Indexed as: R. v. Proulx. Between Her Majesty The Queen, Applicant, and Guy A. Proulx, Respondent. [1988] O.J. No Action No.

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1 Page 1 Indexed as: R. v. Proulx Between Her Majesty The Queen, Applicant, and Guy A. Proulx, Respondent [1988] O.J. No. 890 Action No. 1650/87 Ontario District Court - Algoma District Sault Ste. Marie, Ontario Stortini D.C.J. February 5, 1988 Charges: 118(a), 246(1)(a), 246(1)(a), 85 and 243.4(1)(a) C.C.C. D. Walker, for the Crown. Y. Renaud, for the Accused. STORTINI D.C.J. (orally):-- Pursuant to the request of the accused based on s of the Criminal Code an order was made directing that the accused be tried before a judge who speaks the official language of Canada that is the language of the accused, or both the official languages of Canada. In this case the accused and several witnesses testified in the French language and argument was presented by counsel in both languages. The accused understands English and because of the lateness of the hour and the need to deliver judgment today, I am delivering the judgment in the English language today in order to allow the out of town witnesses time to return home. It has been a pleasure for me to preside over a bilingual trial, and I wish to compliment both counsel for a high level of competence. We are all striving for perfection and trying to do our best. The accused is charged with five counts including resisting arrest (s. 118(a) C.C.), assaulting a peace officer (2 counts) (s. 246(1)(a) C.C.), possession of a weapon (a rock) (s. 85 C.C.), and threatening (s (1)(a) C.C.). All of these events arise out of an incident which occurred on

2 Page 2 April 18, 1987, at the Improvement District of Dubreuilville, in Algoma District. This is a small lumber industry community north of Sault Ste. Marie. It is part of the patrol area of the Wawa O.P.P. detachment. The incidents giving rise to the charges involve the accused and two O.P.P. officers, Constables Nickle and Mageau. The same two officers were involved in an incident with the accused in November of 1986 wherein the accused was charged with causing a disturbance and resisting arrest. The accused was convicted of these offences in April of 1987 shortly before the incidents presently in question. Following his arrest in November of 1986, the accused lodged a complaint of physical violence against the O.P.P. officers. Those matters are of no concern to this tribunal except as background information which is of assistance in understanding the inter-relationships between police and citizen on the night now in question. On Good Friday, April 17, 1987, the accused and Steve St. Amand did some drinking together in Dubreuilville. This occurred prior to the arrival of the police patrol in Dubreuilville. The accused, St. Amand and several other witnesses state that while the accused had been drinking on the evening in question he was not drunk. Some crown witnesses are of the opinion that he was intoxicated. The treating-nurse and the ambulance driver share the latter opinion, however, they observed the accused after his physical encounter with the police and a police baton. The photographic exhibits confirm the product of a number of blows executed by means of the police baton which is a 28-inch piece of hickory wood usually carried in a cruiser. The evidence is abundantly clear that prior to the arrival of the police and until the physical encounter between the accused and Constable Nickle, the accused had caused no problems to himself or anyone else. This is confirmed by the police, the accused's friends and the proprietor and bartender of Le Petit Quebec, a restaurant frequented by the accused on the evening in question. There is no evidence of stupefaction by alcohol to the point where the accused had lost the capacity to prevent himself from causing injury to himself or be a danger, nuisance or disturbance to others. There is no evidence of risk to the safety of the accused or others prior to the arrival of the police cruiser on Rue des Pins, Dubreuilville. At one point on the evening in question, around midnight, the accused and St. Amand were walking in a northerly direction along Rue des Pins toward the restaurant Le Petit Quebec. There are no sidewalks there and the two young men were walking along the east or right-hand side of the road. They were overtaken by the patrol car driven by Constable Mageau in which Constable Nickle was a passenger. The two officers recognized the accused. Constable Nickle states that as the cruiser veered to go around the pedestrians he heard the accused say, "Fuck off." Constable Mageau stopped the cruiser and backed up to where the accused and St. Amand were. Mageau states that he asked the accused, "What's your problem?" The accused and St. Amand insist that when the accused was asked by the officer what he had said, the accused replied that he had said "fuck all." Nickle states that he observed signs of alcohol consumption and told the accused to stay out of public places and to stay out of trouble. The accused insisted that he was not causing any problems and told the officers to leave him alone and to stop picking on him. Later on the two officers again saw the accused and St. Amand attend at Le Petit Quebec Restaurant. The restaurant had closed for the night and the two men proceeded to a popular street meeting place called Les Quatre Coins, the Four Corners. The accused and St. Amand then headed in the direction of the accused's residence. Constable Nickle told the accused to go home and stay out of public places and gave him five minutes to go home or he would be charged with being intoxicated

3 Page 3 in a public place. The cruiser then followed the two men to the accused's residence. The accused walked onto his lawn and began yelling and waving his arms at the police officers. The two officers returned to the police sub-station in Dubreuilville and held a telephone conference with the acting Corporal, Kienapple. The two officers left the station and saw the accused, St. Amand and two other persons in the neighbourhood. Constable Mageau called to the accused to come over as he wanted to talk to him. The accused and his witnesses say that the officers had their batons in their hands at that time. The accused walked away quickly and then began to run. The officers pursued him in the cruiser. The accused went down a hill. Constable Nickle went after the accused on foot armed with his portable radio, flashlight and baton. Constable Mageau proceeded to encircle the area by cruiser. The accused states that because of the November incident and the earlier conversations he was afraid of being struck by the baton. He hid near a garage at the bottom of the hill for a few minutes. When he emerged he was confronted by the officer. When he saw the officer approaching he picked up a stone from the ground and kept telling the officer to "back off" and leave him alone. The two men conducted a stand-off for some minutes. Whenever the police officer advanced the accused would raise his arm and hand holding the stone. The officer says that when the accused approached, he would back away. At one point the officer picked up a tree branch from the ground and threw it at the accused. When the accused put up his hands to shield himself, the officer delivered a baton blow to the accused's rib cage. Several more baton blows were delivered. The officer states that the accused still held the stone in his hand and at one point some contact was made of a glancing nature while the two were scuffling. The accused at no time threw the rock at the officer although he had plenty of opportunity and time to do so. He states that he dropped the rock when he started to scuffle with the officer in warding off the baton blows. Constable Mageau appeared on the scene and the accused was overpowered and handcuffed. During the operation, Constable Nickle put his knee and leg on the accused's neck while the accused was on the ground. The accused resisted being put in the cruiser and more force was used. En route to the Wawa cells, the officers became concerned with the accused's breathing and stopped twice to check the accused's condition. They decided to return to Dubreuilville and called on the Resident Clinic nurse and ambulance to transport the accused to Wawa Hospital. Throughout this part of the affair the accused was not cooperative and refused to be examined by the doctor at Wawa. When the accused was placed in the cells, Constable Mageau states that the accused said he would kill him, too. The main issue in this case is whether Constable Nickle was in the execution of his duty when he pursued and confronted the accused at the bottom of the hill. The evidence is clear that the accused was not arrested until after the physical encounter had occurred. The events in question raise the issue of competing rights. Section 9 of the Charter of Rights and Freedoms protects everyone from arbitrary detention or imprisonment. It is clear for our purposes that a person cannot be arrested without warrant unless he is found to be in an intoxicated condition in a public place and where, in the opinion of the police officer, it is necessary to do so for the safety of the intoxicated person or to protect another person from injury. (See s. 46(4) and (5) Liquor Licence Act, R.S.O Chap The officer's opinion must be based on good faith, reasonable and articulable grounds.

4 Page 4 In a free and democratic society such as ours, the exercise of our right to come and go in safety depends in large measure on our peace officers. They are the front line troops in the war against law-breakers who threaten the general peace and the private exercise of freedom. Police officers are constantly at risk in their efforts to preserve the peace. The police need the cooperation and respect of the community. That respect and cooperation must be deserved and depends on the relationship which exists between a given community and its local police forces. The police are the agents of the law. The law is the instrument of justice. No one is above the law and all of us are accountable to the law. In Dedman v. Regina, 46 C.R. (3d) 193, Chief Justice Dickson states (at p. 200): "It has always been a fundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are entitled to interfere with the liberty or property of the citizen only to the extent authorized by law." The fact that the accused refused to talk to the officers prior to the pursuit, and had walked or run away, does not constitute a crime. When asked why he was pursuing the accused down the hill, Constable Nickle replied that following his consultation with the acting Corporal he wished to verify the accused's state of intoxication in order to make an arrest decision. Constable Mageau states that the accused was approaching the point where he might be a danger to himself or others because of their knowledge of his previous encounter with them in November of The accused had been drinking on the evening in question. If he was intoxicated to the point of satisfying the criteria set out in s. 45(5) of the Liquor Licence Act, the officers would have been justified in arresting him without warrant during any of their prior encounters with him that evening. The evidence of both officers indicates that there was some doubt in their minds as to the degree of the accused's intoxication. There is a reasonable doubt, therefore, as to whether the accused was in fact intoxicated at the material time. If the accused were in fact intoxicated (and I do not so find) I would have more than a reasonable doubt that he was in such a state as would justify his arrest without warrant. In R. v. Tisdale, [1971] 1 W.W.R. 215, the court held that before it could be said that a police officer has arrived at an opinion as contemplated by the Act, it must be shown that he acted judicially, that is to say, that the opinion should be one arrived at on proper principles based upon sufficient materials or observations and one which could be justified by appropriate reasons; it could not be one formed arbitrarily. It was not enough that a person merely appeared to be under the influence of liquor; there must be evidence of intoxication, that is to say, stupefaction by alcohol to the point where the person had lost the capacity to prevent himself from causing injury to himself or be a danger, nuisance or disturbance to others. A person must be very drunk before he could be said to be intoxicated under the section. In the case at bar, I am not satisfied on the evidence before me that at the material time that the accused was so intoxicated that it was necessary to arrest him without warrant for his safety or to protect another person from injury. The physical confrontation between the officer and the accused with its attendant dangers, does not of itself give rise to an arrest otherwise unwarranted by law or fact.

5 Page 5 In my view the police were not justified in attempting to take the accused into custody in the circumstances described in these reasons. That detention was an arbitrary one and prohibited by s. 9 of the Charter of Rights and Freedoms. The accused was entitled to use reasonable force to resist an unlawful detention. I find that his actions were substantially, if not totally, defensive. His words and acts confirm his defensive stance. The charges against him are dismissed. The charges are also dismissable pursuant to s. 24(1) of the Charter. Count number five, which involves a threat to Constable Meageau in the police cells at Wawa, arises out of the same set of circumstances and is dismissed for the same reasons as those given for the other counts. In any event, I would stay conviction on this count for the same reasons. In the result the accused is declared not guilty of all five counts in this indictment. STORTINI D.C.J.