Tuesday, April 22, 2014

Causing a disturbance

R. v. Kukemueller, 2014 ONCA 295:

[15]       The Criminal Code, s. 175(1)(a) provides that everyone commits an offence who “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…”
[16]       The leading case interpreting s. 175(1)(a) is R. v. Lohnes, [1992] 1 S.C.R. 167. McLachlin J., writing for a unanimous court, stated at p. 171 that there are two elements to this offence, first, the commission of one of the enumerated acts; and second, that the commission of those acts caused a disturbance in or near a public place.
[17]       There is no doubt that by yelling and swearing at the police, the appellant committed one of the enumerated acts. The question is whether those acts “cause[d] a disturbance in or near a public place”.
[18]       In Lohnes, McLachlin J. reviewed the jurisprudence as it stood at the time as to the meaning of “disturbance”. She identified two lines of authority. Some cases adopted what she described at p. 173 as “an expansive approach” in which the offence was made out where the specified conduct “disturbs or could reasonably be inferred as disturbing another person”. Other courts took a more limited approach and rejected the proposition that the “the mere disturbing of the peace or tranquility of one person’s mind” was sufficient.
[19]       McLachlin J. rejected the expansive approach and concluded, at p. 177, that for the second element of a disturbance to be made out, “the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question”. She added, at p. 178 that disturbance in this context “involves more than mere mental or emotional annoyance or disruption” and, at pp. 178-9, that the aim of the offence is “not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public’s normal activities” and interference “with the ordinary use of a place”.
[20]       At pp. 180-1, McLachlin J. explained that 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.” 
[21]       In Lohnes, the appellant had shouted obscenities at his neighbour from his own veranda. The Supreme Court held that even if this caused emotional disturbance or annoyance to the neighbour, it did not constitute a “disturbance in or near a public place” because upset does not amount to interference with the ordinary and customary use of the premises by the public.
[22]       Lohnes was applied by this court in R. v. Swinkels, 2010 ONCA 742, 103 O.R. (3d) 736 where the accused was part of a group yelling obscenities outside a bar at closing time. The police heard the yelling, proceeded to investigate and the accused came towards them yelling further obscenities and holding out his arms with his middle fingers up. The police charged the accused with causing a disturbance and he was convicted. There was “evidence that the appellant’s conduct fired up the crowd”: see Lang J.A., dissenting, at para. 35. This is very similar to the trial judge’s finding in this case that the appellant’s conduct had “contributed to raising the tension at the scene”.
[23]       The majority (LaForme J.A., Feldman J.A. concurring) allowed an appeal from conviction, holding that even where the shouting is done and a crowd gathers, the Crown must still prove more to establish the second element of the offence, namely, that the conduct caused 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. The majority stated, at para. 18: “Generally speaking…shouting obscenities at police officers is not a disturbance in and of itself”. The majority added, at para. 28: “…a ‘public disturbance’ requires more than a crowd observing – or even shouting anti-police sentiments at – police officers in the course of arrest.”

[24]       As the majority in Swinkels noted, there are several cases rejecting the proposition that merely yelling obscenities at the police amounts to the offence of causing a disturbance. In R. v. Osbourne, 2008 ONCJ 134, 78 W.C.C. (2d) 205 the trial judge acquitted an accused who hurled abuse at the police and attracted a crowd of ten to fifteen people who yelled anti-police sentiments. See also R. v. Wolgram (1975), 29 C.C.C. (2d) 536 (B.C.S.C.); R. v. Peters (1982), 65 C.C.C. (2d) 83 (B.C.C.A.); R. v. L.A., 2005 ONCJ 546, 72 W.C.B. (2d) 490.

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