Apr 24, 2014

Is swearing at police a criminal disturbance?

R. v. Kukemueller, 2014 ONCA 295 (CanLII)
Synopsis: Justin Kukemueller appealed his conviction of causing a disturbance in or near a public place (Criminal Code, s. 175(1)(a)). The Appellant’s girlfriend, Ms. Wiles, drove a car into a tree on the Appellant’s rural property. It caught on fire and the police and fire department showed up. There was a crowd of young people at the scene and it appeared that everyone had been drinking. The police arrested Ms. Wiles for dangerous driving, after which she struggled and was finally put in a cruiser. The crowd including the Appellant, who started yelling and swearing. More police arrived. Soon after the Appellant’s father arrived on an off-road vehicle and was arrested for impaired driving. This caused the Appellant to react “with a loud, profane and angry tirade against the police” (para. 5). About 22 people were present. He was arrested and charged with causing a disturbance. (Later also charged for throwing toilet water on an employee at the police station, but was acquitted on that charge.)
The charges against Ms. Wiles were stayed and the charges against the Appellant’s father were dismissed at trial. The Appellant wasn't (initially) so lucky. At trial, the Appellant was represented by his father. The trial judge found the Appellant’s “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” (para. 8). She concluded the Appellant had caused a disturbance. The summary conviction appeal was dismissed. The Court of Appeal, however, granted leave to appeal and allowed the appeal and set aside the conviction (for causing a disturbance).
Importance: The decision demonstrates the narrow approach taken by courts to determine what amounts to a criminal disturbance. The Court of Appeal granted leave to appeal because there was “a legal issue of general public importance bearing upon interactions between the public and the police” (para. 13). Specifically, the trial judge and the summary conviction appeal judge failed to apply the governing principles from leading cases: R. v. Lohnes, [1992] 1 S.C.R. 167 & R. v. Swinkels, 2010 ONCA 742. The issue was whether the Appellant’s acts (shouting, swearing etc.) “cause[d] a disturbance in or near a public place” (para. 17).
The Court of Appeal applied the SCC's narrow approach: “the more restrictive and concrete approach, based upon an interference with the use of a public place rather than mental or emotional upset, provides a sound basis upon which to achieve a ‘balance between the individual interest in liberty and the public interest in going about its affairs in peace and tranquility’” (para. 20). It noted that even if the recipients of the obscenities are police that does not necessarily amount to a disturbance. There must be evidence that the “conduct interfered with the public’s normal activities or with the ordinary and customary use by the public of the place in question” (para. 25). The question is not whether the conduct is “obnoxious or deplorable but whether it was criminal” (para. 27).