IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Wamboldt, 2003 NSPC 011
Date: 20030414
Docket: 1229447
Registry: Bridgewater
Between:
Her Majesty the Queen
v.
Chad Wamboldt
Judge: The Honourable Judge Crawford
Heard: March 3, 2003 in Liverpool, Nova Scotia
Written Decision: April 14, 2003
Counsel: Herman Felderhof, for the Crown
David Hirtle, for the Defence
By the Court:
[1] Chad Wamboldt is charged under s. 129 of the Criminal Code with resisting arrest by struggling.
Facts
[2] This incident occurred at the intersection of the Hibernia Road and Highway #8 near Cameron Lake in Queens County, Nova Scotia. On September 1, 2002 R.C.M.P. Constables Lutz and Kendall had a motor vehicle checkpoint set up at that location. Around 5:05 p.m. Cst. Lutz checked a blue two-door Hyundai driven by Tammy Cunningham, the common-law spouse of the defendant. It was heading north toward Caledonia and contained, in addition to Ms Cunningham and the defendant, Ms. Cheryl Conway and Mr. Derrick Weare. The defendant was in the back seat behind Ms. Cunningham. Ms. Conway occupied the front passenger seat and Mr. Weare was seated behind Ms. Conway and to the defendant's right.
[3] As the vehicle halted at the checkpoint, Cst. Lutz noticed that the defendant was not wearing his seatbelt and asked the driver to pull over to the shoulder. He noticed a strong smell of alcohol from the car, but not from the driver. The defendant, on the other hand, appeared to be drunk and semi-conscious or passed out with his head leaning against the side roof of the car. He told the driver he was going to give the defendant a ticket for not wearing his seatbelt and asked her for his identification. She pulled the defendant's wallet out of his rear pants pocket and gave his driver's licence to the officer.
[4] From this point forward there is major disagreement between the Crown and defence witnesses. Cst. Lutz says that he shook the defendant's knee to wake him up and told him he was going to be given a ticket and that the defendant woke up and immediately became aggressive, lunging forward with both fists up and clenched saying, "Go fuck yourself. I'm not taking no tickets for nothing". Cst. Lutz said that the defendant kept trying to push Mr. Weare away as the latter attempted to attach his seatbelt for him.
[5] Cst. Lutz said that he found the situation "very threatening". He said it was obvious that the defendant was very drunk, was not going to accept a ticket and was not going to fasten his seatbelt. So he told him he was under arrest and ordered him to get out of the car. When the defendant said he was not going anywhere, the officer grabbed himby the wrist and tried to remove him. He said the defendant pushed him back, whereupon he yelled to Cst. Kendall for assistance.
[6] Cst. Lutz said the defendant was still resisting, so he peppersprayed him and tried again to pull him out of the car. Cst Lutz said that Mr. Weare was holding the defendant back. He said he told Mr. Weare to let the defendant go or "I would spray him too." Mr. Weare did not let go, so Cst. Lutz sprayed him.
[7] Mr. Weare released the defendant but, according to Cst. Lutz, the defendant continued to struggle. Cst. Kendall intervened, and pulled the defendant from the car by the back of his belt. The defendant went to the pavement, where Cst. Lutz handcuffed him and told him to get up. The defendant would not get up, so Cst. Lutz dragged him across the pavement to the police car, where the two officers managed to get the defendant to his feet. They got his upper body into the police car, but he would not put his legs in. Cst. Kendall went around to the other door and pulled the defendant in, while Cst. Lutz kicked at the defendant's feet to get them into the car.
[8] Cst. Kendall testified that his attention was first drawn to this situation by loud voices. He got out of his police car to see what was happening and heard Cst. Lutz say, "Get out of the car; you're under arrest" as he reached into the car. He said he saw arms flailing in the back seat and saw Cst. Lutz back out of the car.
[9] Cst. Kendall reached into the back seat of the two-door car to get hold of the defendant. He said the defendant was trying to get his seatbelt on and pushed him back out. The defendant was “totally polluted” and having trouble with his motor skills; he could not find the other end of the seatbelt. As Cst. Kendall went in again to try to get the defendant out, Cst. Lutz peppersprayed the defendant, forcing Cst. Kendall to back out again.
[10] Once the spray had dissipated, Cst. Kendall went back, pushed the defendant’s head between his knees, got hold of the back of his belt and pulled him out. He went to the ground, with Cst. Kendall holding his head and shoulders. Cst. Kendall put his knee on his back and held him down while Cst. Lutz handcuffed him.
[11] Cst. Kendall described the defendant as aggressive when he first approached him and then as passively resisting once he was handcuffed. He said the defendant was highly intoxicated; he did not think the defendant was able to stand up on his own.
[12] Once the defendant was handcuffed Cst. Lutz ordered him to get up and get in the police car. Cst. Lutz said he would not get up, so he dragged him to the police car, where he and Cst. Kendall put him in the back seat. The defendant would not put his feet in, so Cst. Lutz "kicked at" his feet to get him to put them in; and Cst. Kendall went around to the other side of the rear seat of the police car and pulled the defendant in. In the process the defendant spit.
[13] The defendant took the stand and testified to a day of drinking at drag races held at the Greenfield airport. He said he did not remember much about the incident on the way home because he had consumed most or all of a quart of Captain Morgan rum, which was unusual for him. He said he had never consumed that much liquor before and he did not remember leaving the races or the trip home, except for being peppersprayed and asking to spit.
[14] Ms. Tammy Cunningham, the defendant’s common-law wife of seven years, testified that she was driving that day. She said that she did not know exactly how much the defendant had to drink at the races, but she had been upset with him because he would not eat and then had thrown up in the car as she tried to get him into the rear seat for the trip home.
[15] When Cst. Lutz pointed out to her that the defendant was not wearing his seatbelt, she explained that he was “under the weather” and that she had been unable to get it on him. She had to roll the defendant up on one side to get his wallet out for Cst Lutz; and the defendant just continued to sleep.
[16] She said that Cst. Lutz said the defendant would have to get out of the car to be given the ticket and then went into the car to arouse him. He said, “Hey, buddy, you’ve got to get out.”
[17] Standing behind Cst. Lutz, she could not see what was happening in the back seat, but she heard her husband say, “Go fuck yourself.” His speech was slurred, she said. Cst. Lutz did not identify himself to the defendant. She did not think the defendant knew who was talking to him.
[18] She said that at that point, Cst. Lutz’s demeanour changed; he shouted angrily, “That’s it; assault of a police officer; you’re under arrest,” and hollered for Cst. Kendall.
[19] Ms. Cheryl Conway was in the front passenger seat during this exchange. She saw what was happening in the back seat. She said that when Cst. Lutz jostled the defendant and told him to get out, the defendant’s eyes were still closed as he said, “Go fuck yourself.” Neither his hands nor his feet moved, but Cst. Lutz roared, "That's it; that's assault of a police officer; you're under arrest -- get out of the car."
[20] When Cst. Lutz started roaring at him to get out, the defendant brought his hands up and back down in a gesture of helplessness as he said, “I can’t,” and his head flopped back down.
[21] Cst. Lutz called to Cst. Kendall and reached back in the car, cuffing one of the defendant’s hands. Mr. Weare said, “Just wait, I’ll try to get his seatbelt on.” But Cst. Lutz repeated, “Get out of the car, get out of the car.”
[22] She said Cst. Lutz was angry; his face was red, his eyes bulged out and he was roaring.
[23] When the defendant said, “I can’t,” Cst Lutz said, “I’ve got something that’ll get you out,” and pepper sprayed him.
[24] Mr. Weare tried to intervene: “You don’t have to do that; I’ll get him out.”
[25] Cst. Lutz’s reply was, “You want some too, do you?” and he pepper sprayed Mr. Weare.
[26] Mr. Derrick Weare confirmed the testimony of Ms. Cunningham and Ms. Conway that, apart from the comment, “Go fuck yourself,” and saying that he couldn’t get out of the car, the defendant offered no resistance or aggression to Cst. Lutz up to the time that he himself was peppersprayed.
[27] Ms. Cunningham and Ms. Conway testified that after the defendant was pulled out of the car, handcuffed, dragged across the road and lodged in the police car, Ms. Cunningham asked Cst. Lutz what she should do -- should she follow the police car. Cst. Lutz's reply was, "Do you want to go to jail too?"
[28] Ms. Cunningham replied, "No, I just don't know what to do -- I've never been involved in anything like this before."
[29] Cst. Lutz told her, "Just get in the car, shut up and go home and wait."
Issues
[30] The defence raises two issues on these facts:
1. Was the arrest valid?
2. Did the defendant resist, given his state of intoxication?
Validity of arrest
[31] Under the Nova Scotia Summary Proceedings Act the power of a police officer to arrest without warrant for a provincial offence derives from s. 495 of the Criminal Code, the relevant portions of which state:
495 (1) A peace officer may arrest without warrant
. . . .
(b) a person whom he finds committing a criminal offence; . . . .
2) A peace officer shall not arrest a person without warrant for
. . . .
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of
(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).
[32] Cst. Lutz stated that it was clear to him that the defendant was not going to put his seatbelt on and that he arrested him to prevent the continuation of an offence, in other words under s. 495(2)(d)(iii). But this does not accord with the testimony of any of the other witnesses. The defence witnesses said that, at the time, he shouted that defendant was under arrest for assaulting a police officer; and several witnesses, including Cst. Kendall and Cst. Lutz himself, stated that the defendant and/or Mr. Weare attempted to fasten the defendant's seatbelt.
[33] Under s. 495(3) the burden is on the defence to establish that Cst. Lutz did not comply with subsection (2).
[34] From all of the evidence before me I conclude and find as a fact that, on any reasonable standard, Cst. Lutz had no valid reason to arrest the defendant. He had the defendant's identity and presumably knew where he lived. There was no evidence on which he could form a belief that he would not show up for court. Although he testified that he thought the defendant would not put on his seatbelt, he appears not to have given the defendant and his friends an opportunity to do so. He simply "lost his cool" when confronted by a drunk who was mouthing obscenities at him and was failing to comply immediately with his order to get out of the car.
[35] The situation could have been handled without incident if he had allowed the other occupants of the car to put the defendant's seatbelt on him and waited until the next day to deliver the ticket to the defendant when he had sobered up.
Resisting by struggling
[36] Assuming that I am wrong on the first issue and that the arrest was valid, I find that, given the defendant's state of sobriety, I am left in reasonable doubt as to whether what the officers perceived as resistance or struggling was anything more than a lack of co-ordination attributable to gross intoxication.
[37] All the witnesses agreed that the defendant was grossly drunk. Ms. Cunningham testified that she had great difficulty in getting him into the back seat of the car when they left the airport. I note that this was a small two-door car, and that getting in and out of the rear seat of such a vehicle can be a bit awkward, even when one is sober. Add to that difficulty the advanced inebriation of the defendant and it is not surprising that he had problems in complying with the officer's initial direction to get out of the car.
[38] Similarly, his failure to get up from the pavement and go to the police car on command may have been due to lack of motor skills rather than to any intent to resist arrest.
Conclusion
[39] On both or either of the issues dealt with here, I find the defendant not guilty of the offence charged.