



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kukemueller, 2014 ONCA 295

DATE: 20140417

DOCKET: C57836

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Kukemueller

Appellant

Justin Kukemueller, appearing
    in person

Gerrit Kukemueller,
    appellants father appearing on his behalf

Michael Medeiros, for the
    respondent

Heard: March 11, 2014

On appeal from the judgment of Justice Mary E. Vallee of
    the Superior Court of Justice, dated October 1, 2013 dismissing a summary
    conviction appeal from the conviction entered by Justice Lisa Cameron of the
    Ontario Court of Justice on August 31, 2012.

Sharpe J.A.:

[1]

Justin Kukemueller was convicted of causing a disturbance in or near a
    public place contrary to s. 175(1) (a) of the
Criminal Code
.

[2]

The charges arose from an incident that took place at a rural property near
    the Town of Buckhorn in the early evening on July 30, 2011. The local fire
    department received a call to attend the address of the appellant to deal with
    a car that was on fire. The car belonged to the appellants girlfriend,
    Caitlynn Wiles. It had crashed into a tree and it was on the appellants
    property. While en route to the fire, the fire department requested police
    assistance.

[3]

There was a crowd of young people at the scene. They appeared to have
    been drinking. The firefighters extinguished the fire. On arrival at the scene,
    the police officer learned that the vehicle fire may have been caused by people
    playing demolition derby. The police officer spoke to the appellant and to
    Ms. Wiles. They both smelled of alcohol. Ms. Wiles told the police officer that
    she had been driving the car when it hit the tree. The police officer arrested
    her for dangerous driving following which a struggle ensued between the police
    officer and Ms. Wiles. The appellant and some of his friends became upset. The
    police officer used her emergency button to request backup. The police officer,
    accompanied by one of the firefighters, took Ms. Wiles to the cruiser at the
    road and the crowd of young people started yelling. The appellant was upset and
    yelling and swearing.

[4]

More police arrived and, not long afterwards, so too did the appellants
    father driving an off-road vehicle. He was arrested for impaired driving.

[5]

At that point, the appellant reacted with a loud, profane and angry tirade
    against the police. About 22 people, including family members, friends,
    firefighters and police officers, were present. The appellant was arrested and
    charged with causing a disturbance. He was later charged with assaulting a
    civilian cell monitor at the police station.

[6]

The charges against Ms. Wiles were ultimately stayed. The charges
    against the appellants father were dismissed at trial on the basis that there
    were no reasonable grounds on which to arrest him and, therefore, his arrest
    was unlawful.

Trial

[7]

At trial, as on this appeal, the appellant was represented by his
    father. A number of issues were raised including several alleged breaches of
    the
Charter
. The focus of the defence was that the police were
    trespassers on the appellants property.

[8]

The trial judge found that the appellants 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. The
    appellants behaviour, she found, made things worse. She dismissed the
Charter
arguments and concluded that the appellant had caused a disturbance.

[9]

The assault charge was based on the allegation that the appellant had
    scooped water from the toilet, thrown it around and got some of it on the cell attendants
    pants. The trial judge was not satisfied that the appellant had deliberately
    splashed water on the attendant and she acquitted the appellant of that charge.

Summary conviction appeal

[10]

The
    appellants appeal to the Superior Court of Justice was dismissed.  Again the
    appellant was represented by his father who focussed on the argument that the
    police were trespassers and that as result, their actions were unlawful and
    that the appellants
Charter
rights were violated. The summary
    conviction appeal judge rejected those arguments and affirmed the trial judges
    finding that because the appellants conduct contributed to raising the
    tension at the scene, the offence of causing a disturbance was made out.

Issues

[11]

Mr.
    Kukemueller seeks leave to appeal to this court essentially on the same grounds
    advanced on the summary conviction appeal.

[12]

The
    test for leave to appeal from a summary conviction appeal is set out in
R.
    v. R.R
., 2008 ONCA 497 at para. 37

[13]

I
    see no merit in the submissions that the police were trespassers on the
    appellants property, that the appellants
Charter
rights were
    violated, or that the alleged disturbance did not occur in public or in a
    public place. I would refuse leave to appeal on those grounds

[14]

However,
    I would grant leave to appeal with respect to the legal elements of the offence
    of causing a disturbance. I recognize that both the trial and the summary
    conviction appeal judge cited the relevant case law. However, accepting the
    facts as found by the trial judge, in my respectful view, both the trial judge
    and the summary conviction appeal judge failed to apply the governing principle
    that emerges from the cases. This gives rise to an error of law: see
R. v.
    Morin
, [1992] 3 S.C.R. 286 at p. 294;
R. v. Luedecke
, 2008 ONCA 716,
    93 O.R. (3d) 89, at para. 48. As in
Morin
, my disagreement is with
    respect to the law and not the facts nor the inferences to be drawn from the
    facts. There is a legal issue of general public importance bearing upon
    interactions between the public and the police, and for that reason, I would
    grant leave to appeal.

Analysis

[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 persons 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
    publics 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 appellants
    conduct fired up the crowd: see Lang J.A., dissenting, at para. 35. This is
    very similar to the trial judges finding in this case that the appellants
    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
    speakingshouting 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.

[25]

In
    my view, the trial judge and the summary conviction appeal judge erred in law
    by concluding that the appellants conduct satisfied the second element of the
    offence  causing a disturbance in or near a public place  as defined in
Lohnes
and
Swinkels
. There was no evidence and no finding that the
    appellants conduct interfered with the publics normal activities or with the
    ordinary and customary use by the public of the place in question. Contributing
    to raising the tension at the scene of an interaction between the police and
    the public does not amount to the kind of disturbance that is required for this
    offence to be made out.

[26]

On
    appeal, the Crown relies on evidence that the appellants grandmother came out
    of her house and tried to calm him down. The appellants grandmother was simply
    concerned about his well-being. She thought that he would listen to her. She
    testified that she was upset but, as I have explained, emotional upset does
    not amount to a disturbance.

Conclusion

[27]

While
    I certainly do not condone yelling obscenities at the police, the issue for
    this court is not whether the conduct of the appellant was obnoxious or
    deplorable but whether it was criminal. In my view, it was not and it follows
    that this appeal should be allowed and the conviction for causing a disturbance
    set aside. I would deny the appellants request for costs as the circumstances
    of this case do not meet the stringent test for awarding costs against the Crown.

Robert J. Sharpe J.A.

I agree E.E. Gillese
    J.A.

I agree Paul Rouleau
    J.A.

Released: April 17, 2014


