On July 30, 2011, Justin Kukemueller was at his rural property north of Peterborough with his girlfriend, Caitlynn Wiles, and several other young people. Ms. Wiles crashed her car into a tree, setting it on fire, and firefighters were called to the scene. The group seemed to have been drinking, and firefighters called police to assist.

Police learned that the wreck may have been caused by playing a game of “demolition derby”. Kukemueller and Wiles smelled of alcohol when speaking to police, and Wiles was arrested for dangerous driving.

The crowd got angry, and police requested backup. Along with police, Kukemueller’s father arrived on an off-road vehicle to support the group, leading to his own arrest for impaired driving.

Kukemueller then “reacted with a loud, profane and angry tirade against the police”. There was ultimately a group of about 22 people present during the outburst, including police, firefighters, family and friends of the accused. Kukemueller was arrested and charged with causing a disturbance in or near a public place, under section 175(1)(a)(i) of the Criminal Code:

175. (1) Every one who
(a) 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,
…
is guilty of an offence punishable on summary conviction.

Kukemueller was convicted of the offence at trial, where the judge found that his “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” [emphasis added], and that he “made things worse”. The summary conviction appeal court agreed, and upheld the conviction.

The Ontario Court of Appeal allowed the appeal and set aside the conviction: 2014 ONCA 295.

At issue was whether Kukemueller’s outburst was causing a “disturbance”.

The Supreme Court in R v Lohnes, [1992] 1 SCR 167 defined this standard, finding that a disturbance “constitutes an interference with the ordinary and customary use by the public of the place in question”. It is not enough to cause mental or emotional annoyance; courts must consider the public’s ordinary use of the place and whether that use has been interfered with.

For example, the majority of the Ontario Court of Appeal in R v Swinkels, 2010 ONCA 742 found that a group gathering and even shouting anti-police insults at officers is not, in and of itself, a disturbance; there must further be an “externally manifested disturbance of the public peace”.

The Court of Appeal similarly found that Kukemueller did not interfere with the “public’s normal activities” at the time and place in question. Merely “raising the tension at the scene” or “making things worse” by screaming and swearing is insufficient.

The upshot: if a mob in the woods screams insults at the police and nobody else is around to hear them, have they caused a disturbance? The answer is no.

The implications may seem unusual. Does this mean that police just have to accept some high-volume verbal abuse as part of the background noise of the job? Unfortunately, yes.

There are, of course, other tools available if such a targeted outburst rises to the level where the officer’s duties are interfered with, without even the slightest public interference. Such conduct runs the risk of obstructing an officer in the course of duty, a separate offence under section 129(a) of the Code.