R. v. Whatcott (W.G.), (2005) 266 Sask.R. 262 (QB)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 30, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 266 Sask.R. 262 (QB);2005 SKQB 302

R. v. Whatcott (W.G.) (2005), 266 Sask.R. 262 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JL.050

William G. Whatcott (appellant) v. Her Majesty the Queen (respondent)

(2003 Q.B.G. No. 101; 2005 SKQB 302)

Indexed As: R. v. Whatcott (W.G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

McIntyre, J.

June 30, 2005.

Summary:

The accused was convicted of: (1) causing a disturbance in or near a public place by shouting; and (2) resisting a peace officer engaged in the lawful execution of his duty by refusing to accompany officers after being placed under arrest. On each count, he was fined $800 with a $120 surcharge. The accused appealed from both conviction and sentence.

The Saskatchewan Court of Queen's Bench allowed the conviction appeal and set aside the convictions.

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 - The accused was participating in an abortion protest - Police decided to arrest the accused for causing a disturbance by shouting - When told that he was being arrested, the accused remarked that he would not go - He sat on the sidewalk and crossed his arms and legs - Two officers picked the accused up and carried him - The accused was carried eight to 10 feet and then got into the police car on his own - The accused was convicted of resisting a peace officer in the lawful execution of his duty, contrary to s. 129(1) of the Criminal Code - The Saskatchewan Court of Queen's Bench set aside the conviction - The trial judge characterized what occurred as passive resistance - Passive resistance did not constitute resisting arrest - There was no active resistance by the accused - See paragraphs 16 to 23.

Criminal Law - Topic 751

Sexual offences, public morals and disorderly conduct - Disorderly conduct - Causing a public disturbance - The accused was convicted of causing a disturbance in a public place by shouting, contrary to s. 175(1)(a)(i) of the Criminal Code - The charge arose from the accused's participation in an abortion protest - The Saskatchewan Court of Queen's Bench set aside the conviction - While the trial judge found that the shouting became loud enough and distracting enough to cause a disturbance, he made no finding of any manifest interference with the ordinary and customary use of the premises by the public - There was no evidence that the accused's actions created a traffic hazard or that he prevented the movement of pedestrians or traffic - While a witness who worked nearby testified that she was disturbed by the accused's actions and that customers had complained to her about the content of his demonstration, that amounted to an emotional disturbance, which was not sufficient for a conviction under s. 175(1)(a) - See paragraphs 8 to 15.

Criminal Law - Topic 4591

Procedure - Costs - Against the Crown - [See Criminal Law - Topic 4593 ].

Criminal Law - Topic 4593

Procedure - Costs - For oppressive, improper, abusive, frivolous, etc. conduct - The accused was participating in an abortion protest when he was arrested for causing a disturbance - He was subsequently convicted of causing a disturbance in a public place by shouting and resisting a peace officer engaged in the lawful execution of his duty by refusing to accompany officers after being placed under arrest - The Saskatchewan Court of Queen's Bench allowed an appeal by the accused and set aside the convictions - The court denied the accused's claim for solicitor/client costs - The court rejected the accused's suggestion that the real motive of the police in arresting him was to stop the abortion protest - There was no evidence of any oblique motive on the part of the police or the Crown - See paragraphs 24 to 27.

Practice - Topic 7350

Costs - Costs in criminal proceedings - Payable by Crown - Conduct of Crown - [See Criminal Law - Topic 4593 ].

Cases Noticed:

R. v. Lawrence (R.C.), [1992] 5 W.W.R. 659; 132 A.R. 194; 74 C.C.C.(3d) 495 (Q.B.), affd. [1993] 7 W.W.R. 121; 141 A.R. 183; 46 W.A.C. 183; 81 C.C.C.(3d) 159 (C.A.), leave to appeal denied, [1993] 3 S.C.R. vii; 163 N.R. 80; 149 A.R. 160; 63 W.A.C. 160; [1994] 7 W.W.R. lxvii; 83 C.C.C.(3d) vi, consd. [para. 5].

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, consd. [para. 8].

R. v. Terrigno (M.) (1995), 175 A.R. 100; 101 C.C.C.(3d) 346 (Prov. Ct.), consd. [para. 10].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 16].

R. v. Stortini (1978), 42 C.C.C.(2d) 214 (Ont. Prov. Ct.), consd. [para. 19].

R. v. Bentley, [2003] Q.J. No. 16091 (Mun. Ct.), consd. [para. 21].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 25].

R. v. Jones (K.A.), [2000] 11 W.W.R. 587; 273 A.R. 317; 2000 ABQB 544, refd to. [para. 26].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1985, c. C-46. sect. 129, sect. 175 [para. 1].

Counsel:

Thomas A. Schuck, for the appellant;

Thomson Irvine and Brian Hendrickson, for the Crown.

This appeal was heard before McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following decision on June 30, 2005.