R. v. Phan (L.), (2009) 476 A.R. 323 (PC)

• Judge: Cummings, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 26, 2009
• Citations: (2009), 476 A.R. 323 (PC);2009 ABPC 190

R. v. Phan (L.) (2009), 476 A.R. 323 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.049

Her Majesty the Queen v. Lily Phan (071597017P101001-005; 2009 ABPC 190)

Indexed As: R. v. Phan (L.)

Alberta Provincial Court

Cummings, P.C.J.

June 26, 2009.

Summary:

The Crown alleged that the accused assaulted an Alberta Sheriff (Hammoud) during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast", on the grounds of Calgary's McDougall Centre. Alberta's Premier was the featured host. The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie. The accused was charged with (1) assaulting a peace officer engaged in the execution of his duty, (2) obstructing, interrupting or interfering with the lawful use of property, (3) assault, (4) assault with intent to resist lawful arrest and (5) causing a disturbance in a public place.

The Alberta Provincial Court found the accused guilty of the following charges: (1) assaulting a peace officer engaged in the execution of his duty; (3) assault on Hammoud; and (4) assault with intent to resist lawful arrest. The accused was found not guilty of charges (2) obstructing, interrupting or interfering with the lawful use property and (5) causing a disturbance in a public place (the McDougall Centre). After considering the rule against multiple convictions, the court directed a conditional stay on charge (3), assault on Hammoud.

Criminal Law - Topic 39.6

General principles - Mens rea or intention - Transferred intent or transferred malice - The Crown alleged that the accused assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" - Alberta's Premier was the featured host - The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie - The Premier was not hit by any pie, but portions struck the Sheriff - The Alberta Provincial Court, in finding the accused guilty of assault, held that the doctrine of transferred intent applied - See paragraphs 153 to 164.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The Crown alleged that the accused assaulted an Alberta Sheriff (Hammoud) during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" - Alberta's Premier was the featured host - The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie - The Premier was not hit, but portions of the pie struck the Sheriff - The Alberta Provincial Court found the accused guilty of assaulting a peace officer engaged in the execution of his duty; assault on Hammoud; and assault with intent to resist lawful arrest - After considering the rule against multiple convictions (Kienapple), the court directed a conditional stay of the charge of assault on Hammoud - It was a lesser included offence to both findings of guilt on the other two counts - The court entered convictions on the remaining two offences - An assault occurred on Sheriff Hammoud at two stages: once by the accused landing pie on him and then again by the accused kicking him in the course of the arrest that followed - The actions occurred essentially all within the same transaction - While the accused's acts had a factual nexus, the legal nexus was absent - There were additional distinguishing elements to each of these offences that prohibited the application of the Kienapple principle - See paragraphs 223 to 232.

Criminal Law - Topic 751

Disorderly conduct - Causing a public disturbance - The Crown alleged that the accused assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" at Calgary's McDougall Centre - Alberta's Premier was the featured host - The accused was charged with five offences, including causing a disturbance in a public place - The Crown and the accused agreed that the court's assessment of evidence relating to the alleged interruption or interference pertaining to the count would commence only with the sequence where the accused projected pie - The Alberta Provincial Court could not determine if disruption at this crowded social event occurred as a direct physical result of the accused's actions or whether it resulted in whole or in part from the actions of Sheriffs in restraining her - It would amount to speculation, not reasonable inference based upon the Sheriffs' evidence, to conclude that an "externally manifested disturbance of the public peace in the sense of interference with the ordinary and customary use of the premises by the public" arose solely by the accused's actions - See paragraphs 217 to 221.

Criminal Law - Topic 1411

Assaults - Intention or mens rea - [See Criminal Law - Topic 39.6 ].

Criminal Law - Topic 1414.1

Assaults - Assault with intent to resist arrest - The Crown alleged that the accused assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" - Alberta's Premier was the featured host - The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie - The Premier was not hit, but portions of the pie struck the Sheriff - The Alberta Provincial Court convicted the accused of, inter alia, assault with intent to resist lawful arrest - The accused justified her verbal insistence that "its just a pie, not a bomb" by saying this was meant as an assurance that anything she had in her possession was "not something serious", citing security concerns which might naturally arise following the events of "9/11" - Her hope was that officers would not be so harsh with her as a result - She submitted that this was a reasonable attempt to place the event in perspective knowing pies were a part of the traditional theatre associated with protest and that the Sheriffs overreacted - The court disagreed - The accused's comments were inflammatory, not benign - Sheriff Hammoud and the other Sheriffs could not have stood by idly and simply taken the accused at her word - They had no choice but to restrain and arrest her without a warrant - They had reasonable grounds to act in the public interest to prevent the commission of an offence which might somehow be associated with her assault of the Sheriff or the threat of a bomb, whether or not that threat had any real merit - The accused conducted unlawful resistance to Sheriff Hammoud's legitimate efforts in effecting her lawful arrest - She then assaulted Sheriff Hammoud in the course of her being placed under arrest - See paragraphs 209 to 216.

Criminal Law - Topic 2247

Wilful acts respecting property - Mischief - Elements - Obstruction or interference with use, enjoyment or operation of property - The Crown alleged that the accused assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" at Calgary's McDougall Centre - Alberta's Premier was the featured host - The accused was charged with five offences including, obstructing, interrupting or interfering with the lawful use of property - The Crown and the accused agreed that the court's assessment of evidence relating to the alleged interruption or interference would commence only with the sequence where the accused projected pie - The Alberta Provincial Court held that, on the restricted evidence, it could not conclude whether the accused's actions caused the breakfast to be curtailed, service to be interrupted and the crowd to disperse, or whether the interruption was brought about in whole or in part, by the Sheriffs' actions in restraining the accused - The sequence that followed, where the accused broke free of her handcuffs and remained vocal and resistant while being escorted from the scene, was not a contributing factor to the interruption - The activities were not shown to have caused any added disruption following the original sequence where pie was thrown and the accused restrained - The court could not conclude that the accused's behaviour in and of itself amounted to a wilful obstruction, interruption or interference with the lawful enjoyment of the McDougall Center - See paragraphs 197 to 208.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The Crown alleged that the accused, inter alia, assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" - Alberta's Premier was the featured host - The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie - The Alberta Provincial Court stated that none of the issues could be properly addressed without an assessment of the accused's credibility, the credibility of other witnesses and the reliability of their evidence - The court referred to case law to be applied respecting credibility - See paragraphs 81 and 83 to 87.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 5364

Evidence and witnesses - Photographs, movies, videotapes, audio tapes, etc. - General principles - Weight - The Crown alleged that the accused, inter alia, assaulted an Alberta Sheriff during a Calgary Stampede breakfast social gathering known as the "Premier's Breakfast" - Alberta's Premier was the featured host - The allegations of assault to the Sheriff followed what the Crown said was an effort by the accused to throw and strike the Premier with cream pie - The contents of a television broadcast capturing certain of the events that occurred at the breakfast, contained on a compact disc, were entered into evidence - The identification of the relevant parties was not in issue - Counsel agreed that the commentator's oral narrative should be given no weight and that the remaining portions, both audio and visual, were admissible to assist the court with understanding and accurately interpreting the events in the context of these charges - The Alberta Provincial Court determined the probative value and weight to be given to the admissible portions - See paragraphs 109 to 121.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 83].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 83].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 203 C.C.C.(3d) 316 (C.A.), refd to. [para. 85].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177; 197 C.C.C.(3d) 407 (C.A.), refd to. [para.86].

R. v. Kamboj (B.S.), [2009] A.R. Uned. 191; 2009 ABPC 37, refd to. [para. 87].

R. v. White, [1947] S.C.R. 268; 89 C.C.C. 148, refd to. [para. 87].

R. v. Covert, [1917] 1 W.W.R. 919; 10 Alta. L.R. 349; 28 C.C.C. 25 (C.A.), refd to. [para. 87].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1; 111 C.C.C.(3d) 403, refd to. [para. 115].

R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 393; 99 N.R. 345; 99 A.R. 291, refd to. [para. 115].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 115].

R. v. Deakin (1974), 16 C.C.C.(2d) 1 (Man. C.A.), appld. [para. 155].

R. v. Latimer, [1886-90] All E.R. Rep. 386; 17 Q.B.D. 359, refd to. [para. 155].

R. v. Davis (M.) (1995), 170 A.R. 238; 30 Alta. L.R.(3d) 361 (Prov. Ct.), refd to. [para. 155].

R. v. Abbaya (F.E.) (2000), 289 A.R. 82 (Prov. Ct.), refd to. [para. 155].

R. v. Gordon (M.A.) (2009), 246 O.A.C. 239; 94 O.R.(3d) 1 (C.A.), refd to. [para. 155].

R. v. D.M.I. (2009), 478 A.R. 288; 2009 ABPC 127, refd to. [para. 161].

R. v. Plamondon (K.R.) (1997), 101 B.C.A.C. 1; 164 W.A.C. 1; 121 C.C.C.(3d) 314 (C.A.), refd to. [para. 167].

R. v. Maddeaux (L.) (1997), 98 O.A.C. 358; 6 C.R.(5th) 176 (C.A.), refd to. [para. 170].

R. v. Osborne (S.C.) (2007), 317 N.B.R.(2d) 39; 819 A.P.R. 39; 78 W.C.B.(2d) 89 (Prov. Ct.), refd to. [para. 171].

R. v. Hnatiuk, 2000 ABQB 314, refd to. [para. 172].

R. v. Erickson and Hathaway, [1997] 4 W.W.R. 374; 5 A.R. 602 (T.D.), refd to. [para. 180].

R. v. Lohnes, [1992] 1 S.C.R. 167; 132 N.R. 297; 109 N.S.R.(2d) 145; 297 A.P.R. 145; 69 C.C.C.(3d) 289; 10 C.R.(4th) 125, appld. [para. 182].

R. v. Peters (1982), 27 C.R.(3d) 246 (B.C.C.A.), refd to. [para. 185].

R. v. Wicken (D.S.) (2003), 341 A.R. 155; 56 W.C.B.(2d) 379; 2003 CarswellAlta 51 (Prov. Ct.), refd to. [para. 188].

R. v. Terrigno (M.) (1995), 175 A.R. 100; 101 C.C.C.(3d) 346 (Prov. Ct.), refd to. [para. 189].

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. 191].

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. 192].

R. v. Winters (T.L.) (2002), 222 Sask.R. 16; 54 W.C.B.(2d) 94 (Prov. Ct.), refd to. [para. 215].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 224].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35, refd to. [para. 224].

R. v. Clark (M.B.) (2008), 433 A.R. 363; 429 W.A.C. 363; 234 C.C.C.(3d) 12 (C.A.), refd to. [para. 225].

R.v. D.B.B. (2009), 448 A.R. 146; 447 W.A.C. 146; 2009 ABCA 15, refd to. [para. 227].

Authors and Works Noticed:

Watt's Manual of Criminal Evidence (2007), § 12.01[para. 187, footnote 26].

Counsel:

L. Robertson, for the Crown;

M. Takada, for the accused.

This case was heard by Cummings, P.C.J., of the Alberta Provincial Court, who delivered the following decision on June 26, 2009.