Ontario Court of Justice

Date: 2016-07-07

Court File No.: Sudbury 152326

Between:

HER MAJESTY THE QUEEN

— AND —

LAWRENCE HALMAN

Before: Justice Randall W. Lalande

Heard on: June 13 & 27 and July 7, 2016

Reasons for Judgment released on: July 7, 2016

Counsel:

• Kevin Ludgate, for the Crown
• Michael Haraschuk, for the accused Lawrence Halman

LALANDE J.:

1: INTRODUCTION

[1] Mr. Lawrence Halman is charged on a two count information. It is alleged that on July 18, 2015, he assaulted Constable Jordan Mills, a peace officer, in the execution of his duty. It is also alleged that on the same date, he obstructed Constable Mills, a peace officer, in the execution of his duty.

[2] On July 18, 2015, the accused, Mr. Halman and his son Steven Halman resided at 181 Pine Street, apartment #3, Garson. Mr. Halman's mother-in-law, Theresa Belanger resided in the same building across the hall in apartment #2.

[3] Police received two separate 9-1-1 calls on July 18, 2015. Mr. Halman placed the first call at approximately 7:38 p.m. According to Constable Mills, he was advised by dispatch that a domestic dispute was taking place between Mr. Halman's next door neighbours who reside at 173 Pine Street. Police attended further to that call and investigated. In his evidence, Mr. Halman expressed dissatisfaction that police did not speak with him after they concluded their investigation at 173 Pine Street.

[4] The second call which led police to attend at Mr. Halman's residence was made by Mr. Halman's mother-in-law Theresa Belanger at about 8:59 p.m. Officer Mills arrived in response to that call at 9:03 p.m. He stated he understood from dispatch that a dispute was underway between neighbours at 181 Pine Street and 173 Pine Street. It is further to police responding to investigate the second call that Mr. Halman was arrested.

[5] Mr. Halman's neighbours, Tammy and Stephen Mroczinski who reside at 173 Pine Street were, according to Officer Mills, upon his arrival, in their front yard near or at the fence dividing their property with the Halman property at 181 Pine Street. They were arguing with Mr. Halman, his son Steve and his mother-in-law Theresa Belanger who were also outside at or near the front steps of their residence.

2: OVERVIEW

[6] Acting Sergeant Matthew Hall arrived at 181 Pine Street almost at the same time as Constable Mills. Generally, his evidence is in sync with Constable Mills' evidence as it relates to the parties from both residences being agitated, argumentative and loud.

[7] Constable Mills described the scene as a "dynamic situation" which appeared to be fueled by the fact that police, further to having attended in response to the first 9-1-1 call had, especially to the displeasure of Mr. Halman, decided to take no action or lay charges. In particular, this appeared to be a main factor causing Mr. Halman and to a large extent his son, Steven Halman and his mother-in-law, Theresa Belanger to become and remain upset.

[8] Soon after their arrival in response to the second 9-1-1 call, an effort was made by police to calm both sides down. Both sides were told to retreat to their respective residences. This was somewhat effective except that Mr. Halman's son Steven Halman, came down the front entrance stairway of 181 Pine Street just as his father was entering or about to enter the residence.

[9] Steven Halman was yelling at police. According to Officer Mills in response to efforts by police to calm him down he responded by saying "F--- you…What are going to do, arrest me?" He stood directly in front of Officer Mills at close distance estimated to be about two feet when he was yelling these remarks. Officer Mills said that he felt that Steven Halman's conduct was, to an extent, threatening.

[10] Acting Sergeant Hall said Steven Halman was yelling as soon as he exited 181 Pine Street and looked like a person who was on "mission". He ordered Steven Halman back inside the residence. There was no compliance. In response, Steven Halman yelled "F--- you". Acting Sergeant Hall testified Steven Halman was given ample opportunity to calm down and to stop misbehaving. Because he did not do so, Acting Sergeant Hall decided to arrest him for "breach of the peace". In order to effect the arrest Officer Hall went to grab Steven Halman's right arm. Steven Halman pulled away and may have tried to leave. He was immediately apprehended and taken to the ground by both Officer Hall and Officer Mills. Later in his testimony, Officer Hall said he felt that Steven Halman, although breaching the peace, was upset and definitely needed to cool off. Ultimately no criminal charges were laid against him.

[11] In cross-examination Officer Hall was questioned about Mr. Halman's behaviour. He described Mr. Halman's behaviour as confrontational, agitated and belligerent. He agreed that Mr. Halman's behaviour was not dissimilar to his son's behaviour, however, he also said that Steven Halman was warned but refused to stop misbehaving. He looked like a person on a mission. He would not follow directives. He was yelling and using foul language. He was, according to Officer Hall, essentially causing a disturbance. Constable Mills also said that he felt threatened because Steven Halman came right up to him at a distance of about two feet while yelling.

[12] Officer Hall also indicated that in addition to the presence of Mr. Halman, his son Steven Halman, his mother-in-law Theresa Belanger and the neighbours, he also observed as many as three or four other persons in the neighbourhood outside their homes. According to Officer Hall, it appeared that others were being attracted by the noise and presence of police.

[13] Mr. Halman did not provide much evidence about his son's actual arrest. He did say that police did tell his son to be quiet and relax. In response to this his son used the "f—-" word and said among other things "arrest me". He said his son did not threaten police. He further stated that police had asked his son to go inside but that his son did not listen. He also confirmed that his son pulled away from police and was then grabbed.

[14] Theresa Belanger said that Steven Halman was using foul language which she said "went on and on". She said that police told Steven Halman to stop but he did not. She also indicated that when Mr. Halman walked away (presumably as directed by police), Steven Halman was still shooting his mouth off when police were telling him they were going to arrest him. At some point she said that Officer Hall stated: "I've had enough, you're under arrest". He then brought Steven Halman down.

[15] Constable Mills and Acting Sergeant Hall were both involved in keeping Steven Halman sufficiently subdued on the ground in order to handcuff him. While crouched over Steven Halman, Constable Mills said that he felt someone pull at him from behind. He said that hands were grabbing at the back of his vest. He turned around. The person was Mr. Halman. Officer Mills pushed him away and told him that he had no right to touch him during an arrest.

[16] Acting Sergeant Hall said he was positioned such that he could see Mr. Halman quickly come down the stairs in front of the residence toward Officer Mills. He saw Mr. Halman grab the top edges of Officer Mills' vest to pull him off or away. He said Mr. Halman succeeded because Officer Mills had to disengage himself from what he was doing in order to deal with Mr. Halman.

[17] Mr. Halman testified that he went toward his son as his son was on the ground being dealt with by both officers. As he got off the steps (presumably the last step) he lost his balance and put his hands on Constable Mills' shoulder. He pressed down in order to regain his balance and get upright. He denied ever pulling on Constable Mills' vest.

[18] In cross-examination, Mr. Halman spoke of a lower back injury he sustained at work in 1989 and an injury involving a broken leg just above the ankle he sustained in 1992. He currently suffers from an ulcerated toe. The extent to which his previous injuries and ulcerated toe contributed to him losing his balance (as he said he did) remains uncertain. Insofar as the toe goes, he did acknowledge receiving a temporary insole sufficient to accommodate him while walking. This temporary insole was obtained prior to July 18, 2015.

[19] Theresa Belanger told a bit of a different story. She said that Mr. Halman turned and lost his footing. This, according to her, resulted in him falling onto Officer Mills. She further said that she did not see Mr. Halman ever place his hands on Officer Mills. The evidence of Theresa Belanger is of little help on the issue of Mr. Halman coming into contact with Constable Mills.

[20] From the overall evidence I find that Mr. Halman downplayed the extent to which he was frustrated at the time that police responded to the second 9-1-1 call and attended at his residence. He made an effort to minimize his involvement. At times he almost described himself as calm. This is not consistent with the general gist of the evidence including the evidence of Theresa Belanger and the sound of his voice in the CD audio recording played in court.

[21] At one point Mr. Halman stated "I didn't do the yelling, I may have raised my voice". This is not accurate nor reflective of his general demeanour throughout the entirety of the incident.

[22] In my view there are credibility issues impacting Mr. Halman's testimony. It is not to say that he is to be disbelieved in all respects of his evidence. It is, however, obvious that at times he has sought to adjust his evidence in order to provide responses favourable to himself.

[23] I do accept Constable Mills' version of events in terms of having had to disengage from assisting Officer Hall as a result of Mr. Halman grabbing or pulling at him. His version of what occurred is consistent with the evidence of Officer Hall.

[24] Defence counsel in his submissions made reference to omissions or discrepancies in duty notes respectively taken by Constable Mills and Acting Sergeant Hall. As counsel know, police notes do not constitute evidence as such but may be used by police officers to assist them to refresh their memories when testifying. Details contained in the notes may vary depending on the individual officer or the circumstances or an investigation. On this point I do not disagree with the Crown's comment that not everything is written and that is not unusual for more detail to be flushed out during a trial.

[25] In these circumstances I am satisfied that in the greater picture Officer Mills and Officer Hall gave similar evidence. Discrepancies in their evidence as well as omissions in their notes did not, in my view, detract from their overall credibility.

[26] In hearing the totality of the evidence I am satisfied that Mr. Halman approached Officer Mills from behind. He did so in order to interfere with the arrest of his son. It is rather telling that at no time subsequent to the incident did he offer an explanation to either officer that he approached and simply lost his balance. It is obvious from all of the circumstances that he approached Officer Mills from behind for a reason. The only viable reason for him to approach as he did was to object or to somehow interfere with the arrest of his son Steven Halman. The evidence does not support the finding that Mr. Halman accidentally approached Officer Mills from behind. To the contrary, the evidence supports the fact that he meant to be there. Essentially the totality of the evidence militates against any suggestion that Mr. Halman's interference with Constable Mills was accidental.

[27] I am not satisfied Mr. Halman ever intended to assault Officer Mills. There may have been an unwanted touching but the essence of that conduct is fully captured within the context of the related charge of obstruct.

[28] Mr. Halman's intention was clearly not to commit an assault within the meaning of section 270(1)(a) of the Criminal Code. The purpose of any intended application of force on the part of Mr. Halman was geared to interfere or obstruct Constable Mills while he was in the process of arresting Steven Halman.

[29] There is no requirement that Mr. Halman's interference with Constable Mills had to go on for a long time in order to establish obstruction. The facts of this case are distinguishable from a case involving a minimal or brief effort to interfere with or obstruct a police officer. Further, this is not a case of a person acting upon a lapse of judgment which was quickly corrected.

[30] In these circumstances, Mr. Halman purposely placed his hands in the area of the top of Officer Mills' vest from behind. The only reasonable inference is that he intended to interfere with the arrest. Constable Mills had to disengage himself from assisting Officer Hall. In response to the interference, Officer Mills turned and pushed Mr. Halman away while telling him that he had no right to do what he did. Mr. Halman's conduct crossed the line and in all of the circumstances constituted an obstruction within the meaning of section 129(a) of the Criminal Code.

[31] Although there is no actual offence of breach of the peace in the Criminal Code, section 31 empowers peace officers to arrest and detain persons involved in a breach of the peace.

[32] What constitutes a breach of the peace must be determined on the facts of each case. There is no boiler plate scenario to work from and deference must be afforded to police officers who often face exigent and unforeseen challenges during the currency of their work.

[33] It was obvious in this case that police attended in the midst of a heated, stormy discord between neighbours. It is reasonable to assume that the scenario involved an element of unpredictability. The objective of police upon arrival was to calm matters down.

[34] Police attempted to calm matters down and to an extent succeeded except for Steven Halman's behaviour which served to fuel matters in an opposite direction. The following evidence is relevant to the issue of whether Steven Halman was breaching the peace:

• Upon arrival Constable Mills described the scene as a dynamic situation. This observation had to do with the yelling and shouting between the residences of the two neighbours;

• Steven Halman made his way directly toward the officers. Officer Hall described him as a "man on a mission";

• Steven Halman was yelling at police. He was using foul language and challenged police to arrest him;

• Steven Halman stood directly in front of Officer Mills at a very close distance estimated to be two feet. To some extent, Officer Mills said that he felt threatened;

• Steven Halman would not follow directives and in all respects remained non-compliant and loud. Officer Hall said he noticed other neighbours outside who appeared to be attracted by the noise and presence of police;

• Mr. Halman (the accused) confirmed that his son refused to co-operate with police. He said that his son "did not listen" and "pulled away from police";

• Theresa Belanger, although not providing entirely reliable evidence, did say that Steven Halman kept shooting his mouth off when police were telling him they were going to arrest him;

• Officer Hall indicated that Steven Halman was given sufficient opportunity to stop misbehaving but refused to do so.

[35] The facts of this case differ substantially from the facts in R. v. Januska decided by Justice Fleury in the Ontario Court (General Division). In that case, police had approached a vehicle in which the accused was a passenger. Police began to ask questions of the occupants about what they were doing there. The accused was asked to step out of the vehicle. As he was being questioned by the officers he became agitated and noisy. He was placed under arrest subsequent to which he was searched. Items were found which caused police to think that he might be involved in the drug trade. He was taken to headquarters and strip-searched. Ultimately Judge Fleury found the arrest and resulting searches to be illegal and the evidence was excluded under the Charter.

[36] In this case, Steven Halman was not simply being annoying or disrespectful. His conduct was in no measure instigated by police. The investigation was not singling him out as a target. By all accounts he intended to berate police and misbehave to the point of interfering with their attempt to calm matters down in order to proceed with their investigation. To some extent, it was necessary for police to effectively remove Steven Halman in order to be able to continue in their response and investigate the reason for the call from dispatch.

[37] It should also be noted that a tumultuous and noisy situation in which Steven Halman had participated was already manifesting itself prior to arrival of police. When police attended, they acted in good faith in dealing with all those involved. Steven Halman presented additional challenges. His boisterousness and forcefulness was not called for. Attempts to get him to desist were not successful.

[38] In all of the circumstances, police had a reasonable basis to arrest Steven Halman for breach of the peace. Eventually and once brought to police headquarters, he did calm down and was released without being charged.

3: ANALYSIS

[39] I do not accept Mr. Halman's evidence as it relates to him losing his balance, leaning toward and pressing down on Officer Mills as he was assisting in Steven Halman's arrest. I do not find that Mr. Halman's evidence, coupled with other evidence or taken alone, raises a reasonable doubt.

[40] I do not find the evidence of Theresa Belanger to be reliable. Her evidence is not consistent with the evidence of either officer or Mr. Halman himself. Her evidence is of little assistance to Mr. Halman in my overall assessment of Mr. Halman's conduct giving rise to the charges.

[41] In arriving at a decision on the issue of guilt I have applied the credibility analysis as set forth in the seminal decision of R. v. W.(D.) decided by the Supreme Court of Canada in 1991. Having considered the totality of the evidence and for reasons above-noted I am not convinced beyond a reasonable doubt that Mr. Halman has committed the offence of having assaulted a police officer engaged in the execution of his duty. I am, however, convinced beyond a reasonable doubt that Mr. Halman did wilfully obstruct Constable Mills, a peace officer engaged in the execution of his duty.

4: DECISION

[42] In providing these reasons today, I have not referred to all of the evidence heard. I have, however, in arriving at my decision considered all of the relevant evidence including evidence referred to by counsel in their helpful submissions.

[43] For the above reasons my verdict is as follows:

• Mr. Halman is found not guilty of count 1, namely having assaulted Constable Mills in the execution of his duty contrary to section 270(1)(a) of the Criminal Code;

• Mr. Halman is found guilty of having obstructed Constable Mills in the execution of his duty contrary to section 129(a) of the Criminal Code.

Released: July 7, 2016

Signed: Justice Randall W. Lalande