legally speaking - Justice Institute of British Columbia

DISTURBANCE REQUIRES MORE
THAN CROWD OBSERVING
POLICE MAKE ARREST
R. v. Swinkels, 2010 ONCA 742
In the early morning hours two
police officers were patrolling
downtown just as the bars were
closing. While they were driving
they heard someone yell obscenities
from within a large crowd of about 15 to 20 people
outside a bar. The officers pulled over to investigate
and, as they exited their vehicle, the accused came
quickly towards one of the officers yelling further
obscenities. Both of the accused’s arms were straight
out and his middle fingers were up. Believing he
was about to be assaulted or grabbed, the officer
took the accused by his shirt, pulled him to the
ground, and arrested him for causing a disturbance.
At trial in the Ontario Superior Court of Justice on a
charge of causing a disturbance the accused was
convicted. The trial judge concluded there was a
disturbance caused by the accused. He caused a
crowd to gather and several members of the public
were disturbed. A further appeal to the Ontario
Superior Court of Justice was dismissed. The accused
then appealed to the Ontario Court of Appeal.
Causing a Disturbance
The actus reus for causing a public disturbance by
using obscene language has two components.
1. the accused must have engaged in one of
the enumerated acts, which includes
“screaming, shouting, swearing, or using
insulting or obscene language.”
2. the accused’s actions must have 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.” Said
another way, an accused’s actions
must involve “violent noise or
confusion disrupting the tranquillity
of those using the area in question.”
Volume 11 Issue 1 - January/February 2011
PAGE 28
BY THE BOOK:
Causing a Disturbance
s. 175(1)(a)(i) Criminal Code
Every one who (a) not being in a
dwelling-house, c a u s e s a
disturbance in or near a public
place, (i) by fighting, screaming,
shouting, swearing, singing or
using insulting or obscene
language … is guilty of an
offence punishable on summary conviction.
Here, the accused was engaged in one of the
enumerated acts. But his conduct did not result in an
“externally manifested disturbance.” “Generally
speaking ... shouting obscenities at police officers is
not a disturbance in and of itself,” said Justice
LaForme speaking for a two judge majority. The
objective of s. 175(1)(a) is not to protect individuals
from emotional upset, but to protect the public from
disorder calculated to interfere with the public's
normal activities. In this case, a large crowd
gathered around a bar at closing time. The officer
testified that the scene was “a normal bar type
crowd” and the patio was always packed with very
intoxicated people. It was a warm summer’s night,
the streets were packed, and there was ongoing
yelling in the area. The downtown core was
extremely busy when the bars close.
In this case, the packed and noisy streets just after
bar closing formed the context and surroundings
under which the disruptiveness of the accused’s
conduct was to be measured. What could be
expected at this time and place would be different
than what one would expect in the library or super
market. The presence of
“Generally speaking ... the crowd around or near
the accused was not a
shouting obscenities at
disturbance. The crowd
police officers is not a was already there. The
disturbance in and of itself.”
police testified the crowd
they saw was a normal