REGINA v. PELLETIER

(1976), previously unreported

Ontario Provincial Court, Mitchell J., 9 February 1976

R. Zelinski, for the accused.

Leonard Pelletier, chief of the Fort William Band, found two Ontario Provincial Police constables on the band's land and attempted to remove them by force. He was charged with assaulting a peace officer in the execution of his duty.

It was decided that "there is no doubt that the. . . areas were within the jurisdiction of the policing responsibility of the Ontario Provincial Police." The issue of private property did arise and was considered by the court: it was determined that the provincial police did have tacit permission to enter the area.

Absolute discharge granted.

MITCHELL J.(orally): Leonard Pelletier, you are charged under s.246 (2)(a) of the Criminal Code of Canada and were remanded to this date for judgment. As the court indicated at the conclusion of the trial in reference to this matter, the court was satisfied that a case had been made out against Mr. Pelletier beyond any reasonable doubt and that the charge as preferred in the information was proper, although the court felt obliged to provide counsel with reasons for coming to the aforesaid conclusion. There are certain facts beyond dispute in this case at bar which may very quickly be summarized as follows: Constable Abthorpe, on the dates in question, to wit, August the 1st, and very early in the a.m. of August the 2nd, was operating a police vehicle referred to as a 'cruiser' with black and white markings, a standard O.P.P. vehicle. Constable Abthorpe was accompanied by Police Constable Linda Kruger on routine patrol in the area variously referred to as the 'south end' or 'west end' which in any event included, inter alia, areas of Highway 61, Oliver Lake, Cloud Lake, Mount McKay and Chippewa Park. A portion of this general patrol area, I believe, includes part within the boundaries of the City of Thunder Bay, such as Highway 61 and alternate, but mostly areas immediately adjacent to the City of Thunder Bay in the District of Thunder Bay. Constables Mitchell and Olinyk were also on duty during this time period but were not assigned to any specific area, having regard -- or having general practices detailed by Ontario Provincial Police headquarters. There is no doubt that the above areas were within the jurisdiction of the policing responsibility of the Ontario Provincial Police and, to the extent of specific as opposed to general

policing duties, there would be some overlap. Further, on holiday weekends there appears to be a police policy of double shifts and, most importantly in the mind of the court, the intelligent appointment of two officers to each police vehicle. At or about 1 a.m. Constable Abthorpe received from a police car, or through the central radio dispatcher, advice to proceed to the Mission Road, to the gatehouse on the reserve in case back-up help was required by the Mitchell vehicle which was at that time patrolling the reserve, according to evidence given by Constable Abthorpe, which evidence the court accepts. The court further accepts the evidence of Mr. Herbert Pasley, Garage Manager, as to the description of the two police vehicles involved in this matter. Although nothing specifically turned on the location of the area, it might be pointed out that the area variously mentioned as the Mission Reserve is located off Highway 61B which extends from Highway 61 to Chippewa Park. The main road running through the Mission Reserve passes through an immediate residential area and then runs for a short period from the city road 61B through a sparsely populated area, curving to the left to another residential area. As the road curves to the left, it also branches to the right, and this latter fork carries through to the area designated as the look-out at the top of Mount McKay. Approximately one half the way on this right fork from its branch to the look-out is a toll gate and gatehouse. It was at this general area that the incident in question took place. On the facts, there is no question that, as a result of a scuffle, Chief Pelletier sustained what the court considers to be minor cuts or abrasions to his head necessitating stitches - three stitches, in any event, to the one cut described as a straight cut as opposed to the round or star-shaped cut. The manner that these injuries were sustained is, of course, the crux of the case and it was necessary for the court to make certain findings of fact in this area of the evidence heard. Before doing so, however, there were issues raised, and can be considered as findings of fact also: for example, although not seriously considered by counsel, the issue of privacy or private property did arise and was considered by the court, the incident having taken place immediately beyond the gate area and at a place designated as the Sugar Bush Road. The court is satisfied, having reviewed the case of Regina v. Stenning, [1970] S.C.R. 631, 11 C.R.N.S. 68 at page 68 and more particularly page 71 and page 72, that the officers were properly in that area and that Constable Abthorpe was not a trespasser on the premises aforesaid. In any event, it is the opinion of the court that this issue was not of serious consideration as it was customary for the Ontario Provincial Police to patrol this area and were even in the process of training a special constable, which training, it would appear, has been, or almost has been, completed. Also, it would appear that permission was granted for one patrol to proceed up the mountain on the date in question. In any event, the tacit permission or authority for the policing of this area was certainly not revoked and, in the view of the court, cannot be done on the whim of any person or persons. It is also the opinion of the court that such policing is necessary for the benefit of all members of the community in view of the

previous criminal activity that has taken place in the area designated as the look-out. Chief Pelletier knew previously that this policy was followed, and, although not personally pleased, nevertheless acquiesced in this promotion and development - certainly an intelligent and responsible approach. How can any citizen decry the protection afforded to his property or person by responsible law enforcement agencies? Another area or suggestion of potential conflict in the evidence arose as a collateral issue to the main argument. This was the possibility of the Abthorpe and Mitchell vehicles meeting somewhere in the patrol areas and exchanging their respective assisting patrol constables sometime immediately before both vehicles attended the Mission Road. I'm sure that any such practice, if it did take place, would certainly not offend any police procedure and might be a welcome respite for officers during a lengthy patrol. However, all the officers were adamant that this did not take place, and the radio logs did not in any way support this allegation, save for one typographical - save for a possible typographical omission on the police logs. Of course, the issue was raised because of the positive testimony of defence witnesses, particularly Mrs. McLaurin and her daughter Bonnie. I find as a fact that such exchange did not take place either innocently or as a result of some possible conspiracy. To hold otherwise would strain the credibility of all the evidence to its breaking point. This finding of fact, therefore, seriously impairs the credibility of the evidence of the defence witnesses in reference to the main issue. The reference the court made during the trial to this situation concerning the court reporting such an occurrence to the superintendent was meant to be humorous and indicated the weight the court felt should be attributed to such an allegation in the evidence adduced at that point. Thus we find that at approximately 1 a.m., August the 2nd, 1975, Constable Mitchell, driving an unmarked police vehicle, in company with Constable Olinyk on general patrol, approached the gatehouse and toll gate on the mountain approach and found the toll gate open and raised. Subsequent evidence disclosed that Chief Pelletier had opened the gate and left it open, which was contrary to established practices. The gate is to be down and locked in place generally by 10 p.m. each night. The purpose of [opening] the gate through daytime and early evening hours is to allow the general public of the community of Thunder Bay and tourists admission to the look-out area in payment of a fee for each vehicle attending the look-out. In addition, there is now located at the look-out a snack bar and curios for purchase by the general public. Constable Olinyk approached the gatehouse on foot to check the building and met Mrs. McLaurin, the night watchkeeper. It is difficult to assess the exact conversation that ensued or whether there was misinterpretation by each of the parties in respect to the conversation of the other. But there is no doubt that Olinyk indicated he would patrol to the look-out and that no objection was raised by Mrs. McLaurin. Constable Olinyk returned to the police vehicle and he and Mitchell proceeded up the road in view of suspicions raised in their minds by the open gate and previous trouble that had taken place at the look-out

area. Constable Olinyk indicated to Mitchell that Mrs. McLaurin seemed nervous. I have little doubt that this was an accurate assessment in view of the subsequent difficulty. Mitchell and Olinyk requested back-up assistance in the event of some difficulty. Again, a most intelligent and responsible attitude and, I am sure, consistent with good police procedure. Surely such practice as calling for a back-up should be encouraged and followed, even if an officer merely thinks that there may be a possibility of some difficulty. Constables Abthorpe and Kruger responded and positioned themselves at about 1:10 a.m. just beyond the toll gate on a gravel type road extending to the left of the gate at, approximately, right angles to the main road to the look-out. Constable Abthorpe parked the marked police cruiser by backing up on to the trail referred to as the Sugar Bush Road and facing the previously referred to Look-Out Road in order to observe any vehicle or use of the latter designated route. In my mind one does not have to go further than The Police Act, R.S.O. 1970, c.351, to affirm that these constables were properly detailed and acting in the execution of their duty. In any event, it was within their general patrol area, they were in uniform in a marked vehicle and were present at a request for back-up by fellow officers and were generally engaged in investigation or observation, either as a peace- keeping mission or assisting other officers in what could be a suspicious set of circumstances. The lights of the vehicle were extinguished and, save for a type of spotlight on the toll gate house, there was little other light, save for that provided from the evening. Very shortly, I believe the evidence indicated within five minutes, although not that significant, a vehicle, a half-ton vehicle truck, approached along the Sugar Bush Trail, driven by Chief Pelletier and approaching from the rear of the police cruiser. Constable Abthorpe activated his lights, including his dome light, and ensuring that the other vehicle was at rest behind the police vehicle some fifteen to twenty feet, turned off the roof light and I believe turned off his headlights and then alighted from his vehicle, as did Constable Kruger, and approached the half-ton vehicle from the driver's side. It was at this point that the major conflict in evidence arises. Constable Abthorpe states that the vehicle driven by Chief Pelletier had its headlights on. I have no doubt that this is buttressed by the evidence. Constable Abthorpe states that Chief Pelletier alighted from his vehicle and met the constable approximately in front of the half-ton and between the front of the half-ton and the police cruiser. The language of the chief at this point was interspersed with profanity or obscenity and need not be repeated. In any event, it was in the view of the court uttered, and affirmed by the evidence of the chief himself, and certainly, I hope, not consistent with his usual sober demeanor. I am sure it was out of character. There is no doubt at this time that Chief Pelletier was aware of the status of Constable Abthorpe, the chief stating, and expletive deleted, "What are you doing on our land? No business to be here. Who are you?". Reply by Abthorpe: "I am a police officer, who are you?". Reply by Chief Pelletier, again expletive deleted: "Get off our land as you have not business being here," at this juncture jabbing Constable

Abthorpe with his finger to the left side of Constable Abthorpe's chest. The reply by Abthorpe: "I have all the right I need to be here. Keep your hands to yourself." According to Constable Abthorpe, the chief then pushed the constable backwards, grabbing the constable's left arm in the upper arm area, which the constable shook off, but was then grabbed by the front of the shirt, and a struggle ensued, resulting in Constable Abthorpe being bent backwards over the trunk of the police cruiser. Constable Abthorpe had his three-cell flashlight in his hand and promptly struck Chief Pelletier on the head, resulting in the injuries previously mentioned and as detailed in the evidence of the medical doctor. Constable Abthorpe indicated the chief was quite powerful, and a visual observation of the chief would support this assessment. During the struggle and subsequent efforts, Chief Pelletier was heard to be yelling and hollering and calling for Harvey. Constable Kruger during this altercation was able to substantially confirm the evidence of Abthorpe and also to radio to Mitchcll and Olinyk for assistance. The chief was subdued, handcuffed, and taken to McKellar Hospital Emergency for treatment. It is also significant to note that during the struggle Constable Abthorpe informed the chief that he was under arrest for assaulting a peace officer and also informed Chief Pelletier that he was drunk. Chief Pelletier gave a substantially different version. His version was that following a short initial conversation, telling the officer to leave the property of land, he was physically manhandled by being dragged out of his vehicle and struck by the officer. His evidence would seem to be buttressed and affirmed by Mrs. McLaurin. Mrs. McLaurin's evidence was given in depth and apparently with sincerity, but it was difficult to separate her evidence from fact, fantasy, and fiction. She was, and is, an elderly witness and very articulate but, in the opinion of the court, subject to flights of fantasy. I think at one point in her evidence she had most of the population of the reserve hidden in the bushes surrounding the incident. She was completely mixed-up as to the police cars, their respective occupants, their order of progress, but remained adamant and positive, although mistaken, even in collateral areas. I believe she was thoroughly mixed-up, very emotionally wrought up, as was her daughter Bonnie, and to neither of these witnesses can the court attribute accuracy in most respects. Counsel will recall that during the lengthy cross-examination of this witness, counsel was asked by the court whether the Crown counsel would persist in his cross-examination as her demeanor and responses at this point indicated inaccuracy to the court. Chief Pelletier, as confirmed by the medical evidence, as to his condition [sic]. It would therefore appear that the chief, because of the influence of alcohol, could be, and was, mistaken as to the order of events. It also explains to the court why anyone would dare to challenge a man the size of Constable Abthorpe. If I might be so presumptuous, my response to a direction of Constable Abthorpe would be: "Yes sir. Right away sir." In short, the court accepts without qualification the evidence of all the police officers and, where their evidence is at odds with the defence evidence, rejects the defence evidence. I find as a fact that the conduct of Constable Abthorpe

was proper, in accordance with good police discipline and, in his efforts to bring stability to an unusual situation, did not use any excess force whatsoever, but only that degree of force that was necessary to follow police procedure and in accordance with police procedure. My finding of fact is also applicable to the other constables who not only exercised good judgment but also used only the degree of force consistent with the circumstances and certainly not excessive. Having so stated, I do not think it necessary to review in detail the various allegations of force used. I find for the most part such allegations to be completely unsupported by the evidence.