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CASE LAW 3


May 5, 2014
By Mike Novakowski

Ontario highest court has overturned the “cause a disturbance” conviction of a man who yelled and swore at police.

In <R. v. Kukemueller, 2014 ONCA 295> the fire department was called to the accused’s rural address in the early evening for a car fire. The car, belonging to Kukemueller’s girlfriend Wiles, had crashed into a tree and was on his property. While reroute the fire department requested police assistance.

There was a crowd of young people at the scene who appeared to have been drinking. The firefighters extinguished the fire, which police learned may have been caused by people playing “demolition derby.” An officer spoke to Kukemueller and Wiles, who both smelled of alcohol. Wiles told police she had been driving the car when it hit the tree and was arrested for dangerous driving, but struggled with the officer.

Kukemueller and some of his friends became upset and the officer used her emergency button to request backup. Accompanied by one of the firefighters, the officer took Wiles to the police car at the road and the crowd of young people started yelling. Kukemueller was upset and yelling and swearing. More officer’s arrived and, not long afterwards, so did Kukemueller’s father, driving an off-road vehicle. He was arrested for impaired driving.

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Kukemueller reacted with a loud, profane and angry tirade against police. About 22 people, including family members, friends, firefighters and police officers, were present. Even Kukemueller’s grandmother came out of her house and tried to calm him down. Kukemueller was arrested and charged with causing a disturbance. He was later charged with assault at the police station for allegedly scooping water from his cell toilet, throwing it around and getting some of it on a civilian cell attendant.

An Ontario Court of Justice judge concluded that Kukemueller had caused a disturbance, finding his “behaviour had an effect on the other family and friends who were present and contributed to raising the tension at the scene amongst those people as well as the police.” In her view, Kukemueller’s behaviour “made things worse” and she convicted him of causing a disturbance in or near a public place, contrary to <s. 175(1) (a)> of the Criminal Code.

As for the assault charge, the judge wasn’t satisfied that Kukemueller had deliberately splashed water on the cell attendant and acquitted him.

Kukemueller’s appeal to the Ontario Superior Court of Justice was unsuccessful. Since his conduct “contributed to raising the tension at the scene,” the appeal judge concluded that the trial judge did not err in holding that the offence of causing a disturbance was made out.

A further appeal to the Ontario Court of Appeal was successful. It concluded that the trial judge erred in law in determining that a disturbance occurred. Although the court noted it wasn’t condoning yelling obscenities at the police – conduct it described as obnoxious or deplorable – what happened here wasn’t criminal.

Under <s. 175(1)(a)> of the Criminal Code it is an offence for someone who, “not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language…” There are two elements to this offence:

1 One of the enumerated acts (such as shouting, swearing, etc);
2 The commission of those acts caused a disturbance in or near a public place.

There was no doubt that Kukemueller committed one of the enumerated acts by yelling and swearing at police. As for whether those acts “cause(d) a disturbance in or near a public place,” the court found they did not.

The meaning of “disturbance” in <s. 175(1)(a)> is not so expansive as to include the mere disturbing of the peace or tranquility on one person’s mind. Mere mental or emotional annoyance or disruption is insufficient. Rather, the meaning of “disturbance” is more restrictive and the enumerated conduct must cause, in the words of the Supreme Court of Canada in< R. v. Lohnes, (1992) 1 S.C.R. 167,> “an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question.”

The aim of the offence is “not the protection of individuals from emotional upset but the protection of the public from disorder calculated to interfere with the public’s normal activities” and interference “with the ordinary use of a place.” Emotional upset does not amount to interference with the ordinary and customary use of the premises by the public.

Kukemueller’s conduct did not satisfy the second element of the offence – causing a disturbance in or near a public place.

“There was no evidence and no finding that the (accused’s) conduct interfered with the public’s normal activities or with the ordinary and customary use by the public of the place in question,” said Justice Sharpe on behalf of the court.

“Contributing to raising the tension at the scene of an interaction between the police and the public does not amount to the kind of disturbance that is required for this offence to be made out.”

As for Kukemueller’s grandmother coming out of her house and trying to calm him down, she was “simply concerned about his well-being. She thought that he would listen to her. She testified that she was “upset” but… emotional upset does not amount to a disturbance.”

Kukemueller’s appeal was allowed and his conviction for causing a disturbance was set aside.


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