[1] The accused face several Criminal Code charges laid as the result of events at the Britannia Community Centre in Vancouver on 3 October 2002. The Premier of British Columbia was to have presided at the official opening of an adjunct to the Community Centre called the Family Literacy Centre. Attendance was by invitation, but the event attracted the interest of a number of people who intended to peacefully demonstrate their concern about the educational policies of his government.

[2] The opening had been scheduled for 3:00 p.m., but shortly before then, the organizers learned that the Premier would not be coming, apparently because of concern that demonstrators at an appearance he had made earlier in the day would show up at the Britannia Community Centre and disrupt the event there. In the meantime, members of both the motorcycle and bicycle contingents of the Vancouver City Police Department had arrived, making a conspicuous police presence.

[3] Although the Premier did not come, the arrest of a protester, Mr. George Feenstra, triggered events that turned a generally peaceful gathering into a loud and angry one, of which the present charges are the result.

[4] Two of the defendants, Messrs. Bush and Rohan, argue that should I find against them on the merits, I should direct a stay of the proceedings against them as the appropriate remedy for violations of their rights under the Canadian Charter of Rights and Freedoms.

[5] Mr. Feenstra himself was charged with a number of offences which were finally dismissed when, on 2 April 2004, I delivered reasons for judgment concerning the charges against him [sub nom. Regina v. Feenstra]. Some of the charges against the remaining defendants were dismissed on motions at the end of the Crown's case. There remain to be decided these charges against Mr. Ivan Drury, Mr. Murray Bush, Mr. Scott Rohan and Mr. Justin Goodman:

That:

Count 3: Ivan Donald Drury, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, did wilfully obstruct Mark Steinkampf, a peace officer to wit: a police constable for the City of Vancouver, engaged in the execution of his duty under the Criminal Code of Canada by preventing the lawful arrest of a person by use of force contrary to Section 129(a) of the Criminal Code.

Count 5: Murray Douglas Bush, Ivan Donald Drury, Scott Michael Rohan, Justin Raymond Goodman, on or about the 3^rd day of October, 2002, at or near the City of Vancouver, in the Province of British Columbia, were members of an unlawful assembly at Brittania [sic] Community Centre, contrary to Section 66 of the Criminal Code.

Count 6: Murray Douglas Bush, Scott Michael Rohan, Justin Raymond Goodman, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, not being in a dwelling house, did cause a disturbance in or near a public place, The Brittania [sic] Community Centre, by shouting, swearing and using obscene language, contrary to Section 175(1)(a) of the Criminal Code.

Count 8: Justin Raymond Goodman, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, did assault PC 139 Hemm, a peace officer engaged in the execution of his duty, contrary to Section 270(2) of the Criminal Code.

Count 9: Scott Michael Rohan, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, did assault Sgt. 976 Hobbs, a peace officer engaged in the execution of his duty, contrary to Section 270(2) of the Criminal Code.

Count 13: Justin Raymond Goodman, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, did wilfully obstruct a peace officer, PC 1351 Cope, in the execution of his duty, contrary to section 129(a) of the Criminal Code.

Count 14: Murray Douglas Bush, on or about the 3^rd day of October, 2002, at or near Vancouver, in the Province of British Columbia, did assault PC 1959 Harty, a peace officer engaged in the execution of his duty, contrary to section 270(2) of the Criminal Code.

[6] What follows is a broad description of the events of that afternoon upon which I will elaborate as necessary later in these reasons when I discuss specific counts.

[7] There were three pivotal events: the arrest of Mr. Feenstra, a later impasse at the police wagon in which he was to be transported to the Vancouver Jail, and the arrest of N., a boy of about 15 years of age.

i. The Arrest of Mr. George Feenstra

[8] I am satisfied that most of those who came to the Britannia Community Centre that afternoon did so to express themselves in a lawful way. At first the crowd was largely good-humoured, but even at the start there was a certain tension. Mr. Enzo Guerriero was the Executive Director of the Britannia Community Centre. He stood outside the Family Literacy Centre to greet guests, some of whom, he said, were surprised and anxious at having to pass through what he called "a gauntlet" of demonstrators. More troubling was a small number of ostensible demonstrators, perhaps half a dozen or so, with covered faces.

[9] Near 3:00 p.m. Mr. Feenstra was arrested. I described the circumstances of his arrest in detail in my earlier reasons for judgment. He had been wearing a clown's nose and improvising a kind of satirical sketch when he approached the door to the Family Literacy Centre where Mr. Guerriero stood, with Constables Green and Pacey standing nearby. They were close together, and it appeared to the two officers that Mr. Feenstra deliberately struck Cst. Pacey. I concluded that the circumstances were at least ambiguous, and that if Mr. Feenstra struck her, his doing so might have been accidental, although the officers honestly and reasonably believed that he had acted deliberately. As a result, they chose to arrest Mr. Feenstra and to take him into custody rather than release him then and there, and they began to move him around the side of the building where he could be put into a police wagon for transport to the jail. I think that most of the crowd would not have seen any apparent assault, and for them, Mr. Feenstra's arrest might have appeared to have had no justification, so that his transformation from street clown to prisoner was shocking and inexplicable.

[10] The arrest of Mr. Feenstra was a critical moment. Perhaps fifty people had been gathered around the entrance to the Literacy Centre, and as the arresting officers tried to move Mr. Feenstra, many of them pressed in towards them, tension mounted, and cries of "Let him go, let him go" and "Free the clown" went up. Others joined the crowd. Csts. Green and Pacey handed Mr. Feenstra over to Csts. Porret and Soo, who were forced to travel along the wall of the building where the footing was uneven. They had their arms locked under Mr. Feenstra's so tightly that he was bent over, with his torso almost parallel to the ground. Mr. Feenstra's head hit the wall, whether by accident or design a matter of dispute. There was some evidence that the police wilfully slammed his head into the wall, but Mr. Feenstra's account of it was simply:

I don't know how it came about exactly, but I found myself pressed against the wall with my face against the wall....

Csts. Porret and Soo said that the three men slipped and fell against the wall.

[11] I think it improbable that Csts. Porret and Soo deliberately slammed Mr. Feenstra's head against the wall while surrounded by dozens of angry witnesses, but it was a confused scene, and the handling of Mr. Feenstra was forceful, more forceful, in my view, than was either wise or necessary. Some onlookers were already convinced that he had been unjustly arrested, so the conditions were ideal for the perception that abuse was being heaped on abuse.

[12] A number of police officers formed a barrier between the crowd and the three men, and a wedge of police officers cleared a way through the crowd so that Mr. Feenstra could be put in the waiting police wagon.

ii. The Impasse at the Police Wagon

[13] Inspector Huston was the senior police officer present. He arrived at the police wagon about 3:00 p.m. to find what he described as a loud and angry crowd numbering, he thought, about two hundred. He was undoubtedly right in his opinion that the arrest of Mr. Feenstra had made the police the target of the demonstration. As well as cries of "Let the clown go" and "Free the clown", some in the crowd were now shouting hostile obscenities of which "Fuck the pigs" and "Pigs go home" were typical. Two of the persons with covered faces moved a large dumpster partially into the path of the wagon. Someone else threw down wooden pallets to block its way. About twenty people sat down in front of it. To Insp. Huston, a man of some twenty-six years of police experience, it was a volatile situation with violent potential.

[14] Thirty to forty-five minutes after his arrival at the wagon, unable to convince those sitting in front of it to let it leave, Insp. Huston instructed Sergeant Neil Munro to remove them. Sgt. Munro and the members under him advanced briskly in front of the wagon. Some people they simply lifted out of the way; in the case of others, they used "compliance techniques", methods designed to inflict discomfort or pain and secure the co-operation of the person affected. Videotape shows Sgt. Munro himself several times push a man out of the way who repeatedly refused to clear off. When the wagon got going, much of the crowd rushed as if to follow it.

iii. The Arrest of N.

[15] The wagon was still present as the scene became more congested shortly after 3:00 p.m. when the nearby elementary and secondary schools let out. One of the students was N., a boy of about 15 who, in the opinion of most witnesses, looked much younger. Whether or not N. had any clear idea of what had been happening before his arrival, he followed the lead of a vocal minority of those present and hurled epithets at police officers of which "Fuck you, you fucking pig", "Fuck off pigs", and "Die pigs" were characteristic. He tried to push Cst. Wickstead as he removed a pallet from the path of the wagon. Although he was asked by more than one officer to leave, he did not. Matters came to a head when he assaulted Cst. Porret.

[16] Cst. Porret recalled that N. struck his right shoulder with an open hand. Other officers testified that N. punched Cst. Porret in the back or in the head. Cst. Porret's reaction to the assault was, in his expression, to "straight-arm" N., by which he apparently meant that he extended his arm, palm open, to push N. away. In doing so he struck N. in the face causing a swollen and cut lip. In the meantime, Cst. Porret was kicked at by some in the crowd.

[17] One of those who saw the assault on Cst. Porret was Cst. Harty, who recalled that N. punched Cst. Porret in the back. Cst. Harty had noticed N. earlier, shouting vulgar epithets, and when he saw him assault Cst. Porret, he and his partner Cst. Alonso arrested him. The reaction of the crowd to N.'s arrest was immediate. Cst. Harty started to walk N. away from the scene in order to complete the formalities of the arrest elsewhere, but he was jostled, hit and screamed at, and when he answered a woman who had asked him why he had arrested the boy, she reacted by spitting in his face.

[18] Cst. Harty picked N. up in a kind of bear hug, apparently thinking that in that way he would make faster progress through the crowd. It was then that the defendant Mr. Bush intervened, the incident which underlies the charge against him of assaulting Cst. Harty. I will describe it in the next section of these reasons when I discuss the charges against the defendants.

[19] I will first discuss the charges against individual defendants, since my conclusions concerning them will be relevant to the joint charges of membership in an unlawful assembly and causing a disturbance.

i. Scott Michael Rohan

Count 9: Assaulting Sgt. Hobbs

[20] Shortly after the police wagon left, Cst. Trevor Hermann, one of the officers who had cleared a way for it, saw a quick movement in the crowd. It appeared to be a person throwing an object overhand. He described in his testimony how he followed the object with his eyes and saw the follow-through of an arm clad in red. He thought the object was a bottle of water. It struck Sgt. Hobbs on the head. Cst. Hermann described the person responsible as a large white male in a red sweater. He moved into the crowd - "waded" was his term - within a second or two of seeing the object thrown, and arrested the defendant Rohan, who was conspicuous in his red sweater. Sgt. Hobbs also thought that Mr. Rohan had thrown the object, but he was less certain than Cst. Hermann.

[21] Cst. Alonso also testified that he saw an overhand swing, this time followed by an object that he described as a can of pop sailing through the air. It struck Cst. Wickstead in the head.

[22] Videotape of events around the wagon shot by Cst. Alan Dunn appears to show an arm attired not in red but in a darker colour emerge from the crowd near Mr. Rohan and lob what may be a soft-drink can towards the police. Moments after, Mr. Rohan was arrested. Despite the appearance from this that someone near Mr. Rohan was responsible, and not Mr. Rohan himself, Cst. Hermann was resolute that it was Mr. Rohan whom he saw throw a bottle of water towards the line of officers. The Crown has argued that there were two incidents: the one involving Mr. Rohan, described by Cst. Hermann, and a second one involving some other person, described by Cst. Alonso and captured on videotape.

[23] There may have been two incidents, but I should be cautious in making such a finding. Cst. Hermann's personal conviction, however sincere, adds nothing to the weight of his evidence, and I cannot exclude error by him as the explanation of the apparent contradiction between his testimony about the incident and what appears on the videotape. I cannot say that the evidence against Mr. Rohan on this count excludes all reasonable doubt, and I find him not guilty.

ii. Justin Raymond Goodman

a. Count 8: Assaulting Cst. Hemm

[24] As Csts. Porret and Soo tried to remove Mr. Feenstra to the police wagon, some of the crowd used a board of about 4 feet by 8 feet to push against the small semi-circle of police officers who had assembled around them to keep the crowd back. Among those officers were Csts. Hemm and Wickstead. The Crown contends that Mr. Goodman was one of those pushing the board against the police and that by doing so committed an assault against Cst. Hemm.

[25] The identification of Mr. Goodman depends upon the evidence of Cst. Wickstead who stood beside Cst. Hemm. Cst. Wickstead testified that some of those pushing against the police were also punching at them. He said that Cst. Hemm pulled down the bandana worn by one of them, and although it was down only momentarily before its wearer replaced it, that was long enough for him to identify the person as Mr. Goodman. Not long afterwards, Cst. Wickstead and Cst. Cope arrested Mr. Goodman when he and another man wheeled a large rubbish dumpster into the path of the wagon.

[26] Unlike Cst. Wickstead, Cst. Hemm did not identify Mr. Goodman and said nothing about unmasking one of the demonstrators. Nor did he testify that certain of the people behind the board, including Mr. Goodman, punched at the police officers. It is somewhat surprising that Cst. Hemm gave no evidence about these incidents, which seem to me memorable ones, but it was a tense and eventful afternoon, and he may have forgotten them, or his failure to testify to them may simply be oversight. Whatever the explanation, however, I conclude that there is some doubt concerning this charge, and I find Mr. Goodman not guilty of it.

b. Count 13: Obstructing Cst. Cope

[27] This count concerns an incident I briefly described in the previous section. Mr. Goodman and another male person removed a large rubbish dumpster from the alcove in which it was kept and wheeled it into the path of the police wagon, forcing the wagon to stop. Mr. Goodman was promptly arrested by Csts. Cope and Wickstead. It was suggested in argument that this did not amount to an obstruction of Cst. Cope as alleged in the information. I do not agree. Cst. Cope's duties included assisting in the arrest and removal of Mr. Feenstra from the scene, and in putting a large object in the path of the wagon and forcing it to stop, Mr. Goodman clearly obstructed the performance of that duty. Accordingly, I find him guilty.

iii Murray Douglas Bush

Count 14: Assaulting Cst. Harty

[28] This charge concerns Mr. Bush's interference with Cst. Harty to which I alluded earlier in these reasons.

[29] I am satisfied that N. struck Cst. Porret. It was a minor assault, a push or punch to the back or shoulder, and in other circumstances would have been little more than an annoyance, but it was not N.'s only part in what was happening around the wagon. Some police officers thought he was trying to work the crowd up. Whether or not he was, he was making a deliberate and noisy contribution to the disturbance, moving about the crowd hollering expletives. As well as striking Cst. Porret, he had tried to push Cst. Wickstead when he bent over to remove a pallet that had been put in the way of the wagon. Cst. Wickstead and other police had asked him to leave but he had not. It was reasonable that after arresting him Cst. Harty would want to remove him from the crowd. In my view, N. was lawfully arrested, his young age and small size notwithstanding. The way in which Cst. Harty arrested him, while forceful, was not harmful in itself, and I am satisfied that it was justified and reasonable in the circumstances.

[30] It was as Cst. Harty was carrying N. off that Mr. Bush intervened. He testified that he had come to the Community Centre in order to take photographs at the request of an organizer of the demonstration that had been planned for the Premier's visit, and when the visit was cancelled and Mr. Feenstra was arrested, he had stayed behind as the focus of the crowd shifted. He saw Cst. Harty carrying N. who he said was crying, terrified and bleeding from the mouth. He said that he yelled for Cst. Harty to stop, raised his hands to shoulder level and grabbed Cst. Harty's shirtsleeves. He described Cst. Harty as "out of control." He said that Cst. Harty pushed him to the ground whereupon someone landed several kicks to his head before he was brought to his feet.

[31] Cst. Harty testified that Mr. Bush ran straight at him from the right side with his fists clenched, grabbed his sleeve and threw his arm around him and N. with the result that all three fell and Cst. Harty suffered a painful rib injury. Other police officers suggested that Mr. Bush tackled Cst. Harty, and one went so far as to say that his feet left the ground when he flew at him.

[32] The reality was not as dramatic, but neither was it as restrained as Mr. Bush testified. There is videotape evidence of this incident and the events leading up to it, and a still photograph, Ex. 21, which appears to have been taken a split second before Mr. Bush took hold of Cst. Harty and N. They support the tenor of the evidence of the police witnesses. Mr. Bush lowered his camera and moved towards Cst. Harty quickly, purposefully and with momentum enough to push Cst. Harty, a big man, and N. several feet back to the wall of an adjacent building where all three fell to the ground. I have concluded that Cst. Harty was in the execution of his duty as he removed N. and was by no means "out of control". There was no lawful justification for what Mr. Bush did. This count is proved against him.

iv. Ivan Donald Drury

Count 3: Obstructing Cst. Steinkampf

[33] After the wagon had left, Cst. Mark Steinkampf was one of several police officers who had formed a line facing the crowd. He testified that a dark-skinned man made his way through the crowd to the police line with Mr. Drury apparently following him as if the two were together. The dark-skinned man walked back and forth in front of the line, chest heaving and eyes wide, pumping his arms up and down and apparently working himself up. He stopped in front of Cst. Steinkampf. Cst. Steinkampf testified that he thought this person was going to strike him, so he pushed him in the shoulders. The man swayed back and forth whereupon Cst. Steinkampf pulled his left arm intending, he said, to arrest him for breach of the peace and assault. He said that as Cst. Clark helped him, Mr. Drury and at least one other person pulled in the opposite direction. Cst. Cope then pepper-sprayed both the dark-skinned man and Mr. Drury, both of whom slipped away.

[34] Cst. Cope described the encounter differently. He said that the dark-skinned man came to within a foot of Cst. Steinkampf, screaming at him, before Cst. Steinkampf pushed him back, setting off a back-and-forth confrontation that lasted 45 seconds to a minute or more. The veins in the man's forehead were bulging and, in Cst. Cope's words, "he was completely out of control." Cst. Cope did not say that Mr. Drury tried to pull the dark-skinned person back into the crowd. Cst. Clark, on the other hand, testified that the man was quickly pulled back into the crowd as Cst. Steinkampf stepped forward to control him.

[35] Mr. Drury's evidence was that the dark-skinned man paced back and forth along the police line, yelling at the police. He said that one of the officers stepped forward, this I infer to have been Cst. Steinkampf, and that the man stopped to face him and continued yelling, whereupon Cst. Steinkampf struck him and he fell backwards to be caught by Mr. Drury. When Cst. Steinkampf tried to pull the man back, the man and Mr. Drury were pepper-sprayed by Cst. Cope. On Mr. Drury's account of the incident he did not obstruct Cst. Steinkampf, but took hold of the dark-skinned man briefly, to keep him from falling backwards and perhaps injuring himself after he had been pushed or struck by Cst. Steinkampf.

[36] There had been an earlier incident involving Mr. Drury in which he had tried to pull a man back into the crowd whom the police were attempting to arrest. He gave two explanations for this: he said that he wanted to keep the man from falling to the pavement, as he was suspended between the police pulling one way and some of the crowd pulling the other; he also said that it would have been dangerous for the man to fall into the hands of the police. His bias was to assume the worst of the police. The inference I draw is that he was motivated by that bias in the incident involving Cst. Steinkampf, and was trying to keep the dark-skinned man from being taken into Cst. Steinkampf's custody.

[37] Cst. Steinkampf said that he meant to arrest the dark-skinned person for breach of the peace and assault, but in my view there is no clear evidence of an assault on him, either by the actual application of force or an attempt or threat to apply it. I do consider, however, that Cst. Steinkampf was entitled to arrest for breach of the peace under s. 31(1) of the Criminal Code:

31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

[38] A breach of the peace was taking place at the Britannia Community Centre, and it was reasonable to infer from the conduct of the dark-skinned man that he was about to join in or renew it. In my view, on this aspect of the matter, there is nothing to substantially distinguish this case from Regina v. Khatchadorian (1998), 127 C.C.C. (3d) 565 (B.C.C.A). In Khatchadorian the accused appealed his conviction for possession of cocaine on the ground that the search that found the drug in his possession had been contrary to the Canadian Charter of Rights and Freedoms. The police were trying to shut down a house party at which a crowd of more than 300 people had gathered. The accused had been searched incidentally to his arrest for breach of the peace when he persisted in trying to dissuade people from leaving the party. Writing for the Court, Hall, J.A. said (at p. 568):

The concept of the preservation of the peace of society is an ancient one and it has long been reckoned to be a general duty of police officers to act to preserve the public peace. The widespread and long existing terminology describing police officers and others engaged in law enforcement activity as "peace officers" is no doubt reflective of this.

...

As I see it, the police officer here in company with his fellow officers was engaged in an effort to contain and ultimately terminate this noisy party and accordingly the police officers were engaged in the lawful execution of their duties.

[39] In this case, Cst. Steinkampf and as many as fifty other officers were endeavouring to contain and terminate a gathering that had gone beyond lawful protest and extended to interfering with the police in the performance of their duties. I find Mr. Drury guilty on this count.

v. Murray Douglas Bush, Ivan Donald Drury, Scott Michael Rohan and Justin Raymond Goodman

Count 5: Membership in an Unlawful Assembly

[40] Section 66 of the Criminal Code of Canada declares that it is an offence to be a member of an "unlawful assembly", a term defined in s. 63, s-s. (1) and (2) of which say this:

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke persons to disturb the peace tumultuously.

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

[41] In Regina v. Berntt (1997), 120 C.C.C. (3d) 344 (B.C.C.A.), the accused appealed his conviction on a charge of taking part in a riot. He argued that the word "tumultuously", a constituent of the Code definitions of both "riot" and "unlawful assembly", was so vague and broad as to offend s. 7 of the Canadian Charter of Rights and Freedoms. The Court rejected this argument, and in discussing the meaning of the word, quoted with approval from the judgment of the Nova Scotia Court of Appeal in Regina v. Lockhart (1976), 15 N.S.R. (2d) 512, in which MacDonald, J.A., writing for the Court, said this (at p. 529):

[I]n my opinion when the word "tumultuously" is used in the Criminal Code definition of riot it must connote in a general sense some elements of violence or force which may be exhibited by menaces or threats. The trial judge said it meant "disorder, confusion or uproar"; I think with respect it means more than that. There has to be, in my opinion, an air or atmosphere of force or violence, either actual or constructive in the sense set out above....

Certainly, historically, the crime of riot required some violence or terrorizing of the public and it is for such reasons that I am of the opinion as set out above that Parliament in defining riot as an unlawful assembly that has begun to disturb the peace tumultuously intended the word tumultuously to mean something more than boisterous, noisy or disorderly conduct.

[42] In Regina v. Lecompte (2000), 149 C.C.C. (3d) 185 (Application for leave to appeal to the Supreme Court of Canada dismissed 1 March 2001: [2000] S.C.C.A. No. 498), the Quebec Court of Appeal dismissed the argument that the terms of s. 63(1)(a) are unconstitutionally vague. In delivering the judgment of the Court, Beauregard, J.A. wrote (translation, at p. 189):

With deference for the contrary opinion, I do not see how these provisions are so vague so as to infringe s. 7 of the Charter. A normal person can see whether, at some point, there are reasonable grounds to fear, in the neighbourhood of the assembly, that the conduct of the people assembled will disturb the peace tumultuously.

[43] What differentiates a riot from an unlawful assembly is that a riot entails an actual, tumultuous disturbance of the peace, whereas an unlawful assembly requires only the reasonable fear that such a disturbance will erupt. At the same time, freedom of assembly is a fundamental freedom, a value whose constitutional protection is not lost only because those taking part in an assembly have become loud and angry.

[44] Many of those at the Britannia Community Centre on 3 October 2002 were either onlookers, or persons who had come to peacefully protest government policies and who were upstaged by supervening events. While it might be suspected that their simple presence was encouraging to others with different objectives, they were not an unlawful assembly, whose members must not only have a common purpose, but must also conduct themselves in a prohibited way with the intent to carry it out.

[45] Nearly twenty police officers testified in this trial. Some officers were better historians of the afternoon's events than others, and their various accounts had the sorts of differences that characterize independent recollections. It was faintly suggested in argument that a muster of police officers that took place within minutes of their leaving the Community Centre had been held in order that they might get their stories straight, but there is no evidence whatever that the meeting had any such purpose. It is significant that many of them said that they had been worried about their own safety and in some cases the safety of others. One of the onlookers was Mr. Dale Crump, a private investigator. He was at the Community Centre for reasons unconnected with the opening of the Family Literacy Centre or any of the witnesses or the accused. He shot videotape of what was going on around the wagon. He was a robust-looking man, composed on the witness stand, with no apparent bias for or against either the police or the accused. He said that he had, at times, been concerned for his own safety. I am satisfied that these expressions of concern by Mr. Crump and the police officers were neither feigned nor the responses of timid people, but that they were reasonable in the circumstances.

[46] Three civilian witnesses testified for the defence. One of them was Ms T. She had heard that there was to be a protest at the community centre and went there on a break from her job across the street. She expressed the opinion that the police were looking for a fight to happen, and acted in what she called "a very chaotic way", but this is not only inconsistent with the evidence of police officers, it is inconsistent with the videotape evidence which in my view shows that the police, while by no means passive, acted with appropriate restraint. She said that she did not notice "swearing at the police", but swearing at the police was prominent in the videotape. She said that she knows Mr. Drury, and he did not stand out from the crowd, but even on his own evidence, Mr. Drury was an active and conspicuous figure.

[47] Ms V. was another civilian observer. She had gone to the Community Centre as one of a number of concerned parents intending to protest aspects of provincial government educational policy. She commented that the police removed protesters aggressively and I am satisfied that in some cases the police were aggressive, in that they were forceful and assertive, but only after a prolonged effort to persuade those blocking the wagon to move on of their own accord.

[48] Ms B. was a third civilian witness who was critical of police conduct. She said that N. had not been yelling or shouting before his arrest, but the overwhelming burden of the evidence is to the contrary. There is no objective support for her opinion that "the police went berserk." It is clear that before Insp. Huston directed the police to remove those in front of the wagon he had asked them to disperse and they had had ample opportunity to do so. When the police acted they did so quickly and decisively and used various levels of force, but the use of force by police is not an inherent abuse of their power, and in my view there is no evidence that police power was abused in clearing the way for the wagon.

[49] Onlookers to an arrest enjoy constitutional protection in expressing their disapproval of it, but the protection does not extend to conduct that threatens a tumultuous disturbance of the peace. I conclude that an unlawful assembly took place at Britannia Community Centre on 3 October 2002, although not everyone present took part in it. In the terms of s. 63(1): there were persons assembled there who had a common purpose in the carrying out of which they so conducted themselves as to cause persons nearby to fear, on reasonable grounds, that they would disturb the peace tumultuously. The common purpose, while it would have been differently described by most of those pursuing it, amounted to this: to interfere with the police in the performance of their duties. The evidence suggests, indeed, that some of those present may have been actuated by a kind of free-floating contempt for the police which the events at Britannia Community Centre crystallized. In any case, many of the assembly did not confine themselves to simple, noisy protest. Some threw objects at police officers, including a can apparently containing a soft-drink, a bottle of water, a water-filled balloon, and pebbles or stones. Some spat at police officers. Some pushed, jostled and kicked at them. In some cases members of the crowd jumped onto the backs of police officers. Cst. Harty was tackled and injured while making a lawful arrest. Some persons in the crowd screamed, either at large or to the faces of police officers, imprecations such as "Die, pigs", "Kill the pigs" and "Fuck the pigs" which, in the context of all that was going on around them, contributed to the reasonable fear that this was an occasion when opposition to the police in the performance of their lawful duties, which had already expressed itself in some acts of violence, might attract more.

[50] Mr. Bush's assault of Cst. Harty is both evidence that he intended a purpose in common with others who also acted so as to obstruct the police, and conduct which in itself contributed to the reasonable fear that he and those others would disturb the peace tumultuously. The same is true of Mr. Drury's interference with the arrest of the dark-skinned man and Mr. Goodman's moving a dumpster into the path of the police wagon. Each of these acts was a discrete criminal offence, as I have already held, but was also, to the knowledge of its perpetrator, part of a larger pattern of behaviour, involving a number of people, whose cumulative effect was to contravene s. 66. I find Messrs. Bush, Drury and Goodman guilty on this count.

[51] As to Mr. Rohan, it was submitted in argument that he was a central figure in the crowd of those working violently or with threatened violence against the police, but I cannot reach such a conclusion. I have dismissed the count against him of assaulting Sgt. Hobbs, and I do not find the remaining evidence against him enough to support a conviction on this count. Accordingly, I find him not guilty of it.

vi Murray Douglas Bush, Scott Michael Rohan and Justin Raymond Goodman

Count 6: Cause Disturbance

[52] This count charges that the defendants caused a disturbance "by shouting, swearing and using obscene language." There were intermittent eruptions of all three from the time of Mr. Feenstra's arrest until the police withdrew. The Britannia Community Centre was clearly the scene of an "overtly manifested disturbance which constitute[d] an interference with the ordinary and customary use by the public of the place in question," the sense in which the word "disturbance" is meant in s. 175 of the Criminal Code (see Lohnes v. The Queen (1992), 69 C.C.C. (3d) 289 (S.C.C.), at p. 296). Indeed, the disturbance went so far as to amount to an unlawful assembly.

[53] Certainly, there is evidence that each of the defendants named in this count shouted, swore or used obscene language. I am not satisfied, however, that the evidence shows that shouting, swearing or the use of obscene language by the defendants was other than incidental to a disturbance that had other causes and in which other events were much more prominent. In my view, to find the defendants guilty of causing a disturbance by shouting, swearing or using obscene language I must be satisfied that their doing so contributed materially to the disturbance, lent impetus to it or gave it momentum. I am not prepared to make such a finding on the evidence in this case. Accordingly, I find the defendants not guilty.

[54] In view of the conclusions I have reached about the charges against Mr. Rohan, there is no need to consider his application for Charter relief. I will turn, then, to Mr. Bush's application, in which he has asked that I direct a stay of the proceedings against him as the only fit remedy for a series of post-arrest breaches of his Charter rights. He alleges:

1. A post-arrest assault by the police;

2. Post-arrest threats made in his presence and directed to Mr. Rohan;

3. A strip-search of him at the Vancouver Jail;

4. His detention contrary to Criminal Code s. 503(1);

5. Denial of his right under Charter s. 10(b) to retain and instruct counsel without delay.

1. A post-arrest assault of Mr. Bush by the police

[55] After he had assaulted Cst. Harty and fallen to the ground, Mr. Bush said he felt at least half a dozen kicks to the head from different directions before his hands were placed together and he was handcuffed. When he got to his feet he saw that he was surrounded by police officers. Mr. Bush later saw a physician with a complaint of persistent headaches. There were apparently no outward signs of injury and a CT scan was done whose results disclosed nothing remarkable. There is no evidence except Mr. Bush's concerning this incident and his account implicates the police only by inference from the fact that those responsible appeared to him to be wearing black, police-issue boots. This is a charge of very serious police misconduct, and it seems to me that the room for error both in what Mr. Bush saw and experienced and in drawing the right inference from it is too great to enable me to conclude that it is established as more probable than not.

2. Post-arrest threats made in Mr. Bush's presence and directed to Mr. Rohan

[56] The evidence is that on the way to the Vancouver Jail the police wagon stopped at the Canadian Tire parking lot on Kingsway, a place near both the jail and the Britannia Community Centre. The police officers who had been at the Britannia Community Centre also mustered there, and while it was often suggested during the trial that there was something sinister about this gathering, I am satisfied that there was not. The compartments to the wagon were opened and a number of prisoners, including Mr. Bush, were brought out and identified on videotape which was played during the trial.

[57] Mr. Bush testified that he and Mr. Rohan shared a compartment in the wagon, and that while they were at the Canadian Tire lot, the door to the compartment opened, and Sgt. Hobbs, apparently very agitated, and with a large group of police officers behind him, pointed at Mr. Rohan and said words to him to the effect: "You're the asshole that threw that thing at me. Come out of the wagon, tough guy, we'll straighten this out right now." When Mr. Rohan declined to get out, someone, possibly a different officer said, in effect, "That's okay, we know where you live; we can take you out." Although these comments were not directed at him, Mr. Bush said it was a frightening experience to hear them and caused him concern for his own safety as a witness to them.

[58] Mr. Rohan also testified to this incident to much the same effect as Mr. Bush. No substantial reason why both he and Mr. Bush would get together to concoct a story about inappropriate police conduct tangential to the charges against them appears to me. Nor does it seem to me likely that if their evidence about this encounter were fabricated, they would profess uncertainty whether the maker of the second comment was Sgt. Hobbs or some other officer.

[59] About two months after the incident Mr. Bush filed a complaint against Sgt. Hobbs under the Police Act which was resolved against Mr. Bush a few months later, long before the start of the trial. Mr. Bush's explanation for making such a complaint about only this incident when so much else had happened was that he knew that the events at the Community Centre would come out at the trial. Sgt. Hobbs denied the incident, and no police officer who was asked about it in the trial recalled it.

[60] While I am not convinced of the truth of this incident to the criminal standard, I do conclude that the evidence shows it to be more probable than not that it happened much as described by Mr. Bush and Mr. Rohan.

3. The strip-search of Mr. Bush at the Vancouver Jail

[61] Not long after his arrival at Vancouver Jail, Mr. Bush was strip-searched. He is a man with no criminal record and the search was not in response to anything about him or the circumstances of his arrest that made it necessary. It was apparently done simply in accordance with jail policy requiring that such searches be conducted on all prisoners except those charged with by-law offences and persons arrested for public intoxication and brought to the jail to sober up. During the search he was asked to remove all his clothes and face the wall. He was then told to spread his buttocks and also to hold his testicles. He was not touched during the search and was then told to put his clothes back on. He said that he felt humiliated during the search and anxious.

4. Mr. Bush's detention contrary to Criminal Code s. 503(1)

[62] Jail records indicate that Mr. Bush was arrested at 4:34 p.m. on 3 October 2002 and not released until 6:37 p.m. the next day by the officer in charge. A justice had been available throughout this time. Thus, he spent twenty-six hours in custody without having been taken before a justice. Indeed, it was not until near 6:00 p.m. of the day of his release that the officer in charge of the Vancouver Jail considered Mr. Bush's release.

5. Denial of Mr. Bush's right under Charter s. 10(b) to retain and instruct counsel without delay

[63] Mr. Bush testified, and I find, that during the twenty-six hours between the time of his arrest at the Britannia Community Centre and his release from the Vancouver Jail he made some eight requests to be allowed to telephone his lawyer. He was never afforded the opportunity to do so.

[64] Regina v. McRae 2004 BCCA 229 is a recent decision involving what has come to be termed the "residual category" of abuse of process. These are cases that do not involve the accused's right to a fair trial. The accused in McRae persuaded the trial judge that certain post-arrest treatment he had received at the hands of the police justified a stay of the proceedings against him. The Crown successfully appealed to the Court of Appeal. Saunders, J.A. delivered the Court's reasons in which she quoted at length from the Supreme Court of Canada's judgment in Regina v. Regan, written by LeBel, J., in particular (at para. 13 of McRae), these passages from paras. 54 and 55, in which LeBel, J. cites passages from the Courts judgment in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (the emphasis is that of Saunders, J.A.):

[A stay of proceedings] does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

...

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91).

[65] This, too, is a case in the residual category. The fairness of Mr. Bush's trial will not be affected, regardless of whether I grant any remedy for these breaches.

[66] In my view, neither the threats made to Mr. Rohan in Mr. Bush's presence nor the denial of Mr. Bush's right to retain and instruct counsel without delay warrant a stay of proceedings. As far as the evidence reveals, these were isolated events. It cannot be said that they are abuses that are likely to continue or be carried forward. I do not think that even when these breaches of his Charter rights are considered together with the strip-search and his prolonged detention, the case becomes such an exceptional one that "the mere fact of going forward in the light of it will be offensive." But the conclusion is otherwise, in my view, when the question is the appropriateness of a stay of proceedings to prevent the perpetuation of a wrong.

[67] In Regina v. Golden [2001] 3 S.C.R. 679, a case, it should be noted, that preceded Mr. Bush's arrest by almost a year, the Court examined whether the common-law power to search incidental to arrest includes the authority to strip-search. The Court held that it does, although the exercise of the authority is modified by the circumstances. In particular, the Court recognized that searches in lock-ups and penal institutions involve special considerations. Iacobucci and Arbour, JJ. wrote the reasons for judgment of the majority, in which they said this (at para. 96):

It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case. The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells.... [My emphasis]

[68] In Regina v. Douglas 2003 BCPC 392 the defendant applied for a stay of proceedings under s. 24(1) of the Charter based, in part, on her having been strip-searched at the Vancouver Jail. In holding against the defendant's application, my colleague Bruce, P.C.J. examined the policy governing strip-searches at the Vancouver Jail in light of the Supreme Court of Canada's decision in Golden. She determined that the exigencies of that institution warrant a policy of strip-searching prisoners who are to be placed in the general prison population, a category that she determined would include persons whom an officer in charge has declined to release and who are waiting to be brought before a justice. This category included the defendant in Douglas. But Bruce, P.C.J. excluded from this category prisoners like Mr. Bush whose release has not been considered by the officer in charge. She wrote (at para. 81):

Until it is determined that these persons will be detained in custody, and therefore must be lodged in cells, a proper balancing of their right to privacy with the institution's interests in securing a proper level of safety in the jail, precludes a blanket policy of strip searching.

[69] In an earlier decision, Regina v. Lau 2003 BCPC 294, Bruce, P.C.J. allowed the accused's application for a stay of the proceedings against her based on her having been confined in the Vancouver Jail for some twenty-six hours before her eventual release pursuant to the order of a justice. Bruce, P.C.J. held that this was an arbitrary detention. There was no satisfactory explanation for this long delay, which appears to have been due in large part to a misreading of s. 503(1)(a) of the Criminal Code:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period.... [My emphasis]

[70] Bruce, P.C.J. determined that in the implementation of s. 503(1)(a) at the Vancouver Jail, little regard is had to the injunction to bring the prisoner before a justice "without unreasonable delay" and that, instead, the obligation enacted in the section is diluted, in practice, to that of bringing the person before a justice within twenty-four hours.

[71] Counsel for Mr. Bush has argued that I should follow these decisions of Bruce, P.C.J. and that a stay of the proceedings against his client must be the result.

[72] I find that there is no other conclusion possible on the evidence before me than that the strip-search of Mr. Bush was done as a matter of routine. When he was strip-searched, he was not a person whom the officer in charge had decided not to release and whose strip-search would have been preparation for his removal to the general population. The evidence is that he was awaiting the officer-in-charge's decision as to whether or not to release him, and so was one of the category of persons in the Vancouver Jail who, on the analysis of my colleague Bruce, P.C.J., should not be strip-searched at all, with the result that the strip-search of Mr. Bush was an unreasonable search contrary to s. 8 of the Charter.

[73] It is also the case, in my view, that there is no satisfactory explanation of the long delay before Mr. Bush was finally released. The officers in charge during his detention could give none, other than to implicate the pace at which paperwork flows to and from the Crown Counsel office. It is of some interest that the officer in charge who eventually released Mr. Bush in accordance with instructions from Crown Counsel was Sgt. Bruno Gatto. Sgt. Gatto had also been an officer in charge during the detention of the defendant in Lau. He gave evidence at that trial in which he told Bruce, P.C.J. that twenty-six-hour detentions are a regular occurrence at the Vancouver Jail. Sgt. Gatto testified before me, and when he was reminded of the Lau case, again said that detentions exceeding twenty-four hours, while not a "common practice", occur regularly. I conclude that, Regina v. Lau notwithstanding, nothing more is done now to ensure that detained persons are taken before a justice without unreasonable delay than was done then. The unduly prolonged detention of Mr. Bush was an arbitrary detention, contrary to s. 9 of the Charter.

[74] It would not be a proper use of the power to stay proceedings under s. 24(1) of the Charter simply to discipline the police or correction authorities. Moreover, I am aware that Lau and Douglas (but not Golden) were decided after Mr. Bush's detention. But the tenor of the evidence is that nothing has changed at the Vancouver Jail since those cases were decided, either.

[75] In Regan, LeBel, J. wrote, at para. 56:

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.

[76] The evidence suggests an unfortunate failure at the Vancouver Jail, or simply reluctance, to bring the practice of strip-searching into conformity with Golden and Douglas, and the practice concerning the release of prisoners into conformity with s. 503(1) of the Criminal Code and Lau. This is not satisfactorily explained. I conclude that there is no suitable remedy other than a stay of the proceedings against Mr. Bush.

For the foregoing reasons:

I find the defendant Drury guilty on each of Counts 3 and 5.

I find the defendant Rohan not guilty on each of Counts 5, 6 and 9.

I find the defendant Goodman not guilty on Counts 6 and 8, but guilty on Counts 5 and 13.

[77] I find the defendant Bush not guilty on Count 6 and direct a stay of proceedings against him on Counts 5 and 14.

______________________________

The Honourable D. I. Smyth, P.C.J.