R. v. Keough (D.L.) et al., (2011) 311 Nfld. & P.E.I.R. 210 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 04, 2011
• Jurisdiction: Newfoundland and Labrador
• Citations: (2011), 311 Nfld. & P.E.I.R. 210 (NLPC)

R. v. Keough (D.L.) (2011), 311 Nfld. & P.E.I.R. 210 (NLPC);

    967 A.P.R. 210

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. AU.004

Her Majesty the Queen v. Deon Lewis Keough and Wayne Payne

(2011 PCNL 1309A00784)

Indexed As: R. v. Keough (D.L.) et al.

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

January 4, 2011.

Summary:

Two confrontations between Payne and Keough and officers of the Department of Fisheries and Oceans resulted in Payne and Keough both being charged with obstructing a fishery officer (Fisheries Act, s. 62). Also, Payne was charged with assaulting a peace officer engaged in the execution of his duties (Criminal Code, s. 270(1)(a)) and Keough was charged with flight from the police (Code, s. 249.1(1)).

The Newfoundland and Labrador Provincial Court found Keough not guilty of obstruction, but convicted him of flight from the police. The court convicted Payne of both offences.

Criminal Law - Topic 433

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer - General - The Newfoundland and Labrador Provincial Court stated that: "The word 'obstruct' in the context of obstructing a peace officer refers to actions which make it more difficult for a peace officer to carry out her or his duties ... In R. v. Tortola ..., the Ontario Court of Appeal rejected the proposition that 'a person cannot be convicted of the offence of obstructing a peace officer unless he wholly prevents the officer from the execution of his duty.' Thus, it is sufficient if the obstruction affected the officer in the execution of a duty ... An obstruction need not be physical but may be verbal ..." - See paragraph 36.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer - In execution of his duty - Two confrontations between Payne and Keough and officers of the Department of Fisheries and Oceans resulted in charges being laid against Payne and Keough - The charges included obstructing a fishery officer (Fisheries Act, s. 62) (Payne and Keough) and assaulting a peace officer engaged in the execution of his duties (Criminal Code, s. 270(1)(a)) (Payne) - The Newfoundland and Labrador Provincial Court stated that "Section 270(1) of the Criminal Code requires proof that the accused assaulted a peace officer who was engaged in the execution of his or her duty ... Section 62 of the Fisheries Act requires proof that the fishery officer was 'carrying out duties or functions' under the Fisheries Act. It has been held that it must be proven that the accused was aware that the person he or she was assaulting was a peace officer ... and that the obstruction was deliberate ... for a conviction to be registered. Finally, the 'powers and duties of a peace officer emanate from common law and statute' ..." - The court also referred to a discussion of the British Columbia Court of Appeal, in the context of s. 129(a) of the Criminal Code, respecting when a peace officer was acting in the execution of his or duties and that court's conclusion that the concept of a duty was a broad one, but required more than simply "being on duty" - See paragraphs 40 and 41.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer - In execution of his duty - As a result of a covert surveillance of a wharf, officers of the Department of Fisheries and Oceans suspected that Keough was transporting illegally caught fish - Two officers waited in a vehicle on the road near Keough's residence - When, Keough's vehicle entered the road, the officers engaged their emergency lights - Keough sped up, began to press on his vehicle's horn and pulled into his residence - The officers followed - The Newfoundland and Labrador Provincial Court found Keough guilty of flight from the police (Criminal Code, s. 249.1(1)) - As Keough passed the officers, he was suspicious that they were there because of the roe that he was transporting - The emergency lights would have alerted him to the fact that the officers were engaged in their duty - If he did not believe that he was the subject of those duties he would not have increased his speed - The court recognized that Keough did not drive very far before stopping and that he did not attempt to evade or flee from the officers after he arrived at his driveway - However, s. 249.1(1) did not require proof of a successful evasion or of a long term attempt to do so - The evidence established that Keough failed to stop his vehicle as soon as practicable and failed to do so in order to evade a police officer whom he recognized - Thus all the elements of the offence were established - Keough did not have a reasonable excuse for failing to stop - See paragraphs 74 to 76.

Criminal Law - Topic 1406

Offences against person and reputation - Motor vehicles - Flight to evade - Elements of - The Newfoundland and Labrador Provincial Court stated that "As can be seen from the wording of s. 249.1(1) of the Criminal Code, the actus reus of this offence [flight from police] requires proof that the accused: 1. operated a motor vehicle; 2. while being 'pursued' by a peace officer operating a motor vehicle (pursuit has been defined as meaning: 'following with the intent to overtake' ... and that 3. he or she failed to stop their vehicle as soon as practicable. ... The mens rea element of the offence requires proof that the accused failed to stop his or her vehicle as soon as practicable in order to evade the police. Deliberate evasion of the police must be proven ... In R. v. Kulchisky ... the Alberta Court of Appeal equated the element of evading in s. 249.1(1) with 'an attempt to elude or get away from. The motive for evasion, assuming the absence of a reasonable excuse, is of no moment.' ... If the Crown is able to prove the actus reus and mens rea elements of the offence created by s. 249.1(1) of the Criminal Code, then the accused will be convicted unless he or she establishes that they had a reasonable excuse for having failed to stop (see s. 794(2) of the Criminal Code)." - See paragraphs 42 to 44.

Criminal Law - Topic 1410

Offences against person and reputation - Assaults - General principles - The Newfoundland and Labrador Provincial Court stated that "An 'assault' is defined in s. 265(1) of the Criminal Code. It includes an 'act or gesture, to apply force to another person' if the accused 'has or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose' ... Therefore an attempt or threat to apply force can constitute an assault. ... It has been held that words alone cannot constitute an assault pursuant s. 265(1)(b) because that provision requires an 'act or gesture' by the accused and that 'this act or gesture must amount to an attempt or threat to apply force' (see R. v. Cadden ... (B.C.C.A.)). However, it has also been held that it 'is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat' (see R. v. Horncastle ... (N.B.C.A.)...) ... In determining whether or not s. 265(1)(b) of the Criminal Code applies in a particular case, the Court must consider the context of an accused's actions (see R. v. Nurse ... (Ont. C.A.))." - See paragraphs 37 to 39.

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - [See Criminal Law - Topic 1410 ].

Criminal Law - Topic 1414

Offences against person and reputation - Assaults - Assault of a peace officer - An officer of the Department of Fisheries and Oceans (Shears) was in the process of seizing nets owned by Payne as evidence of an offence - Payne took off his jacket, raised his fists and moved towards Shears in a menacing manner - Other people who were present restrained him - The Newfoundland and Labrador Provincial Court found Payne guilty of assaulting a peace officer engaged in the execution of his duties (Criminal Code, s. 270(1)) - Payne properly conceded that Shears was acting within the execution of his duties - Payne's actions involved an act and a gesture to apply force to Shears - His acts established his intention to apply force - The presence of other officers provided some protection to Shears, but the reality of the situation could not be ignored - A crowd had gathered and Payne was extremely angry - Payne's acts constituted a significant and genuine threat to Shears - The presence of the other officers was not such as to make it unreasonable for Shears to believe that Payne was going to apply force to him and that he had the present ability to do so - See paragraphs 77 to 80.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of fisheries officers or guardians - [See Criminal Law - Topic 433 ].

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of fisheries officers or guardians - Two officers of the Department of Fisheries and Oceans followed Keough to his residence for the purpose of investigating illegally caught fish - Keough was belligerent and abusive towards the officers - One of the officers (Shears) wanted to examine a bucket in the back of Keough's pickup truck - Keough was argumentative and invited the officers in rude language to do so - Shears examined the bucket - However, because of the actions of another individual, he did not examine the bucket to the extent that he otherwise would have - The Newfoundland and Labrador Provincial Court found Keough not guilty of obstructing a peace officer (Fisheries Act, s. 62) - Although raised voices could be intimidating and add to an officer's concern for his or her safety, the evidence was not sufficient to establish that Keough obstructed Shears from examining the bucket - This did not mean, however, that acting within a group would never constitute an obstruction - See paragraphs 81 to 83.

Fish and Game - Topic 2083

Fishing offences - Enforcement offences - Obstruction of fisheries officers or guardians - Two officers of the Department of Fisheries and Oceans followed Keough to his residence for the purpose of investigating illegally caught fish - Keough was belligerent and abusive towards the officers - One of the officers (Shears) wanted to examine a bucket in the back of Keough's pickup truck - Payne, who was also at the residence, began yelling at the officers - He took of his jacket and raised his fists towards the officers - Shears examined the bucket and determined its contents - The Newfoundland and Labrador Provincial Court found Payne guilty of obstructing a peace officer (Fisheries Act, s. 62) - Although Shears examined the bucket, he was unable to conduct a thorough examination and was forced to end his examination of it as a result of Payne's actions and threats - Proof of an obstruction did not require that it established that a peace officer was totally prevented from exercising his or her duties - See paragraphs 84 to 86.

Cases Noticed:

R. v. Rumbolt (D.J.) (1993), 111 Nfld. & P.E.I.R. 174; 348 A.P.R. 174 (Nfld. Prov. Ct.), refd to. [para. 36].

R. v. Adams (S.G.) (2010), 488 A.R. 286 (Q.B.), refd to. [para. 36].

R. v. Tortolano (1975), 28 C.C.C.(2d) 562 (Ont. C.A.), refd to. [para. 36].

R. v. MacPherson and Cole (1977), 24 N.S.R.(2d) 102; 35 A.P.R. 102 (C.A.), refd to. [para. 36].

R. v. O'Hara (G.) (1993), 119 N.S.R.(2d) 128; 330 A.P.R. 128 (Prov. Ct.), refd to. [para. 36].

Stephens v. Meyers (1830), 172 E.R. 735, refd to. [para. 37].

R. v. Cadden (1989), 70 C.R.(3d) 340 (B.C.C.A.), refd to. [para. 38].

R. v. Horncastle (1972), 4 N.B.R.(2d) 821; 19 C.R.N.S. 362 (C.A.), refd to. [para. 38].

R. v. Nurse (D.W.) et al. (1993), 61 O.A.C. 128; 83 C.C.C.(3d) 546 (C.A.), refd to. [para. 39].

R. v. Lowry (T.G.) (2006), 406 A.R. 306; 2006 ABPC 209, refd to. [para. 40].

R. v. Vlcko (1972), 10 C.C.C.(2d) 139 (Ont. C.A.), refd to. [para. 40].

R. v. Gunn (P.B.) (1997), 193 A.R. 222; 135 W.A.C. 222 (C.A.), refd to. [para. 40].

R. v. Sanderson (D.W.) (2003), 170 O.A.C. 285; 174 C.C.C.(3d) 289 (C.A.), refd to. [para. 40].

R. v. Noel (A.A.) (1995), 63 B.C.A.C. 191; 104 W.A.C. 191; 101 C.C.C.(3d) 183 (C.A.), refd to. [para. 41].

R. v. Kagayalingam, [2006] O.J. No. 4334 (C.J.), refd to. [para. 42].

R. v. Roberts (R.N.) (2005), 361 A.R. 149; 339 W.A.C. 149; 192 C.C.C.(3d) 462; 2005 ABCA 11, refd to. [para. 43].

R. v. Kulchisky (K.W.), [2007] A.R. Uned. 53 (C.A.), refd to. [para. 43].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 50].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 50].

R. v. Briand (R.) et al. (2010), 299 Nfld. & P.E.I.R. 34; 926 A.P.R. 34; 258 C.C.C.(3d) 416 (Nfld. C.A.), refd to. [para. 50].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 51].

R. v. B.C.G., [2010] Man.R.(2d) Uned. 57 (C.A.), refd to. [para. 53].

R. v. Liberatore (M.V.) (2010), 299 N.S.R.(2d) 53; 947 A.P.R. 53 (C.A.), refd to. [para. 54].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359 (C.A.), refd to. [para. 55].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 2010 SCC 13, refd to. [para. 83].

Counsel:

J. Hann, for Her Majesty the Queen;

B. Matthews, Q.C., for Her Majesty the Queen in Right of the Province of Newfoundland and Labrador;

K. O'Flaherty for Mr. Keough and Mr. Payne.

This matter was heard on December 9 and 16, 2010, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following written judgment on January 4, 2011.