APEC – Commission Interim Report
The complaint is that Johann Groebner was wrongfully arrested for an assault on a cameraman at the Gate 3 area after Mr. Oppenheim was arrested. The cameraman did not testify before the Commission and Mr. Groebner was never charged.
25.1. The Arrest
Mr. Groebner was not a student at UBC but, as a practising visual artist, frequently used the campus art library. He had cycled to UBC late in the morning of November 25. After watching the noon events near the flagpole, he made his way to Gate 3 where he understood there was to be a blockade of the motorcades leaving the leaders' meeting. He said the first person to sit on the road was immediately arrested. He thought police were initially uncertain about what would happen, but soon great numbers of people were sitting on the road.
By this time, Mr. Oppenheim was in the area, using his megaphone to invite protesters to follow him to close off another exit route. Mr. Groebner said that when Mr. Oppenheim was arrested, he and many other protesters immediately swarmed the area, demanding to know why Mr. Oppenheim had been taken away and shouting " Shame" at the police. He described the mood of police and protesters as panicky and agitated.
At this point, Cst. Dale Carr noticed Mr. Groebner walking " aggressively" through the crowd. A television cameraman who had come from New York City to film the events on campus was also in the crowd. Mr. Groebner was asked to explain what happened:
I was moving away and I noticed someone following me, and I turned around and it was a cameraman who had a camera right in my face. And I moved away from him again, but he followed with the camera. So I turned around and pushed the camera to the side, out of my face. And the cameraman asked me why--what the problem, why I had done that. And at this point I was hauled away by an unknown number of Police from behind. And I resisted because I didn' t see any reason why I should be pulled off at this time.
Asked why he had reacted in that way, Mr. Groebner said:
I found the press to be quite intrusive and generally--generally from what I' d seen up at the main gate, almost endangering, or creating dangerous situations with the proximity to the police and the protestors. And I found his camera much too close. It became very intrusive at the proximity of his camera to me at the time.
When asked whether he had touched the cameraman, Mr. Groebner said:
No, I didn' t touch the cameraman, and his camera didn' t touch him anymore than he was already holding it.
Mr. Groebner said his arrest occurred within seconds after he pushed the camera.
Cst. Carr was the officer who arrested Mr. Groebner. He said he was under instructions from an Inspector or a Superintendent, he was not sure which, to arrest anyone committing an offence where the opportunity arose. He said that Mr. Groebner' s " smack" of the camera caused it to hit the cameraman on the side of the head and he considered that to be an assault. He said he viewed Mr. Groebner' s conduct as an intentional act, which delivered a blow to the cameraman, rather than simply an involuntary movement of his hand. Cst. Carr testified that he didn' t make any notes of the arrest because the situation at the time was quite chaotic, and he did not think that there would be any charges laid against Mr. Groebner. Asked what was his purpose in making the arrest, Cst. Carr said:
The purpose to arrest Mr. Groebner was to--to remove him from the scene, to remove him from the area, as he' d just assaulted somebody and I was unsure at that time whether he was going to escalate his demeanour to assault even more people. Whether his--his actions, whether he would assault somebody else, would then create the crowd to become more volatile. I felt it important to--for the safety of the crowd and the safety of the police officers, to have Mr. Groebner removed, given his state of mind at the time.
Cst. Carr was asked whether he decided not to proceed with charges before or after he had arrested Mr. Groebner:
A: My main concern was to have him removed and charges were basically the last thing on my mind, at that point.
Q: And did you then turn your mind to charges after the arrest?
A: Yes.
Q: And what was your decision at that time?
A: To not proceed with charges.
Cst. Carr said Mr. Groebner was only in his immediate presence for a matter of seconds as he quickly passed him over to other RCMP members and returned to his position in the police line. The cameraman then approached him and said: " I do not want any charges." Given that, and Cst. Carr' s own decision not to proceed with charges, the officer was asked why he did not take steps to have Mr. Groebner released from custody. He explained:
Mr. Groebner acted out in an aggressive manner and by releasing him right there again, nothing to say that he wasn' t going to continue doing that same aggressive behaviour. And while that crowd was there, my concern was to not have him rejoin that crowd and--and act out again.
Cst. Carr said he saw no reason for Mr. Groebner to have lashed out at the cameraman. He said Mr. Groebner had to be removed from the area because he was creating violence in an area where people were gathered for non-violent protest.
Cpl. Patrick Walsh was also in the police line. He was not acquainted with Cst. Carr, but he made the same observations. Cpl. Walsh said that while police were trying to encourage protesters to leave the roadway, Mr. Groebner was verbally inciting the crowd to occupy the road. Mr. Groebner denied this. Cpl. Walsh moved forward to make the arrest but Cst. Carr beat him to Mr. Groebner' s side by one or two seconds. He helped in the arrest for 10 seconds or so but, like Cst. Carr, withdrew to let other members escort Mr. Groebner to an awaiting police van.
Cpl. Walsh believed that Mr. Groebner had a scarf pulled up over his face and his cap well down over his forehead. According to Cpl. Walsh, Mr. Groebner' s face was " masked" and the TV camera appeared to be easily drawn to him. Mr. Groebner did have a scarf outside his jacket and around his neck but he denied that it was used as a mask. He said that, to subdue him as he protested his arrest, the police officers used his scarf as a tourniquet, which caused him discomfort but no ill effects. Both Cst. Carr and Cpl. Walsh denied that Mr. Groebner was subdued in this manner in their presence.
Mr. Groebner was initially told that he was being arrested for assault, but at the UBC Detachment he was handed a process sheet indicating that he was being held for breach of the peace, though he was never formally told that the assault charge had been dropped. He was then taken to the VPD Detachment in downtown Vancouver and released between 11:00 p.m. and 11:30 p.m. Charges were never laid.
25.2. Issues
It is not possible to resolve some of the discrepancies in the evidence given by the two officers and Mr. Groebner. That does not prevent me, however, from resolving the primary issues: namely, whether Cst. Carr had lawful authority to arrest Mr. Groebner. There are three possibilities. I must consider whether Cst. Carr was authorized to arrest Mr. Groebner:
- for common assault, relying on the police power to arrest without warrant that is contained in section 495 of the Criminal Code;
- for breach of the peace, pursuant to section 31(1) of the Criminal Code; or
- for a reasonably apprehended breach of the peace, pursuant to the common law power to arrest.
25.2.1. Common Assault
Section 265(1) of the Criminal Code says that a person commits an assault when:
without the consent of another person, he applies force intentionally to that other person, directly or indirectly...
The legal threshold for common assault is a low one. The law has long held that the mere touching of a person in anger may constitute an assault.
25.2.1.1. Power to arrest
Section 495(1)(a) of the Criminal Code authorizes a police officer to arrest, without warrant, " a person who has committed an indictable offence." This aspect of section 495(1)(a) applies where the arresting officer personally witnesses the commission of the offence but was unable to prevent it or make the arrest before completion of the offence: Klimchuk (see Chapter 21).
In deciding whether an arrest is authorized under this section, a court will consider whether it would have been apparent to a reasonable person, standing in the shoes of the arresting officer, that an offence had been committed.
Cst. Carr believed he saw Mr. Groebner, who was very annoyed at the cameraman, strike out at the camera and cause it to hit the cameraman. I am not satisfied that the contact between Mr. Groebner' s hand and the camera resulted in it hitting the side of the cameraman' s head, as Cst. Carr believed it did, or his face, as Cpl. Walsh described it. Mr. Groebner denied that the camera hit the cameraman and the alleged victim (who did not testify at the hearing) immediately made it clear to the police, after witnessing the arrest, that he had no interest in seeing charges laid.
I am satisfied that Mr. Groebner took a swing at the camera simply to move it away from his person and that he did not intend to assault the cameraman. Nevertheless, I am also satisfied that Cst. Carr genuinely believed that an assault had occurred. Cst. Carr and Cpl. Walsh, perhaps quite understandably, but incorrectly I believe, mistook Mr. Groebner' s action as an act of violence whereas it was simply an attempt by a very annoyed Mr. Groebner to move a camera out of his face.
Given the fact that Cst. Carr believed he saw the camera hit the cameraman' s face, and the fact that the legal threshold for assault is extremely low, it would have been apparent to a reasonable person standing in Cst. Carr' s shoes that a technical assault had occurred. A reasonable person, believing that he or she had seen Mr. Groebner intentionally strike out at the camera in annoyance and frustration, such that it made contact with the cameraman' s head, would have been entitled to conclude that an assault had occurred.
If there were nothing more to section 495 of the Criminal Code, I would be satisfied that this section gave Cst. Carr the legal authority to arrest Mr. Groebner. However, subsection (2) of section 495 puts limits on that legal authority and I must consider whether they apply here.
25.2.1.2. Public interest limitations on the power to arrest
Section 495(2) of the Criminal Code provides that a police officer shall not arrest a person for certain offences (such as assault) if the officer believes, on reasonable grounds, that the public interest may be satisfied without arresting the person. One of the factors to be taken into account in assessing the public interest is the need to prevent the commission or continuation of an offence. If it is reasonable for the officer to conclude that the public interest may be satisfied without an arrest, the officer must not arrest the offender. In that case, the officer would issue an appearance notice or seek the issuance of a summons.
Cst. Carr testified that the purpose of arresting Mr. Groebner was to prevent him from assaulting somebody else and inciting the crowd to become more volatile, thereby endangering the safety of the crowd and the police officers. I am not satisfied that Cst. Carr had reasonable grounds to believe it was necessary to arrest Mr. Groebner in order to satisfy the public interest. Although Mr. Groebner' s conduct may have technically qualified as an assault, it was a mere trifle and, were it not for the fact that Cst. Carr had been instructed by a superior officer to arrest whenever he detected any evidence of an offence, I believe it is highly improbable that he would have exercised his discretion to arrest Mr. Groebner. Although Cst. Carr may have reasonably believed that he had witnessed Mr. Groebner commit what was surely an extremely minor assault, he did not have reasonable grounds to believe that Mr. Groebner might repeat the offence or commit another offence.
I believe Cst. Carr and Cpl. Walsh to be honourable, competent police officers. Cst. Carr performed what he saw as his duty to maintain the peace and uphold the law. Cpl. Walsh was like-minded and would have made the same arrest had Cst. Carr not stepped in first.
The fact is, however, that neither Cst. Carr nor Cpl. Walsh had Mr. Groebner under observation for any length of time. It was a snap decision prompted by one trifling act on the part of Mr. Groebner that caused Cst. Carr to move in and make the arrest. Cst. Carr' s attention had been attracted by what he described as Mr. Groebner' s " aggressive type manner" of walking through the crowd. I believe Cst. Carr acted precipitously in making the arrest. Accepting that he had a concern about Mr. Groebner' s conduct, it would have been reasonable to keep him under observation, but it was not in the public interest to arrest him and take him into custody.
I conclude that Cst. Carr was prohibited from arresting Mr. Groebner by section 495(2) of the Criminal Code.
Although the arrest was not authorized under section 495 of the Criminal Code, counsel for the 44 RCMP officers also submitted that the arrest was authorized by both section 31(1) of the Criminal Code and the common law power to arrest for a reasonably apprehended breach of the peace. These arrest powers are not subject to the public interest limitations in section 495 of the Criminal Code. I will address the statutory and common law powers to arrest for breach of the peace in turn.
25.2.2. Breach of the Peace
Section 31(1) of the Criminal Code says that a police officer who sees someone breaching the peace is justified in arresting that person. A breach of the peace generally is conduct that actually harms or threatens to harm another person, or some other disturbance of the public peace. I do not believe that Mr. Groebner's conduct amounted to a breach of the peace, nor could it reasonably be construed as such, even if, technically speaking, it may have qualified as an extremely minor assault under section 265. While the slightest touching in anger may constitute an assault, I cannot accept that every assault is, as a matter of law, a breach of the peace pursuant to section 31 of the Criminal Code.
I conclude that section 31(1) of the Criminal Code did not entitled Cst. Carr to arrest Mr. Groebner.
25.2.3. Common Law Power to Arrest for Breach of the Peace
As discussed earlier in this report, a police officer may arrest a person in order to prevent an apprehended breach of the peace, if the officer honestly and reasonably believes there is a real risk of imminent harm: Hayes; Brown.
I am satisfied that the police were genuinely concerned about the situation getting out of hand immediately following Mr. Oppenheim' s arrest. Cst. Carr found himself in the midst of an agitated crowd, with tensions between police and protesters rising, and with instructions to arrest for any offence if the opportunity arose. Seeing what he took to be an assault by Mr. Groebner, Cst. Carr arrested him. As he explained at the hearing, his intention was to remove from the scene a person who might commit another offence or incite the crowd to become more volatile.
However, given the trifling nature of Mr. Groebner' s alleged assault, it was not reasonable for Cst. Carr to conclude that Mr. Groebner' s continued presence presented a real risk of imminent harm. Rather, I believe that Cst. Carr was unduly influenced by his instructions to arrest anyone committing an offence whenever the opportunity to do so arose. He acted blindly on that directive without applying his mind to the factual situation he faced. Had he done so, I am satisfied that his better judgment would have told him not to proceed as he did at that time.
Therefore, the common law power to arrest for a reasonably apprehended breach of the peace did not entitle Cst. Carr to arrest Mr. Groebner.
25.3. Arrest Not Appropriate
Given all of my conclusions with respect to the possible sources of authorization for this arrest, I conclude that the arrest of Mr. Groebner was not appropriate to the circumstances.