IN THE PROVINCIAL COURT OF SASKATCHEWAN

Citation: 2012 SKPC 175

Date:Information:Location:

Between:

November 28, 201246423256Saskatoon

Appearing:

Her Majesty the Queen

- and -

Jeffrey Adam Tysdal, Clifford Ronald Hamilton, Keith Anthony Walliser

Tom Macnab

Morris Bodnar, Q.C.Greg MitchellLeslie Sullivan

For the Crown

For the Accused, Jeffrey Adam TysdalFor the Accused, Clifford Ronald Hamilton

For the Accused, Keith Anthony Walliser

JUDGMENT B.M. SINGER, J

NOTE: This document is subject to editorial revisions before its reproduction in finalform.INTRODUCTION

[1] Jeffrey Adam Tysdal, Clifford Ronald Hamilton and Keith Anthony Walliser are before the

Court because of an incident that occurred on August 12, 2012 on the Broadway Bridge in the City

of Saskatoon. They are all charged with unlawfully assaulting Constable Lisson, a peace officer

engaged in the lawful execution of his duty contrary to s. 270(1)(a) of the Criminal Code. They are

also all charged with wilfully obstructing Constable Lisson, a peace officer engaged in the lawful

execution of his duty by placing themselves physically between the officer and the person he was

attempting to arrest in an attempt to impede the arrest contrary to s. 129(a) of the Criminal Code.

[2] Jeffrey Adam Tysdal is also charged with unlawfully assaulting Constable Talloden, a peace

officer engaged in the lawful execution of her duty contrary to s. 270(1)(a) of the Criminal Code.

EVIDENCE OF THE CROWN

[3] Constable Lisson testified that at the relevant time he was a peace officer with the Saskatoon

Police Service with slightly over two years of experience. On August 12, 2012 at approximately

1:55 a.m. he was on patrol with Constable Talloden coming from an unsuccessful attempt to locate

a subject in the area of Broadway and 8th Street. He was still on the lookout for this subject when

on the south walkway ofthe Broadway Bridge he saw four individuals walking towards downtown.

[4] One of the individuals was wearing a gi, a white karate training uniform. He saw this

individual tackle one of the other three. The fellow in the gi ran toward the other individual and

spear tackled or aggressively tackled that person. It was like a football tackle, according to him. He

says he was about 50 metres away when he saw this happen.

[5] Constable Lisson testified that at the time he saw this tackle he was unsure what was going

on, but it was certainly something that he felt he had to investigate. He put on his emergency lights

and siren and pulled up beside the concrete barrier within feet ofthe incident. His view was partially

blocked by the barrier but he recalls seeing punching motions by the fellow in the gi to the male who

was hidden but lying in the sidewalk area. He believed the fellow in the gi was assaulting the person

on the sidewalk, but admitted that he didn’t know if it was an assault or a consensual fight. The

officer quickly left his vehicle and ran up to the barrier yelling “police, stop fighting” indicating that

it was his intention at that time to intervene.

[6] As he looked over the barrier he reports seeing the man in the gi choking the man on the

ground to the point that the man on the bottom was becoming very red in the face. Constable Lisson

-2-

testified he reached over the barrier, pushed the male in the gi on the chest or the shoulder area to

get him off the other man. The man wearing the karate gi was Mr. Walliser. The person on the

ground was Mr. Hamilton. The other two individuals who were present were Mr. Nickel and Mr.

Tysdal. Constable Lisson testified that Mr. Nickel was on the Broadway side of the two on the

ground or on his left as he approached the barrier. According to Constable Lisson Mr. Tysdal was

on the other side or his right on the downtown side of the incident.

[7] Constable Lisson explained that the choking made him believe he was intervening in an

assault in progress. He pushed Mr. Walliser backwards and testified that Mi. Walliser pushed him

back. As a result the officer immediately informed Mr. Walliser he was under arrest for assaulting

a police officer. He called for backup but as he said, not in a distressful way, and leapt over the

barrier, put his hands on Mr. Walliser and told him he was under arrest for assaulting a police officer.

Mr. Walliser was standing up. He says that Mr. Walliser hit his hands off and that Mr. Tysdal then

came between him and Mr. Walliser.

[8] According to the police officer Mr. Tysdal was saying “this is not a big deal, we are on the

same team, we are firefighters”. He then says Mr. Hamilton rose up from the ground and also put

himself between himself and Mr. Walliser. Mr. Hamilton, the victim of the tackle, was also trying

to tell the police officer “we know each other, this doesn’t have to happen” and according to

Constable Lisson, “they were attempting to stop me from accessing Mr. Walliser”. He thought at

this time that Mr. Tysdal and Mr. Hamilton were trying the de-escalate the situation. He testified

that Mr. Tysdal kept telling him words like “we all know each other, we’re all on the same team”.

The officer, insisted on getting at Mr. Walliser, pushing his way through to get to him and according

to his evidence, insisted he was going to make a “lawful arrest”.

[9] As he was pushing his way past Mr. Hamilton, he says Mr. Hamilton pushed back, so he

turned to him and told him that he too was under arrest. Constable Lisson put his hands on his shirt

and pulled at Mr. Hamilton. At this time Constable Lisson says Mr. Tysdal put him in a bear hug

-3-

from behind restricting his movements and Mr. Hamilton hit him with a closed fist, a glancing blow,

and tried to hit him two or three times more. The officer said he freed himself from Mr. Tysdal’s

grip and returned the punches to Mr. Hamilton but was wrapped up by Mr. Tysdal again. During this

activity he didn’t know where Mr. Walliser or Constable Talloden were.

[10] According to Constable Lisson he was able to get free ofthe grip he was in but all four ofthe

firefighters were then in front of him as he faced the Broadway end of the bridge. He asked his

partner to call for backup again.

[11] Even though Mr. Tysdal and Mr. Hamilton were now at least an arm’s length away,

Constable Talloden from behind Constable Lisson, sprayed her OC spray towards them. All of a

sudden there were other police officers present. Mr. Hamilton was grabbed from behind and pulled

over the barrier and placed under arrest by one ofthose officers. Mr. Walliser was grabbed and also

pulled over the barrier. Constable Lisson told Mr. Tysdal to put his hands behind his back but he

refused and another officer pulled Mr. Tysdal’s arms back and arrested him.

[12] The allegation based on this evidence is that Mr. Walliser assaulted the police officer

Constable Lisson when he pushed back at him after Constable Lisson pushed Mr. Walliser. The

allegation against Mr. Tysdal is that he interfered with Constable Lisson’ s arrest ofMr. Walliser and

assaulted Constable Lisson by holding him in a bear hug. The allegation against Mr. Hamilton is

that he punched Constable Lisson and also interfered in the arrest of Mr. Walliser.

[13] Constable Lisson was cross-examined and he agreed that prior to and during the incident that

both police officers were informed that the fellows on the ground were friends and that they were

having a bit of fun, playing around.

[14] Questioning revealed that the decision ofConstable Lisson to intervene in what he was being

told was a bit of fun between friends was informed to a great extent by his observation that Mr.

-4-

Walliser was on top of Mr. Hamilton, choking him, so that his face was turned red. However, this

observation was not recorded in his notes, made at the time, or in his complete history ofthe offence

in the police report. Indeed the first time, he says, he revealed the choking was on the stand in direct

examination. He had no real explanation for this omission.

[15] The Court learned from cross-examination that in his written police report, his description

of what he observed was that he described Mr. Walliser and Mr. Hamilton as rolling around on the

ground.

[16] Given these concerns about his evidence it is important to review the evidence of Constable

Constable Talloden in detail.

[17] Constable Talloden in her direct examination said that she observed four individuals walking

down the Broadway bridge. She saw Mr. Walliser in his karate gi and Mr. Hamilton in his red t

shirt. In her evidence she testified that she saw Mr. Walliser run after Mr. Hamilton and take him

to the ground. She said “he blind-sided him - ran toward him from behind and tackled him to the

ground”. She further described this as “arms around him and throwing him to the ground”. Her

recollection is that Mr. Nickel and Mr. Tysdal were slightly ahead of Mr. Hamilton when this

happened. The Court learned in cross-examination, however, that Constable Talloden did not

describe anyone being blind-sided from behind or tackled in her notes. As well, at first, she testified

she used the word tackled throughout her police report, but upon reading it again, had to admit that

the word “tackle” did not appear anywhere in her police report. All her report said was that the two

were fighting. All that her notes say was that she initially saw two people fighting, standing. Unlike

Constable Lissen, she testified that the police car was beside these individuals when she saw the

“tackle”, just a car length away.

[18] Indirect examination she said “as we exited the patrol cars I heard the two males (Mr. Nickel

and Mr. Tysdal) say to us ‘come on guys they’re just play fighting”. When she and Constable

-5-

Lisson got to the barrier she says she observed Mr. Walliser on top of Mr. Hamilton. She saw Mr.

Walliser strike Mr. Hamilton with punches numerous times while they rolled around on the ground

on the pedestrian crossway. She went on to say that it did not look like they were play fighting as

they were both striking each other. During this time Mr. Tysdal and Mr. Nickel both continued to

shout that the two on the ground were just play fighting.

[19] She indicated that Constable Lisson and herself both were also shouting “City police, stop

fighting”. She did not testify either on direct exam or on cross-examination that she observed anyone

choking anyone.

[20] She testified that her partner intervened by immediately pushing Mr. Walliser off the top of

Mr. Hamilton. She added that Mr. Walliser shoved her partner back and that Constable Lisson

immediately jumped over the barrier. Her recollection is that Constable Lisson said “you’re under

arrest for assault” and then the next thing she saw was Mr. Tysdal grabbed Constable Lisson from

behind. She did not testify that either Mr. Tysdal or Mr. Hamilton got between Constable Lisson and

Mr. Walliser and tried to explain that they were just friends or that they tried to de-escalate the

situation. She testified that Mr. Tysdal put his hands on Constable Lisson and obstructed him so he

couldn’t get control of Mr. Walliser. At that point in time she says she jumped from the barrier and

put Mr. Tysdal in a headlock in an attempt to pry him off her partner.

[21] Upon cross-examination the Court learned that her notes made at the time do not indicate that

Mr. Tysdal obstructed Constable Lisson from behind. She indicated that “Keith” (Walliser) was the

individual who did that. She then testified that was a mistake she had detected and changed when

she reviewed her report.

[22] She was then asked to read her report and even though she testified, seconds earlier, that she

had previously changed the name in her report, her review of her report does not indicate that there

was any change made. This is in spite of testifying that she had earlier made other changes to her

-6-

notes because she had the names mixed up.

[23] Constable Talloden testified that she believed that Constable Lisson was then shoved and

heard him say “the male in the red t-shirt” who we know is Mr. Hamilton “was under arrest too for

assault”, so she went around the group and tried to get hold of Mr. Hamilton herself She says that

throughout Mr. Tysdal was being obstructive and that Mr. Walliser came between Constable Lisson

and his attempt to arrest Mr. Hamilton. Her evidence is that when she grabbed Mr. Tysdal in a

headlock his response was to turn around and shove her back with his hands, hard enough so that

she went backwards. She then says Mr. Tysdal went back to holding Constable Lisson’s hands from

behind and she observed Constable Lisson being shoved back by Mr. Hamilton even though Mr.

Tysdal was directly behind him. She also testified that she was on Constable Lisson’s left side, Mr.

Tysdal was behind him holding him in a bear hug and she saw Mr. Walliser on Constable Lisson’s

right side. She says that in spite of being of Constable Lisson’s left side she saw Mr. Walliser try

to restrain Constable Lisson’s hand on his right side. It should be noted that later in cross-

examination she denied that she could see anything on her partner’s right side as he was blocking

her view.

[24] At the same time that she says that she saw Mr. Walliser try to restrain Constable Lisson’s

hand on Constable Lisson’s right side, she was engaged with Mr. Tysdal who was directly behind

Constable Lisson. She said she left this position to go over to Constable Lisson’ s right side and tried

to hit at Mr. Walliser by giving elbow strikes to his rib and kidney region and knee strikes to his

thigh. She did not record any of these blows in her notes. It was also pointed out to her andshe

agreed that there was nothing in her police Occurrence Report about them as well. She thought that

she had put it in her Use of Force Report, a document that she has to file whenever force is used.

When it was pointed out to her that the knee strikes were indeed recorded in her Police Report she

changed her evidence again. She then testified that during all of this activity she called for further

backup however this call may not have been successful as her radio was on the wrong channel.

-7-

[25] Constable Talloden testified that she went to the left side of her partner and saw Mr.

Hamilton face to face with him. Mr. Tysdal was still right behind him. Her evidence was that she

then deployed her OC spray towards Mr. Hamilton and Mr. Tysdal. This is hard to picture from her

evidence because Mr. Hamilton was in front of Constable Lisson and Mi. Tysdal was behind him

as was Constable Talloden. Perhaps she again had the names mixed up because her diagram [P-i]

shows her behind Constable Lisson, with Mr. Tysdal on one side (not behind) Mr. Hamilton and Mr.

Walliser in front. Shortly thereafter backup arrived.

[26] Summarizing her evidence at the end of her direct examination she said that when she and

her partner got out of the police vehicle and first approached the individuals all they said was “City

police”. She later revised that to “City police - stop fighting”.

[27] She did however confirm throughout her evidence that right from the beginning she was told

that the individuals were play fighting, fooling around and were friends. She testified however in

cross-examination she did not believe they were fooling around because they continued to fight.

[28] This is contradicted in her notes because as she records there “the males began to be

passively resistant when told to stop fighting”.

[29] The Crown called three other police witnesses. Constable Chris Teichred was one of the

back up officers first on the scene. He heard Constable Lisson’ s initial call for assistance and arrived

at the Broadway bridge within 10 or 20 seconds. He observed Constable Talloden engaged with one

individual and Constable Lisson with one individual at his left hand and another at his right. He said

they were struggling. He arrested the fellow in the red t-shirt. This was Mr. Hamilton.

[30] Constable Chris Martin was another officer who responded to Constable Lisson’ s request for

assistance. When he arrived he saw Constable Lisson standing with Mr. Walliser, the fellow in the

karate gi. He placed Mr. Walliser under arrest. He says the fellow in the red t-shirt was standing

-8-

close by. Constable Dale Kirchgessner also attended the scene. He heard a call for assistance from

Constable Talloden. When he arrived there were a number of patrol cars at the scene already. He

saw Constable Lisson struggling with an individual whom he arrested. This was Mr. Tysdal. In

cross-examination he said he wasn’t sure if it was Mr. Tysdal who Constable Lisson was dealing

with but that Mr. Tysdal was mostly cooperative with him throughout his arrest and detention.

EVIDENCE FOR THE DEFENCE

[31] Mr. Nickel was called as the Defence’s first witness. He was the other firefighter present.

He was not charged with anything arising from this incident; he was sober and observed the entire

event. He stated that he met up with the three accused and other firefighters for a birthday

celebration at Lydia’s Restaurant on Broadway Avenue. It was an 80’s theme party and his friend

Mr. Walliser was dressed as the karate kid. He and Mr. Walliser, Mr. Hamilton and Mr. Tysdal are

all on the same shift at the same fire hall. They are on the same team. He arrived at Lydia’s about

11:30p.m.; the party was in progress. Mr. Nickel and his three friends, the accused, then went down

the street to Bud’s on Broadway and stayed there about halfan hour. They left there about 1:30 a.m.

They were going to walk to a bar in the downtown area. He indicated that, from his observation, Mr.

Hamilton and Mr. Walliser had certainly been drinking and may have been intoxicated; his friend

Mr. Tysdal was more sober.

[32] The four of them were walking on the Broadway bridge having a good time. At one point

Mr. Hamilton and Mr. Tysdal were ahead and Mr. Walliser slightly behind. There was a lot ofgood

natured pushing and shoving. All of them were involved, including himself. He described it as

shoulder checking, pushing and horsing around.

[33] At one point his friend Mr. Walliser ran into them all and there was a great deal of body

contact. Everyone just laughed. As they were about three-quarters of the way down the bridge he

saw his friends, Mr. Hamilton and Mr. Walliser, grappling and wrestling around. They slipped and

-9-

both fell to the sidewalk. They were wrestling back and forth when all of a sudden a police car

pulled up. This was within seconds of them falling to the ground. He testified he heard a siren go

“whoop whoop”, then he saw the police vehicle. At that time Mr. Walliser and Mr. Hamilton were

on the sidewalk. He had no concerns about their activity, however he was concerned that the police

officer may have misinterpreted what was going on so he immediately yelled “we’re all friends, they

are just play fighting” to Constable Lisson.

[34] His evidence is that the next thing he saw was that Constable Lisson had leapt over the

barrier and was on top ofhis friend Mr. Hamilton who was lying on the sidewalk. The police officer

had his knee on Mr. Hamilton’s back or head and was pushing him into the walkway. This happened

very quickly. He describes Mr. Hamilton as being on his stomach, the left side of his face on the

sidewalk and his friend, Mr. Walliser, was beside them on the ground. At that point Constable

Lisson’s knee was shoving Mr. Hamilton’s head into the concrete.

[35] Mr. Hamilton was able to get out from under Constable Lisson and pushed himself up. He

saw the officer go toward his Mr. Walliser. Mr. Hamilton and Constable Lisson grabbed at each

other. They are both standing and grabbing at each other in a wrestling manner. From this point on

he doesn’t recall where his friend Mr. Walliser was, nor had he seen any other police officer present.

[36] Both he and his friend Jeff (Mr. Tysdal) yelled to the police officer “stop we haven’t done

anything”. He saw that his friend Mr. Tysdal was concerned Constable Lisson was overpowering

Mr. Hamilton and that he watched as Mr. Tysdal grabbed officer Constable Lisson from behind. Mr.

Tysdal placed his right arm under Constable Lisson’s right arm and his left arm under Constable

Lisson’ s left arm and was trying to restrain him and pull him back but it had no real effect. Constable

Lissen’ s arms were unrestricted and he was talking on his microphone; asking for back up and asking

someone to use pepper spray. While the officer was grappling with Mr. Hamilton and while Mr.

Tysdal tried to restrain the officer, he saw Constable Talloden come from the lower part of the

bridge. This is the first time he saw he. She used her spray and sprayed Mr. Tysdal in the eye. He

-10-

says he also got hit from the spray. He does not know who else might have been affected. His eyes

started tearing and he was not able to see anything for a short period oftime; when his vision cleared

there were five or six police cars and other policemen on the bridge. According to him, the whole

thing happened very quickly.

[37] Mr. Nickel admitted that he was a good friend of the accused firefighters, not only do they

work together but they have a social relationship as well.

[38] At no time did Mr. Nickel testify that Mr. Walliser was choking Mr. Hamilton, nor did he

testify that Mr. Tysdal got between Constable Lisson and Mr. Hamilton. He did not see Constable

Talloden put Mr. Tysdal in a headlock or Mr. Tysdal push Constable Talloden. Indeed he testified

there was no contact between Mr. Tysdal and Constable Talloden. He did not see Constable

Talloden elbow strike or knee strike any of the individuals. Indeed Mr. Walliser was not involved

in any scuffle, pushing or struggling with any one according to his evidence.

[39] Significantly he never heard any of the officers say “stop, police” or “stop fighting.”

[40] Mr. Nickel was vigorously cross-examined by the Crown and agreed that he may have missed

some of the things that were going on in the incident and that even though he never looked away he

still may have missed some of the details. He had given a statement to the police about what he

observed, however he was not called as a witness by the Crown.

[41] Mr. Keith Walliser testified on his own behalf. He had been drinking at Lydia’s from just

before 8:00 p.m. at a birthday party for a colleague. He believes that he had between nine and ten

beer and a couple of drinks of rum, finishing drinking about 1:00 to 1:30 a.m. He said he could feel

the effects of the alcohol and would not have driven a vehicle. He was wearing the karate gi that

night as it was an 80’s themed party.

—11—

[42] He recalls walking down the bridge having fun with his friends. He was wearing flip flops

that night and stopped to demonstrate a few of his karate moves. Soon the other firefighters were

about 20 or 30 feet ahead of him. He ran to catch up to them. He bumped into two of them, kind

of body checked them with his shoulders in a playful manner. Everyone was laughing. He and his

friend IVIr. Hamilton grappled and wrestled with each other. He says they both tripped and fell

together and hit the sidewalk. He remembers hearing two blips of a siren but the next thing he

remembers after that is wearing handcuffs and being asked to get into a police car. In the incident

at some point he received a head injury. There was a three inch bump on the right side of his head

and he was in some pain the next day and went to see a doctor. He was told he had a concussion.

He says that he could not even remember his phone number.

[43] At no point did he hear anyone say “stop, police”.

[44] Mr. Tysdal testified on his own behalf and said he had a clear recollection of what occurred.

He was a new firefighter having started just in October, 2011. He got to Lydia’s about 8:00 p.m. and

left about 1:00 a.m. and went to Bud’s on Broadway. He indicated that he drank a couple of pints

of beer at Lydia’s and nothing at Bud’s on Broadway.

[45] He described all three of the other firefighters as really good friends. Mr. Hamilton is his

preceptor, a kind of mentor at work, so he feels especially close and responsible to him.

[46] As they were walking down the bridge he remembers Mr. Walliser in his white gi trailing

behind them. He remembers him shouldering past them and busting through. It was all in good fun.

He remembers Mr. Hamilton and Mr. Walliser locking arms and jostling each other when they fell

to the ground laughing. He says they were all laughing. He testified there was no spear tackle or

tackling from behind. He was watching them when they fell to the ground. They continued to

wrestle around there. There were no punches thrown, no choking, they were just play fighting.

There was nothing aggressive about it according to him.

-12-

[47] All of a sudden he heard two blips of a siren and saw a police car that had pulled up beside

them. He was surprised. He saw the male officer get out of the driver’s side. He now knows that

to be Constable Lisson. The vehicle was very close to the barrier, almost parallel to it. Constable

Lisson ran up and he realized that the police officer was misunderstanding the situation so he began

to yell “they’re play fighting”. Constable Lisson went over the rail and pushed Mr. Walliser. He

testified that the police officer never said anything. He says he saw the police officer push Mr.

Walliser off Mr. Hamilton, but the police officer still had not said anything. He did not say anyone

was under arrest. Mr. Tysdal and Mr. Nickel continued to yell “we’re all friends, we’re all friends,

stop”.

[48] At that point in time his attention turned to the police car as he saw Constable Talloden get

out of the vehicle on the passenger side and stand on the other side of the barrier. He testified he

never saw any pushing by Mr. Walliser on the police officer. Indeed after Mr. Walliser was pushed

off Mr. Hamilton, that was the last time he saw him get involved in any way during this incident.

What he did see was Constable Lisson directly on top of Mr. Hamilton, his knee on Mr. Hamilton’s

body. He kept saying “stop, stop” while the police officer and Mr. Hamilton were kind ofwrestling

with their arms together. Everyone was yelling at the police officer to stop. He testified “none of

our pleading was heard” and he became afraid for his friend and mentor Mr. Hamilton. He says he

pulled Constable Lisson up and grabbed him under his right and left shoulder in the chest area from

behind. He was trying to pull Constable Lisson back from the situation telling him three or four

times just to take it easy. Mr. Hamilton was saying “we’re fine, we’re fine” and his arms were

struggling with Constable Lisson. He didn’t see any punching either from his friend Mr. Hamilton

or Constable Lisson nor did he hear Constable Lisson say anything about anyone obstrncting or

interfering in an arrest or even that anyone was under arrest. He did hear Constable Lisson tell

Constable Talloden she should call for back up and get her pepper spray. Subsequently she was

behind all of them using her pepper spray. Throughout he had no contact with Constable Talloden.

He swore he had not been in a headlock. Except for seeing her briefly on the other side of the barrier

-13-

when she got out of the vehicle until after she used her pepper spray, he did not see her do anything.

He did not see her strike anyone’s knee or elbow, indeed he testified she never touched anyone

before using the pepper spray. Shortly after they were sprayed, other police officers arrived.

[49] In cross-examination by other defence counsel, Mr. Tysdal said that Constable Lisson never

responded to any of their pleas that they were all fiends and just playing around. He also reiterated

that after Mr. Walliser was pushed off Mr. Hamilton by Constable Lisson, he fell backwards and he

doesn’t know what happened to him after that. As far as he can recall Mr. Walliser was not involved

from that moment on.

[50] In cross-examination by the Crown, Mr. Tysdal agreed that he knew that Constables Lisson

and Taloden were police officers but that neither of them yelled “police officers, stop fighting” nor

did Constable Lisson ever yell “stop, you’re under arrest”. Indeed until he asked his partner to call

for backup and use the pepper spray he hadn’t said anything. Mr. Tysdal said his intention

throughout was to defuse the situation, to stop Constable Lisson from grappling with his friend Mr.

Hamilton. He felt he was trying to stop the situation from getting out of hand. He does not believe

that Constable Talloden grabbed him and he continued to deny in cross-examination that he ever

pushed her or touched her. He testified that he didn’t know why he is accused of that as he was

neither forceful or malicious in anything he did and he reiterated that he never saw her use any knee

or elbow blows to anyone, nor did he see any punches thrown.

[51] Mr. Hamilton also testified and indicated that he had about ten drinks at Lydia’s and Bud’s

and was feeling the effects of the alcohol. He recalls walking down the Broadway bridge, all four

of them in a jovial mood. He recalls his friend Mr. Walliser in his karate gi goofing around,

practicing his karate moves and upon hearing footsteps, seeing Mr. Walliser run towards them,

smiling. He watched Mr. Walliser bump into his friends Mr. Tysdal and Mr. Nickel, run through

them and then Mr. Hamilton ran back towards Mr. Walliser. They grappled and they went down to

the ground. He says they were horsing around and were having a friendly tussle. He says they were

-14-

grappling on the ground when all of a sudden someone was on him hard. His head was pinned to

the ground and he couldn’t move. He was face down. At that time he didn’t know who was on top

of him. He had heard nothing before this happened. He did not know that there was a policeman

there. He struggled to get up for about five or ten seconds and as he was finally getting up a fist

came at him. He turned his head and took the fist on top of his head. When he went to duck and

punch back he saw a badge, so instead of punching he grabbed on as he was confused about what

was happening.

[52] He grabbed onto a hand that was swinging at him and turtled and got turned around sideways.

The next thing he knew Constable Talloden was spraying him in the face with pepper spray.

[53] He says he was just holding on trying to process what was happening. His response to being

pepper sprayed was to tell the officers “what the hell is going on, are you guys crazy?” He continued

to hold onto Constable Lisson and all of a sudden was pulled over the wall and arrested.

[54] He denies ever being choked by Mr. Walliser. He denies ever being struck by Mr. Walliser

and he denies ever striking Mi. Walliser.

[55] He denied hearing anyone say “stop fighting, stop, police” or any words to that effect. Under

cross-examination from the Crown he stuck to his story. He agreed that he had a bump on his head

but believes that was from a blow by the officer. He indicates from his vantage point he never saw

anyone push Mr. Walliser off him. All he knows there was someone on him pushing him down to

the ground and then punching at him. It was confusing and he had difficulty processing what was

going on as it was happening was very quickly and he agrees the alcohol may have affected his

judgement and memory. However, he only swung at the individual who hit him because that

individual hit him first. As he was swinging he saw the badge and so he stopped swinging and held

onto the officer trying to process what was happening. To him it just didn’t make sense.

-15-

ANALYSIS

[56] The Crown must prove as an element of all the offences charged against these individuals,

that at the time of this scuffle, the police officer was engaged in the lawful execution of his duty.

As well, the officer has to have grounds for the arrest and he must inform the person the reason for

that arrest. I have reviewed the cases provided to me by counsel. It is important to remember in

Canada, as was stated in R. v. Mann’ by our Supreme Court:

Absent a law to the contrary, individuals are free to do as they please.By contrast, the police may act only to the extent that they areempowered to do so by law.

[57] To cut to the chase, if I am not satisfied that Constable Constable Lisson had reasonable

grounds to physically intervene in the scuffle between Mr. Walliser and Mr. Hamilton, by pushing

Mr. Walliser then he was not acting in the execution of his duties and these charges must fail.

[58] Section 495(1 )(a) ofthe Criminal Code states that a police officer may arrest without warrant

a person who has committed an indictable offence or who, on reasonable grounds, he believes has

committed or is about to commit an indictable offence or (b) a police officer may arrest without a

warrant a person he finds committing a criminal offence.

[59] Before an arrest can be made a peace officer, that officer must know that the arrestee has

committed an offence.2 In other words, the important thing to understand in looking at the power

of arrest is that the police may only alTest when they have “reasonable grounds to believe” that the

person has committed an offence. The leading case on the application of s. 495 is R. v. Storrey.3 The

1 [2004] 3 S.C.R.

2 R. v. Klimchuk(1991) 67 C.C.C. (3d) 385 (B.C.C.A.)

(1990) 1 S.C.R. 241

-16-

Supreme Court in that case stated that the purpose of s. 495 was to strike the appropriate balance

between an individual’s right to liberty and the need for society to be protected from crime.

Reasonable and probable grounds must be established to demonstrate the police were acting within

their powers when they attempt a warrantless arrest.

[60] In R. v. Grothein4the question ofreasonable and probable grounds depends upon a bonajIda

reasonable belief in a state of facts that, if true, justify the course taken. In Storrey, supra, the

Supreme Court indicated that reasonable grounds consist of two components; the subjective and the

objective. A police officer must personally believe, on reasonable grounds, that the accused has

committed the offence in question. In addition, however, it must be objectively established that

those reasonable and probable grounds did in fact exist. That is to say a reasonable person standing

in the shoes of a police officer would have believed that reasonable and probable grounds exist to

make the arrest.

[61] In this case before me the police officer moved to intervene physically. That intervention

must be based on reasonable and probable grounds for me to determine that he was acting in the

execution of his duty.

[62] The officer grounded his actions in the belief that he was witnessing a serious aggressive

assault. He said he had seen what he described as a spear tackle and punching motions. He stated

that up until the time he leaned over the barrier and saw Mr. Walliser choking Mr. Hamilton he was

not sure if what he was observing was a criminal assault or not.

[63] It was the choking that convinced him he was witnessing an assault and that he had a duty

to act in spite of being told this was play fight between friends.

2001 SKCA 116

-17-

[64] The Crown has not satisfied me that Mr. Walliser was choking Mr. Hamilton. I do not accept

that the police officer saw this. The reasons I did not accept this evidence are:

1) in spite of the action being the raison d’être ofwhat follows, thereis no mention of it in the officer’s notes; no mention of it in his policereport; and the first time it is disclosed to anyone was when hetestified on the stand at trial;

2) it was not observed by Constable Talloden who said she waslooking over the balTier at the same time, nor was it in her notes orher police report;

3) given his near instantaneous arrival on the scene Constable Lissonsuggests that Mr. Walliser went from striking at Mr. Hamilton tochoking him very quickly; I am dubious that Mr. Hamilton had timeto turn red;

4) none of the other witnesses, including Mr. Hamilton himself, saidthere was any choking.

[65] On all of the evidence I cannot say that I am satisfied this happened.

[66] The accused individuals testified and I am, in determining if the Crown has proven its case

beyond a reasonable doubt, applying the approach developed by our Court of Appeal in R. v.

McKenzie5and the Supreme Court ofCanada in R. v. W. (D.) 6 believe the testimony ofthe accused -

all of them. That being the case I have determined that:

1) no assault was taking place between Mr. Walliser and Mr.Hamilton. I have also determined that Constable Lisson was told thatthis was a play fight, that these were friends and they were horsingaround;

(1996) 141 Sask. R. 221

6 (1991) 1 S.C.R. 742

-18-

2) that there was no choking going on and that the two of them wererolling around grappling on the sidewalk;

3) as a result, Constable Lisson had no reasonable grounds tophysically intervene;

4) Mr. Walliser, probably did not push Constable Lisson, but ifhe didit was only because Constable Lisson aggressively pushed him first.There were no reasonable grounds to arrest Mr. Walliser;

5) Mr. Hamilton immediately told Constable Lisson that he was notbeing assaulted, that they were friends and just fooling around. Inspite of that Constable Lisson pushed Mr. Hamilton out of the way inan attempt to get at Mr. Walliser. Any reaction that Mr. Hamiltonmay have made he wasjustified in making. There were no reasonablegrounds to arrest Mr. Hamilton for assaulting a police officer;

6) Mr. Tysdal was merely preventing Constable Lisson from gettingat his friend Mr. Hamilton as he testified things were getting out ofhand, therefore there were no obstruction of the police officer as hewas not acting in the execution ofhis duty nor did Mr. Tysdal assaultConstable Lissen.

[67] Further I have determined it would be unsafe to convict anyone based upon the evidence of

Constable Talloden who gave confusing and contradictory evidence that was not supported, either

by her partner or any of the others who were there. In particular I accept the evidence of Mr. Nickel

who observed the whole incident and testified that Constable Talloden was not involved until she

used her pepper spray and that she did not get pushed or struck or assaulted nor did she do any ofthe

things that she testified that she did.

-l 9-

Conclusion

[68] I am finding all of the accused not guilty of all of the charges. The evidence of Constable

Lisson and Constable Talloden did not convince me beyond a reasonable doubt that they had

reasonable grounds to arrest anyone. There was no obstruction. Any physical contact between the

firefighters and Constable Lisson were at Constable Lisson’s instigation and he was not justified in

using any force against them as he was not justified in intervening in the first place or arresting

anyone. He was not in the execution of his duty.

[69] All charges against all accused are dismissed.

Th

B.M. Singer, J

-20-