second witness called by the Crown was Phillip Planz. Mr. Planz, who is 29 years old and a bouncer at the Queen's Bar and Grill, assisted in the ejection of Mr. Krause. He was outside when the confrontation occurred between the police officers and Mr. Houston. He was not particularly close and from time to time his view was obscured by members of the crowd.

[15] Mr. Planz's evidence is that Mr. Houston walked right up to the police and asked if the arrest of Mr. Krause was necessary and could he just take him home. This conversation started in an abrupt manner. The police response was that they were talking to each other and asked Mr. Houston to step aside and let them do their job or they would have to put him in the cruiser as well. Initially, they were 5 to 7 feet apart, but they got closer and at the end Mr. Houston was only 3 to 4 feet away from the police officers. He definitely was in their face.

[16] The police officers were in a semicircle at the back of their cruiser with their notepads out. In Mr. Planz's memory Mr. Houston elevated his voice after his initial words and the police indicated to Mr. Houston that he should leave them alone to do their jobs, but he kept asking them if he could take Mr. Krause home. At some point they said, leave them alone or he would be arrested for obstruction.

[17] He saw Sgt. Evans put his hands up against Mr. Houston and said "backup, backup". At this point Mr. Houston was probably within 2 feet of Sgt. Evans. Mr. Planz says that the push by Sgt. Evans was not "dangerously forceful". After the push Mr. Houston said don't touch me, and then there was a swing by Mr. Houston and the officers grabbed him by the arms. The police officers told him to stop and calm down.

[18] After the punch was thrown the police officers started to wrestle with the man telling him to calm down and that this is not what he wanted to do. The man tried to break free and the officers told him that they would taser him if he did not stop resisting. Nonetheless Mr. Houston continued to fight and shout and was continually moving his arms and almost broke free. Mr. Houston was almost lifting the police officers off their feet and it was all they could do to hold on to him.

[19] Ultimately, the police officers tasered him and he was stunned and went to his knees and at that point they managed to get to linked sets of handcuffs around his back.

[20] There were quite a few people gathered around watching the fight with some members of the crowd chanting that the police should taser him and other members of the crowd yelling out something about police brutality.

[21] After the use of the taser Mr. Houston said: "Why did you do that, you didn't have to do that."

[22] In redirect Mr. Planz said that after Sgt. Evans pushed Mr. Houston away that Mr. Houston moved right into Sgt. Evans's face and was only 6 to 8 inches away.

Ken Cook

[23] The Crown then called three police officers.

[24] The first was Ken Cook who is a police officer with the Saugeen Shores Police Service. He has been a police officer since 2002. He was one of the 3 officers involved with Mr. Houston on the night in question.

[25] At approximately 2:08 AM he saw the owner of the Queen's Bar and Grill dealing with someone at the door and the person appeared to be assaultive. He stopped and radioed Sgt. Evans, who also attended and after a brief investigation, they decided to arrest the individual, who was Mr. Krause, for public intoxication. The arrest was at 2:09 AM. He was handcuffed, searched and placed in the rear of a police cruiser.

[26] Officer Paulitzki arrived at that point. All three police officers were at the rear of the cruiser on the passenger side close to the curb organizing what they would do next when a male person, who they later learned was Jamie Houston, approached them and demanded to know what was going on with the man they had just arrested. He was very aggressive and assertive in both his approach and demeanor.

[27] Sgt. Evans said to him that it was not his concern and asked that he step back. At that point Mr. Houston was approximately 1.5 m away. As Sgt. Evans was talking the individual walked closer and Sgt. Evans stepped forward and said step back and give us our space. The male replied: "You have your space."

[28] Officer Cook saw Sgt. Evans touch Mr. Houston on the chest with his flashlight and direct him to move back. The touch was on the upper chest area and minimal force was used. Sgt. Evans said step back or you will be arrested.

[29] At that point, the male pushed Sgt. Evans with both hands to his shoulders with enough force that Sgt. Evans stepped back.

[30] Officer Cook and Paulitzki were standing behind Sgt. Evans. They immediately moved to try and restrain Mr. Houston who had just assaulted Sgt. Evans. Mr. Houston said: "It's going to take more than the three of you".

[31] The accused actively resisted and started swinging his arms. Mr. Houston grabbed Officer Cook's epaulet strap and took a swing at him and as Officer Cook stepped back the epaulet was torn from his uniform. The officers tried to control Mr. Houston by knee strikes to his thigh but that that was not successful. They kept telling him to stop resisting. He then heard Sgt. Evans call out: "taser, taser, taser". This was a signal that the taser would be deployed. Officer Cook then stepped back and the Taser was used. Subsequent to that, they were able to bring Mr. Houston under control and he was handcuffed. Mr. Houston was such a large man that two sets of cuffs were required. Mr. Houston was a very strong man.

[32] Officer Cook vividly recalls the first swing by Mr. Houston, but can't remember specifically other swings. He does remember telling Mr. Houston several times to stop resisting, but there was no reaction from Mr. Houston.

[33] A large crowd had gathered and at some point beer bottles were thrown and smashed on the pavement.

[34] Officer Cook testified that Mr. Houston had an odour of alcohol on his breath and had red blood shot eyes.

[35] In cross-examination Officer Cook said initially Mr. Houston was 1 m to 1.5 m away and Sgt. Evans may have taken a step forward when he told Mr. Houston it was none of his concern. The distance was closing however so Mr. Houston probably got within a meter of Sgt. Evans. At one point Mr. Houston would have been in front of Sgt. Evans as close as 6 inches to a foot. He recalls that Mr. Houston continued to walk towards Sgt. Evans. When Mr. Houston refused to step back Officer Cook became concerned about the crowd and the confrontation.

Andrew Evans

[36] Andrew Evans is a police officer with the Saugeen Shores Police Service and has been with that service since December 2002. He holds the rank of Sergeant. He was the second police officer called by the Crown.

[37] He became involved in the incident on 27 July 2012 at approximately 2:08 AM when he saw a disturbance at the entrance to the Queen's Bar and Grill. He saw an aggressive male yelling at the owner of the bar. This person was clearly intoxicated in a public place and he was arrested for that reason.

[38] The officers were at the back of a police cruiser, organizing what they had to do with Mr. Krause, who was now under arrest and in the cruiser, when Mr. Houston approached and came within a few feet of the officers. He was intoxicated. He had slurred speech and glassy eyes and a flushed face.

[39] Mr. Houston asked what's going on with Cody. Sgt. Evans told him to give me my space and Mr. Houston said you have your space. Sgt. Evans told him to backup and he refused to do so. Mr. Houston squared his body up and did not retreat and was within a few feet of Sgt. Evans. Officer Evans became concerned with officer safety.

[40] Sgt. Evans says that he told Mr. Houston at least two times to move back before any contact was made and contact was made because he was very concerned about how close Mr. Houston was and Mr. Houston was intoxicated. It is noted that Mr. Houston was much larger than Sgt. Evans. Sgt. Evans is 5'7" tall and approximately 200 pounds. Other evidence discloses that Mr. Houston is approximately 5'9" tall and 275 pounds.

[41] Sgt. Evans attempted to move Mr. Houston back by pushing him in his midsection with both hands, with one hand closed around a flashlight. Sgt Evans said that minimal force was used. This was corroborated by a number of witnesses.

[42] Mr. Houston waved his hands and pushed Sgt. Evans arms aside and touched him on his torso close to his shoulder. These actions caused Sgt. Evans to back up a little bit. Sgt. Evans considered this an assault against his person.

[43] The situation became very dynamic.

[44] The three officers present, Sgt. Evans and Constables Cook and Paulitzki, attempted to arrest Mr. Houston, Mr. Houston immediately pulled away. They told him to stop resisting and tried to restrain him. Mr. Houston said something to the effect that it's going to take more than three of you. It was clear that Mr. Houston understood that he was being placed under arrest, but nevertheless he broke free and threw a few punches, but Sgt. Evans says that there is no contact. In officer Evans evidence the punches were all over the place and could have been aimed at anybody.

[45] The struggle took place in the middle of the street and the officers were in a precarious position. Empty hand techniques were not working and were ineffective. Sgt. Evans decided to deploy a conducted energy weapon device, known as a taser. He announced that intention 3 times, took the prongs out and used the device in a stun mode only. This was to produce pain compliance not incapacity.

[46] Ultimately it was effective and Mr. Houston was brought under control and then formally advised that he was arrested for assaulting Sgt. Evans and for resisting arrest.

[47] At some point, Sgt. Evans became aware that a bottle had been thrown by someone in the crowd and had broken on the pavement.

[48] Other officers arrived, and assisted in transporting Mr. Houston to the hospital in accordance with protocol when a taser is used.

[49] At 2:22 AM they were at the hospital, where he was given his rights to counsel and read a caution. They cleared the hospital at 2:35 AM and at 2:45 AM they were back at the police station. Ultimately, Mr. Houston was released on a promise to appear and undertaking.

[50] In cross-examination Sgt. Evans said that he was threatened by the proximity of Mr. Houston who was within a few feet of him. Sgt. Evans says that he may have taken a couple of steps towards Mr. Houston and in any event he could not go backwards because he was up against the cruiser. Sgt. Evans says that he was faced with a person who was too close and was drunk and when told to move back would not comply. The officer says he can't move away from the police car without being in a more vulnerable position. Officer Evans said that he tried to defuse the situation by moving Mr. Houston back and used minimal force for that purpose by putting his hands up on Mr. Houston's chest and trying to walk him back. When Mr. Houston knocked his hands away and touched his body, Sgt. Evans considered that an assault.

Sean Paulitzki

[51] Sean Paulitzki is a police officer with Saugeen Shores Police Service and has been a police officer since 1999.

[52] He also became involved in the incident in question on 27 July 2013 at approximate 2:08 AM.

[53] Officer Paulitzki had attended to support Officer Cook and Sgt. Evans and was present when Mr. Houston approached.

[54] Officer Paulitzki describes Mr. Houston as being right in the face of Sgt. Evans. He refused to move and was not happy with what the officer said, and said that they had their space. He was cautioned repeatedly to leave the area by both Officer Paulitzki and Sgt. Evans.

[55] Mr. Houston's demeanor was very aggressive and he was under the influence of alcohol with a strong odour of alcohol on his breath, bloodshot eyes and some slurred speech area. He was aggressive in nature and glaring at them when they told him to leave.

[56] Sgt. Evans decided to move Mr. Houston back and pushed him with minimal force on the chest. This was done because Mr. Houston was in the personal space of the officers and officer safety was at stake. He was imposing himself on the officers when they were doing their duty. Mr. Houston was very aggressive, loud and demanding.

[57] After Sgt. Evans moved Mr. Houston back Mr. Houston swung his arms and tried to push Sgt. Evans back. When that happened Officer Paulitzki and Officer Cook moved forward to restrain and arrest Mr. Houston for assault.

[58] Mr. Houston said that it would take more than the three of them and in the struggle that ensued he threw a number of wild overhand punches. When Officer Paulitzki tried to restrain Mr. Houston, it quickly became apparent that Mr. Houston was a very large solid individual. Mr. Houston was ordered to stop resisting by both Officer Paulitzki and Sgt. Evans and this was said repeatedly. However, Mr. Houston continued to resist and fight. Physical restraint was not working and he heard Sgt. Evans indicate that the taser was going to be used. After use of the taser Mr. Houston was finally subdued. Two sets of handcuffs were linked together behind his back to restrain his arms because his body and arms were so large.

[59] Other officers attended and Mr. Houston was placed in a cruiser.

[60] Officer Paulitzki noted that a bottle had been thrown and smashed. He noted that there was a large crowd watching the confrontation.

[61] At 2:53 AM approximately they were back at the station dealing with Mr. Houston. Mr. Houston's attitude was still argumentative and he asked what proof they had that he'd been consuming alcohol.

[62] Officer Paulitzki had a minor bruised hand and scraped knuckle and a small gash to his forehead.

[63] Officer Paulitzki said that he intervened because Mr. Houston had assaulted a police officer.

[64] In cross-examination Officer Paulitzki noted that Mr. Houston had approached them and they had no reason to engage with him. He also noted that it was easy to get information as to where they were going.

[65] Officer Paulitzki, who is a breath technician, noted that in his opinion Mr. Houston was under the heavy influence of alcohol at the time, given the strong odour of an alcoholic beverage on his breath, and that his eyes were bloodshot and he had a slight slur to his speech.

Jamie Houston

[66] Jamie Houston testified in his own defence. He is 47 years of age and lives and works in the Paisley. He is a carpenter by trade.

[67] On 26 July 2013 he had been working on a house in Paisley. There was some time pressures in getting the work done and he and his crew worked late until approximately 8:30 PM. There was no alcohol consumed when they were working. At the end of the day their client presented them with a 15 pack of beer which they took to Jamie Houston's residence.

[68] Between 8 PM and 11:30 PM they consumed approximately three beers each. Around 11:30 PM they went to Joe Leifso's house and talked about going to Port Elgin for something to eat. Joe Leifso's girlfriend Amber agreed to drive them.

[69] Mr. Houston, Joe Leifso, Amber, and Cody Krause went to Port Elgin. They arrived at approximately midnight. No restaurants were open, so they decided to go to the Queen's Bar and Grill. Amber stayed in a motor vehicle in the back parking lot behind the Queen's.

[70] In the Queen's they got separated. This happened after Mr. Houston had bought round of beers for himself, Cody and Joe. He did not see much of Cody after that.

[71] Later somebody came up to him and said that his "buddy" was in a police car. He thought this might be Cody and his evidence is that he was concerned about Cody because he knows his mother and felt responsible for him. He wasn't with Joe at that point.

[72] He walked out onto the sidewalk and approached the police and asked what they were doing with Cody and where was he going. He got within 3 to 4 feet of the police officers. He thought he was speaking in a decent voice and was not yelling and screaming. He can't remember word for word what was said.

[73] He remembers, however, that Sgt. Evans responded by telling him to stand back. Mr. Houston says he then threw his arms up and said how far back. Mr. Houston's evidence is that he did in fact step back. He then says that Sgt. Evans came towards him and was yelling at him and gave him a push. The push moved him even further back. The push was with two hands and was directed to his upper body. His memory is that immediately after that someone grabbed his arm and he remembers shaking his arm to get rid of whoever was grabbing at it.

[74] Mr. Houston says that he was saying: "No, no, you got this wrong". He also testifies that he said: "Leave me alone", by which he meant he did not want to be pushed around. Nevertheless, the police came at him and attacked him from both sides.

[75] Mr. Houston then describes the physical confrontation with the police officers in a similar fashion to the way in which the officers described it. He has a memory that he was not resisting at certain points and was saying that you got this all wrong. He does not remember flailing his arms. He does remember being concerned about what was happening and that he thought he should defend himself.

[76] There were photographs tendered as exhibits which showed burn marks where the taser was pressed against his body.

[77] He also remembers when he was on the ground that he had trouble breathing and that it was then that there were knee strikes to his ribs.

[78] He says that he told Officer Paulitzki at the hospital that he wanted a Breathalyzer so they would know he was not drunk. It should be noted that officer Paulitzki does not remember any request for the use of a Breathalyzer.

[79] Mr. Houston says at the bar he had 2 beers and perhaps three-quarters of a third. In all, on the evening in question, his evidence is that he had 6 beers at the most.

[80] In cross-examination, Mr. Houston agrees that he was 3 to 4 feet from the police officers and that he heard Sgt. Evans say that he was to step back. It is at that point he says that he put his arms in the air.

[81] Mr. Houston confirmed that he is 5'9" tall and weighs 275 pounds.

[82] Mr. Houston says that he did not feel drunk. Although he conceded that he was probably over the "tolerance level" even before he got to Port Elgin, meaning that he should not have been driving motor vehicle.

[83] Also in cross examination Mr. Houston says that he was flailing at the officers to get them to stop restraining him and that if they left him alone he would have stopped resisting. He also agreed that the police treated him properly at the hospital and the police station.

Joseph Leifso

[84] Joseph Leifso was called by the defence.

[85] He is 27 years old and at the relevant time was employed by Houston Carpentry as a subcontractor.

[86] He confirms that on the day in question he worked that day in Paisley with Mr. Houston and Cody Krause. They finished around 8 PM and the home owner gave them some beer. He says he had 3 beers from a 15 pack at Jamie Houston's residence. They then went to his place and decided to go to Port Elgin for food and his girlfriend Amber drove. They arrived in Port Elgin around 11:30 PM. The restaurants were all closed so they went into the bar.

[87] After they had been in the bar for a while, Cody decided to start an altercation and took his shirt off. One of the bouncers told him to leave and Mr. Leifso walked with him to the door. As soon as they walked out the door, the police grabbed Mr. Krause and arrested him. Mr. Leifso then told "Housie" what had happened.

[88] Mr. Leifso then says that the accused came out and walked over to the police and asked what had happened. Mr. Leifso is somewhat confused about the distances but says that he was 5 or 6 feet back from Mr. Houston and Mr. Houston was about 5 feet from the police.

[89] At that point, Mr. Leifso turned his head away because he saw some other action and when he turned back, he saw the police officers on Mr. Houston, with the accused half up and half down and the police officers came behind him and hit him in the back of the head twice and took him to the ground and the police officers started kneeing him in the ribs. Mr. Leifso then turned back to a bouncer to ask him a question and when he looked again he saw Mr. Houston on his knees. Mr. Leifso says that he then left and later went to the police station with Amber.

[90] Mr. Leifso says that on the night in question he had consumed 7 or 8 beers.

[91] In cross-examination. Mr. Leifso says that he could hear Mr. Houston saying at least twice how far back and that his voice was fairly loud. He agrees that Mr. Houston was speaking louder than normal.

[92] Mr. Leifso says that he was not trashed, but concedes he was under the influence of alcohol.

ARGUMENT - DEFENCE

[93] The thrust of the defence argument is that Mr. Houston was not interfering with the police and did not touch Sgt. Evans first. Indeed, all witnesses agree that Sgt. Evans touched the accused first. The question then is whether Sgt. Evans could legally touch the accused. In other words was that application of force lawful. If it was not lawful then it was an assault and Mr. Houston could defend himself. The defence argument is that the arrest of Mr. Houston had to be pursuant to section 495 and if he had defended himself then he had not committed an offence and could not be arrested under section 495. This means that he could resist the arrest.

[94] The defence argues that the police were all in the same space and should have the same version of what occurred, but they are not consistent and therefore the evidence of the officers should be discounted.

ARGUMENT - CROWN

[95] The Crown argues that all of the police officers described a similar confrontation with the accused and that he had been told to step back. They were at that time in the lawful execution of their duties in that they were dealing with the arrest of Cody Krause. All three police officers say that Mr. Houston's response to their request that he step back was that: "You have your space."

[96] The Crown then argues that the police officers felt threatened by Mr. Houston's closeness and that Sgt. Evans used minimal force to create space. This occurred after multiple demands that Mr. Houston moved back. All three police officers describe the force used by Sgt. Evans as minimal.

[97] The reaction by Mr. Houston was to assault Sgt. Evans. When he was being arrested for that offence it is abundantly clear that Mr. Houston resisted his arrest.

[98] Further the Crown argues that the accused was drunk and was in a public place and that the evidence is clear that he caused a disturbance.

ANALYSIS

[99] It is important to consider the evidence.

[100] First with respect to the civilian Crown witnesses, Mr. Donnini was a good witness and was not shaken in cross examination. Mr. Planz was highly descriptive in his evidence, and was perhaps overly enthusiastic in his description of the punch thrown by Mr. Houston in the first instance. Mr. Planz's evidence however is consistent with the evidence of Mr. Bernini. The salient feature of their evidence was that that Mr. Houston was aggressive and loud and was encroaching upon the officers' personal space and their ability to perform their functions post arrest of Mr. Krause.

[101] With respect to the officers' evidence, it is suggested by the defence that the evidence of the police officers should be discounted because they have different memories of some aspects of the confrontation, notwithstanding that they were all in close proximity of each other and that the event was localized. I do not agree. Each of the officers had an independent view of the event and their description of what they saw varied according to their individual perspectives. Also, the event was fluid and dynamic and happened very quickly. Indeed, their slightly different recollections lend support to their credibility and general reliability. The evidence of the officers on the main features of the confrontation is consistent with each other and with the civilian witnesses.

[102] The evidence of Mr. Houston is self-serving and not consistent with the external facts. He was intoxicated and there are significant gaps in his memory.

[103] The evidence of Joe Leifso is of limited value in that he turned away at crucial times and did not see what was happening.

[104] In considering the evidence, it is important to recognize some significant factors.

[105] The first is that this event was taking place shortly after 2 AM on a public street in downtown Port Elgin, with the bar crowd leaving the downtown bars. This made for a crowded and volatile situation fueled by alcohol. This is evidenced by the crowd reaction in terms of chanting and yelling and throwing of at least one beer bottle. This placed the officers on high alert in terms of how to control the situation and deal with the persons that were engaging with them.

[106] The second factor is that both Cody Krause and Jamie Houston were significantly intoxicated. I accept the evidence of the officers that Mr. Houston was drunk. In his own evidence he concedes that he had at least 5 beers and possibly 6. These were consumed over a relatively short period of time. His behaviors as described by all of the witnesses to varying degrees were that he was, at a minimum, persistent and loud. Some of the witnesses described him as being aggressive and threatening. It is interesting to note that his demeanor in the witness stand was mild and calm. This contrast can best be accounted for by alcohol consumption. His judgment was significantly impaired on the night in question and that is consistent with the evidence of the officers that he was drunk. It is important to note as well that Mr. Houston's memory of what occurred is spotty. This also suggests impairment by alcohol. Indeed Mr. Houston agrees that he should not have been driving a motor vehicle that night.

[107] The third factor is the size of Mr. Houston. He is a very large and compact man weighing approximately 275 pounds. He was formidable force on the night in question, as is evident by all of the evidence.

[108] With those factors in mind, it is necessary to consider the position of the police officers. They had made an arrest for public intoxication. The basis for that arrest is not challenged. They were discussing who was going to do what next, and in doing so they were engaged in the execution of their duty. Their duty included properly processing Mr. Krause. They were interrupted in that process by the approach of Mr. Houston.

[109] The evidence of the Queen's Bar and Grill personnel was that Mr. Houston approached rapidly, with a purpose and was loud and demanding. The officers did not approach him and as one of them said they had no reason to engage with Mr. Houston.

[110] The evidence clearly describes Mr. Houston as being persistent and not following directions. The officers said to him that they did not want to deal with him and that he should step back so they can get on with their work. He did not accept that information. He remained close to the officers and on his own evidence was only 3 to 4 feet away, and on the evidence of others was much closer.

[111] Sgt. Evans decided that it was necessary for officer safety reasons and to permit the completion of their duties with reference to Mr. Krause that Mr. Houston be moved away from their immediate presence. He did so by applying minimal force to Mr. Houston and trying to walk him backwards. Mr. Houston reacted by knocking his arms aside and touching the officer in the shoulder. This amounted to an assault on Sgt. Evans, albeit of no great moment in and of itself. Nevertheless, the two supporting officers decided that it was necessary to restrain and arrest Mr. Houston for this assault. Mr. Houston clearly resisted the arrest and events unfolded as described.

[112] I accept the evidence of the two Crown civilian witnesses and the police officers. Taken as a whole it details what happened and is consistent throughout. I do not accept the evidence of the accused. It is clear that he was loud and aggressive and I hope not his usual self. His evidence is not exculpatory.

[113] There are however legal questions that arise out of this set of facts.

[114] The first question is did Sgt. Evans have the right to apply force to Mr. Houston. In my view, he did. There are two reasons for saying so.

[115] The first and foremost reason is that Sgt. Evans was effectively acting in self-defence in terms of the threatening behavior of Mr. Houston. This action on his part was justified under section 34 of the Criminal Code, which in my view applies retrospectively as it does not create an offence or proscribe a penalty. That section states:

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.

[116] Under all of the circumstances it was reasonable in my view for Sgt. Evans to respond to the threat presented by the accused by pushing the accused away. This was an act of self-defence that was rational, reasonable and proportional.

[117] Secondly, arguably Sgt. Evans had the protection of section 25 of the Criminal Code:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[118] It seems to me that the police officers were impeded in performing their duty by the intervention of Mr. Houston and that the course of action taken by Sgt. Evans was a necessary one to allow them to complete their task. Section 25 allows police officers to use necessary force in the execution of their duty. In this instance the use of force was absolutely minimal and was necessary to allow the officers to complete their duties with reference to Mr. Krause.

[119] This is akin to crowd control in an ordinary sense and in my view is completely consistent to the circumstances of this case.

[120] I note that this section does not permit a police officer to use as much force as necessary to generally carry out the lawful execution of his duty. Thus, while an officer has a duty to investigate crimes and question citizens, this section does not give him the right to detain the person or to use force for that purpose short of arrest: R. v. O'Donnell; R. v. Cluett (1982), 3 C.C.C. (3d) 333, 55 N.S.R. (2d) 6, 9 W.C.B. 42, 1982 CLB 49 (C.A.), reversed, with respect to Cluett, on other grounds, [1985] 2 S.C.R. 216, 21 C.C.C. (3d) 318, 21 D.L.R. (4th) 306, 15 W.C.B. 87, 1985 CLB 172 (7:0). Arguably however, when another person has been arrested and an officer is attempting to process that person then force may be necessary in exigent circumstances to complete that task if the process is interrupted by a person outside that immediate transaction.

[121] Finally it should be remembered that the accused was obstructing the officers and in that sense was subject to arrest for committing that offence. Although not articulated by the officers, as it was overtaken by what was seen as an assault, the reality is that the officers had reasonable and probable grounds to arrest Mr. Houston for that offence in any event.

[122] The reaction of Mr. Houston to the push by Sgt. Evans was exaggerated and assaultive. Were the police officers responding properly by then restraining Mr. Houston and arresting him for assault? They needed to have reasonable and probable grounds to believe that an offence had occurred. On the facts of this case I accept they did have those reasonable and probable grounds to believe that the accused had assaulted Sgt. Evans.

[123] It can be argued that the reaction of Mr. Houston was instinctive only and that it was more of a shrugging off of Sgt. Evans. But given the context in which this was occurring, that is to say with Mr. Houston being drunk, aggressive, threatening and very large, and with the crowd that had gathered, and the time of night, the officers had both the necessary subjective, but also objective basis for thinking that Mr. Houston had committed the offence and that it had to be dealt with promptly.

[124] Mr. Houston did indeed assault Sgt., although it certainly was a technical assault only. It follows that he was properly arrestable for that offence and was resisting that arrest.

[125] Finally, in my view Mr. Houston was drunk, was in a public place and he certainly caused a disturbance.

[126] I should mention that the evidence does not actually show any assault on Sgt. Evans during the arrest and accordingly the Crown has not proven Count Number 2 on the Information.

CONCLUSION

[127] In summary, for all of these reasons, I find that the Crown has proven beyond a reasonable doubt Counts 1, 3, 4 and 5 on the Information and a finding of guilt will be entered with respect to same. Count 2 is dismissed.

Released: 9 December 2013

Signed: "Justice Brophy"