New & Notable: Screaming, Shouting and Swearing at police: Obnoxious, but is it Criminal?

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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.

JD

New & Notable: Voyeurism or Just a Guy with a Camera?

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Toronto has a clothing optional public beach - designated as such by city bylaw in 2002. Some people exercise this option to participate in the nudist or naturalist lifestyle; some just for the fun of the experience. It is, not surprisingly, a popular beach with many simply in attendance to ogle.  In 2005 Parliament enacted Bill C-2 which saw the creation of the criminal offence of voyeurism.

On Labour Day weekend 2012, HL took his 9-month old son and camera and set out for the clothing optional beach. He was arrested later that day for having taken dozens of pictures of nude women. He did so in plain view and when confronted by one of his muses he agreed to delete the photos he had taken of her.

HL was charged with voyeurism; Green J was tasked with deciding if his conduct amounted to same: 2014 ONCJ 130.

The essential elements of voyeurism as charged in the information required that HL:

1. Surreptitiously have made the visual recording
2. Of nude persons
3. In circumstances that gave rise to a reasonable expectation of privacy.

There was of course no dispute that HL had taken the 47 nude photos of women filed as exhibits in the trial. At issue was whether the photos were shot surreptitiously and whether the there was a reasonable expectation of privacy at the clothing-optional beach.

The Crown argued that despite the fact that HL's conduct was carried out in plain view, it was nonetheless surreptitious because all of the photos were taken from behind, with the women facing away from the camera. Thus, the effect was that HL's conduct was surreptitious to the women he was photographing.

Green J was dismissive of this argument holding, inter alia, that HL's conduct was “if anything, public (if not in fact conspicuous) — the antithesis of "surreptitious" [para 26].  He further noted that “neither the absence of consent or awareness on the part of the person observed or recorded is an expressly requisite feature of the offence set out in s. 162” [para 28].

Furthermore, HL testified that he intentionally and conspicuously photographed women from behind “so as to capture them in natural rather than contrived attitudes” [para 32]. That testimony was accepted by Green J.

Despite finding that the offence had not been made out due to the ‘conspicuous’ rather than surreptitious nature of the making of the visual recordings, Green J nonetheless addressed the issue of reasonable expectation of privacy.

Green J was prepared to infer that the woman who asked HL to delete her photos had a subjective expectation of privacy and that other beach-goers may have been displeased with his conduct. However, the court concluded that the circumstances did not give rise to a reasonable expectation of privacy for the following reasons:

• The beach is public
• The beach is open to both clothed and unclothed
• Those who do go nude do so knowing that they will be observed
• Those who remove their clothing know that many on the beach carry cameras
• No rules or by-laws prohibited the taking of photographs
• No sign discouraged the use of cameras
• The photographs taken were of mature females
• The photographs revealed no more nudity than would have been observable to any other beach goers
• There was no concern that the photography was to be distributed in any way [@para 40].

Green J concluded by offering the following:

Without pre-deciding the issue or endeavouring to influence any other jurist, I venture to suggest that a change in circumstances — such as the installation of prohibitive signage and appropriate by-law amendments — could lead to a recalibration of "where the 'reasonableness' line should be drawn" with respect to the visual recording of nude beachgoers at the (beach) [para 41].

Of note since the summer of 2013 the clothing optional beach has had a “photography prohibited” sign.

LT

Current & Curious: Threats Redux

Today the Supreme Court released its decision in O'Brien: 2013 SCC 2. Yesterday I posted about this case and commented on the possible impact of the Court's ruling: Finding fear in all the right places.

Two aspects of the ruling are interesting. First, the legal analysis. Fish J, for the majority held that "it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered feel intimidated by them or be shown to have taken them seriously" [para 13]. Rothstein J, for the minority agreed. As I noted in my post yesterday, this is an interesting point. That all members of the Court agreed, and with little real analysis, that the subjective view of the recipient of the threat is not determinative is somewhat notable. It has been held and accepted by many that this is not only an important but fundamental aspect of a threats charge. Regardless, as I noted in my earlier post - whether it was always the law or is now the law - this is a beneficial and legally sound view of the elements of a threats charge.

Second, the dispute between the majority and minority relates to the interpretation of the trial judge's ruling. The trial judge held as follows:

So I have to consider the evidence of Ms. [W] when I consider the mental element or the mens rea.  Normally the mens rea is taken from the words of the accused, absent any explanation from the accused, and as I pointed out at the outset you have chosen not to testify, as is your right.  But the evidence in this case is somewhat unusual in the sense that Ms. [W] has told the court that she was not concerned about the threats, that you shoot your mouth off, if I can use the vernacular, that she did not want you charged, she did not take the threat seriously.  And so it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt.  So despite my concerns I am entering an acquittal on the charges of utter threats, …

While the majority found that it was open to the trial judge to consider W's perception, the minority felt the trial judge asked the wrong question - and acquitted on the basis of W's perception. With respect, it looks like that is exactly what the trial judge did. Perhaps, in fairness, the learned trial judge was of the same view as many others, that the recipient's view is highly probative and indeed, determinative. At any rate, that is not the law - at least not any more.

DGM