IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Defendant George Seymour is charged with obstructing a peace officer in the execution of his duties, contrary to section 129 of the Criminal Code.  The charge arises out of an incident which took place on Church Road on the Stz’uminus First Nation reserve (“the reserve lands”) near Ladysmith, British Columbia.

[2]           Mr. Seymour pled not guilty to the charge and the matter proceeded to trial.  This is my decision following the completion of the evidence at trial.

[3]           The evidence shows that on the evening of April 3, 2017, Constable Dirnback, of the Ladysmith RCMP detachment, set up a roadblock on Church Road.  He did so as the result of a number of recent complaints about impaired driving in the area.

[4]           One of the vehicles stopped in the roadblock was driven by Roxanne Seymour, the daughter of the Defendant.  An investigation at the scene revealed that Ms. Seymour was a prohibited driver.  Constable Dirnback proposed to charge Ms. Seymour with the provincial offence of driving while prohibited, and to impound the vehicle which she was driving, as provided in section 251 of the Motor Vehicle Act.

[5]           While Constable Dirnback was arranging for the impoundment of the vehicle, the Defendant arrived on the scene.  Roxanne Seymour had called him from the roadside on her cell phone.

[6]           Constable Dirnback was on his own at the roadblock and felt himself to be in a vulnerable position.  Before the Defendant’s arrival on the scene he had become aware of hostility to his presence on the reserve lands.  He testified that he heard people shouting words of abuse at him from passing motor vehicles.  For his own safety, he began to record on his cell phone the events that were unfolding around him.  A copy of a portion of that recording was filed in evidence before me, with an accompanying transcript.  I found the recording and transcript to be most helpful in unravelling the emerging fact pattern.

[7]           The cell phone recording made it clear to me that the Defendant was surly and uncommunicative from the moment that he arrived on the scene.  The police officer greeted him with a simple “hello”, but the Defendant essentially ignored the greeting, and responded with the assertion “I come to pick up my van”.  He aggressively demanded to know why the police officer had not called him as the owner of the van, and declined to provide his name or to answer any questions about why a prohibited driver would be driving his vehicle.  The conversation became quite testy and a crowd began to gather.

[8]           There is conflicting evidence as to what exactly happened next.  The police officer’s evidence is that the Defendant asked him if he knew they were on native lands.  He pointed his finger at Constable Dirnback, waving it in his face and poking him in the chest.  According to the police officer, he also waved his finger “close to my face” and took up a fighting posture, dancing about with fists raised.   The cell phone recording and transcript are consistent with this description of the Defendant’s actions, although the value of that potential source of corroborating evidence is reduced due to the absence of any video recording.

[9]           To some extent, though, corroboration of the police officer’s testimony comes from the witness Leslie Harris, who had stopped her vehicle on the opposite side of the road out of curiosity.

[10]        Ms. Harris testified that as she sat in her vehicle, she was approached by Richard Wyse, who was also a resident on the reserve lands.  Mr. Wyse told Ms. Harris that he had been driving along Church Road himself and, like Roxanne Seymour, he had been stopped by Constable Dirnback and was being investigated for driving while prohibited.  His vehicle was parked at the roadside behind the Seymour vehicle. 

[11]        Mr. Wyse and Ms. Harris engaged in some further discussion, during the course of which Ms. Harris offered Mr. Wyse a ride home.  As the discussion continued, Ms. Harris could see the Defendant arriving on the scene and beginning to walk toward the police car.  Initially, however, her attention was distracted from what was happening across the street because of her conversation with Mr. Wyse.

[12]        After a few moments, Ms. Harris noticed that the dealings between the Defendant and Constable Dirnback were becoming heated, or at least increasing in volume, and she could not help overhearing the gist of the discussion taking place between the two men.  She could tell that the Defendant was trying to get his van back from the police, without success.  She saw the Defendant pointing his finger at Constable Dirnback, but did not see him actually poke the officer in the chest.  That is perhaps not surprising given her divided attentions and her unwillingness to become directly involved in the altercation between the two men.

[13]         Ms. Harris was asked in cross-examination if she ever saw the Defendant “strike” the police officer and she said no.  On careful consideration, however, I have concluded that the use of the word “strike” in the question was unfortunate, and that as a result Ms. Harris’ response is not particularly helpful to the analysis.  In ordinary usage, the word “strike” in this context might well be taken as referring to slapping or punching a person, as opposed to merely poking or tapping someone in the chest.  It might have been helpful to know if Ms. Harris ever saw the Defendant “make physical contact” with the police officer, but she was not asked that question.

[14]        Of far greater significance, it seems to me, is Ms. Harris’ testimony that she observed the Defendant to put his fists up in a fighting stance.  She was asked if perhaps the Defendant had simply put up his arms as he was backing away, in a gesture of frustration.  I observed Ms. Harris to pause before answering that question, and then to slowly say words to this effect:  “No, there is no mistake.  He put his arms up to fight.  I saw that.” 

[15]        Ms. Harris was in a rather uncomfortable situation giving evidence in this case.  She is a lifelong resident of the Sz’timinus Reserve and she considers herself to be a friend of the Defendant.  She did not wish to become involved in this matter and it was precisely for that reason that she avoided giving a statement to the police for some weeks after the event.  It was obvious to me that in the witness box she wrestled with the tension between incriminating a friend, on the one hand, and complying with her obligation to tell the truth, on the other hand.  In the end, it was my view that to the extent that she did indeed incriminate the Defendant her evidence was most compelling.

[16]        Richard Wyse also testified, but I did not find his evidence to be reliable.  In essence, his testimony was that the Defendant did point his finger at the police officer and did tell the officer that he was trespassing on native land, but then simply backed off without any physical contact or threat of physical contact.  He repeated the phrase “George was just backing away” over and over again, as a sort of mantra, even where it did not relate to any question that he was being asked.  I found that that deliberate repetition detracted greatly from his credibility.

[17]        More importantly, perhaps, Mr. Wyse testified that although he had been stopped at the scene for driving while prohibited, he was never prosecuted.  Plainly that is not true, and counsel agreed that it is not true.  Constable Dirnback testified that he later served a summons on Mr. Wyse relating to the offence of driving while prohibited on Church Road on April 3, 2017 and court records indicate that the case against him is in process.

[18]        For these reasons, I discount Mr. Wyse’s version of events wherever it differs from the testimony given by either Ms. Harris or Constable Dirnback.

[19]        In short, I am satisfied that the Defendant assaulted Constable Dirnback at the roadside by poking him in the chest, waving his finger about the officer’s face, and then by taking up a fighting stance.  The extent of the assault in a purely physical sense could fairly be dismissed as fairly minor in nature, even silly given the relative level of physical fitness between the two men, but when taking into account all of the surrounding circumstances it is not at all surprising that the police officer felt that the Defendant’s behaviour was putting his personal safety at considerable risk. 

[20]        Constable Dirnback’s quick decision to then arrest the Defendant for assault was fully justified as being within the bounds of section 495 of the Criminal Code.  The offence which presented itself to the officer (assaulting a peace officer) was one which could be prosecuted either by indictment or by summary conviction, but it was one which threatened to continue, or even escalate, unless an arrest took place immediately.

[21]        The evidence then leaves no room whatever for doubt about the cause for the unfortunate and protracted physical altercation which took place between Constable Dirnback and the Defendant after the words of arrest were uttered.  The Defendant simply refused to submit to the arrest.  He did not acknowledge the legitimacy of the arrest and he refused to be handcuffed.  The evidence makes it abundantly clear to me that the police officer himself had no stomach for a physical battle, and there would not have been any such battle had the Defendant merely submitted.  Instead, he chose to posture and “play to the crowd”, even when it was apparent that continued resistance could lead to physical harm to himself. 

[22]        I return to the evidence of Leslie Harris for a moment.  In the course of her cross-examination, she was asked if she saw the Defendant being subjected to the police officer’s taser gun on three occasions in the course of the ongoing tussle.  She agreed that she saw that, but added “he wouldn’t stop scuffling, he wouldn’t comply”.  That comment really summarizes the entire unfortunate incident, in my view.

[23]        As a result I am satisfied beyond reasonable doubt that when he attempted to arrest the Defendant, Constable Dirnback was acting in the lawful execution of his duty.  He clearly believed, on reasonable grounds, that the offence of assaulting a police officer had just occurred and that the only reasonable response was to effect an arrest.  I think that he was justified in reaching that conclusion.  The Defendant’s decision to refuse to submit to the arrest was made deliberately and without lawful excuse.  The extended confrontation which occurred thereafter flowed directly from that decision and amounted to an obstruction of the police officer.  All of the factors required for conviction under section 129 of the Criminal Code, as set out in R. v. Westlie (1971), 1971 CanLII 1166 (BC CA), 2 CCC (2d) 315 (BCCA) are therefore satisfied.

[24]        I could end the analysis without going any further.  The Crown has proved the charge set forth in the information.  I heartily endorse the notion that in most circumstances, it is unwise and undesirable for a court to wade into issues that are unnecessary for a determination of the precise question to be decided. 

[25]        It seems to me, however, that in this case the underlying issue explored at length during the trial, regarding the police officer’s authority to initiate a Motor Vehicle Act prosecution for prohibited driving on Church Road, cannot be swept to the sidelines quite so easily, tempting though that option might be.  Inevitably, the issue will rear its head once more as soon as the sentencing stage of this trial takes place.  The determination of an appropriate sentence, at least in part, will surely be coloured by the assessment of whether the police officer exceeded his authority by initiating a prosecution for driving while prohibited against Roxanne Seymour, thereby bringing into play the impoundment of the Defendant’s motor vehicle and provoking the unfortunate confrontation with the Defendant himself.

[26]        Reluctantly, therefore, I propose to venture into a discussion on the thorny issue of whether Church Road has been demonstrated by the Crown to be a “highway” as defined in the Motor Vehicle Act.  The issue arises of course because any prosecution for the Motor Vehicle Act offence of driving while prohibited requires proof that the driving occurred on a highway.  That is an element which the Crown must prove beyond doubt in order to secure a conviction for driving while prohibited:  R. v. Canute, Charlie, Joe and Morrison, [1983] 5 W.W.R. 566 (BC Co. Ct.) at 574.

[27]        I begin with a description of the roadway in issue. 

[28]        The Szt’uminus Reserve occupies almost all of a peninsula east of Ladysmith.  Church Road, which is located entirely on reserve lands, runs generally in a north-south direction over a distance which I infer from the evidence to be slightly less than 3 kilometers.  At the northern end it intersects with Tideview Road and at its southern end it intersects with Shell Beach Road.

[29]        Shell Beach Road marks the southern boundary of the reserve lands.  The non-reserve lands south of Shell Beach Road, at the southern tip of the peninsula, include about two dozen ocean front residential properties in a development called “Fairtide”.  Also to the south of Shell Beach Road is a park called Elliott Beach Park, owned and operated by the Cowichan Valley Regional District, and open to the public.  Constable Barry Fulford, who is the Ladysmith RCMP detachment’s liaison officer with the Stz’uminus First Nation and who gave evidence in this case, testified that Elliott Beach Park could fairly be described as a day use park, used by picnickers and nature lovers generally.

[30]        Church Road is not the only route which traverses the reserve lands in a north-south direction, but it is the most direct route.  If the driver of a motor vehicle were to proceed to the northern terminus of Church Road – the Tideview Road intersection – he or she could then continue by a fairly direct route over two or three kilometres to Yellow Point Road, giving access to the Yellow Point tourist area, and ultimately to the urban areas of Ladysmith and Nanaimo.

[31]        Church Road was built by the Stz’uminus First Nation and it is maintained entirely by the Stz’uminus First Nation.  It does not have an asphalt surface, but is hard-packed and oiled regularly so that it is in good condition.

[32]        I find as a fact that at the time of the incident, which is before the court, there was a sign on Church Road, near its intersection with Shell Beach Road.  The sign would be readily visible to drivers turning from Shell Beach Road to travel northbound on Church Road.  The sign read:  “You are entering the territory of Chemainus First Nation.  No trespassing or dumping allowed.  Prosecution will be enforced”.  Identical signs were in place at the intersection of Tideview Road and Kulleet Bay Road, close to the northwest corner of the reserve, and at the intersection of Shell Beach Road and Tideview Road, near the southeast corner of the reserve.

[33]        With that as a general physical description of Church Road, I turn to the legislation which must be applied in order to arrive at a determination of whether the road is a “highway”.

[34]        The word “highway” is defined in section 1 of the Motor Vehicle Act as follows:

[35]        The reference to the term “industrial road” is not relevant to the present case and I will say no more about it.

[36]        The term “highway” is then defined in the Transportation Act as follows:

[37]        Considering the frequency with which the term “highway” must surely arise for interpretation in legal proceedings, the legislative guidance provided is remarkably bloated and cumbersome.  It is at least safe to say, without fear of contradiction, that a passageway or roadway may obtain status as a “highway” by meeting any one of several different - and sometimes overlapping - criteria.

[38]        In the present case, the submissions of counsel have focused upon that part of the definition found in sub-paragraph (b), referring to “every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles”.  Counsel have directed my attention to a number of authorities in this province which have attempted to grapple with that part of the definition and apply it to particular fact patterns.  In chronological order those cases are:

[39]        I was also provided with a copy of the decision in R. v. Bigeagle, [1978] SJ No. 486, in which the Saskatchewan Court of Appeal interpreted a legislative provision in the province of Saskatchewan which was essentially identical to the provision under consideration in the present case.

[40]        I have read all of the above authorities with interest.  In terms of general guidance in the interpretation of that part of the definition of the word “highway” that is under consideration here, I have found the decisions in Joe and in McMeekin to be particularly helpful.  In the Joe case, the Court of Appeal was considering the merits of the dismissal of a charge under the Motor Vehicle Act for driving without licence plates on a road on reserve land. Davey, CJBC said this at pages 3 to 4:

[41]        In McMeekin, Cowan, Co. Ct. J. reviewed the relevant authorities at some length before summarizing the law in the following helpful passage, at paragraph 12:

[42]        In the present case, the Crown called four witnesses whose evidence, to a greater or lesser extent, touched upon the application of the Motor Vehicle Act definition of the word “highway” to Church Road.

[43]        Constable Dirnback, the police officer who ultimately came into conflict with the Defendant, gave some limited evidence on the point.  He described the area where he set up his roadblock as being forested, with low visibility and with no housing in the immediate vicinity.  He described Church Road generally as being “relatively busy”, although less so than Yellow Point Road to the north.  He also described Church Road as being “an open road”, by which I infer that he meant that it was open to travel by the general public, but I acknowledge right away that he did not provide any explanation of his intended meaning.  In fairness to Constable Dirnback, at the stage in the trial where he gave his evidence on these points, it had not yet become clear that the status of Church Road was a contentious issue.  I do not place great weight on his testimony when attempting to determine whether Church Road is a highway.

[44]        Once it became clear that the status of Church Road was very much in issue in this case, the Crown was given leave to re-open its case, without objection from the defence.  The Crown then called three witnesses, being Brenda Teo, Shari White and Constable Fulford, and at the defence request presented a fourth witness, Richard Wilson, for cross-examination purposes.

[45]        Brenda Teo testified that she is a member of a small church located on Church Road.  By reference to the exhibits filed in this case, I would infer that the church is located a kilometre or two north of the location where Constable Dirnback set up his roadblock.  Ms. Teo said that the church has about 20 regular members, some of whom come from as far away as Duncan and Nanaimo.  All of the church members are First Nations individuals, and that has always been the case, but the church is open to all.  Services are held each Sunday at the church, and baptisms and weddings take place there from time to time.

[46]        The only inference that can fairly be drawn from Ms. Teo’s evidence is that those who attend the church use motor vehicles and travel along Church Road.  Those people would certainly be categorized as “members of the general public”, in my view.

[47]        After giving the matter careful consideration, however, I do not believe that Ms. Teo’s evidence assists the Crown.  Those who attend the church, it seems to me, would not be doing so “for a purpose of their own”, to use the phrasing of Davey, CJBC in the Joe case, but rather for a purpose incidental to First Nations ownership of the property.  The church is, after all, named the “Indian Shaker Church”.  Attendance at services there, or even at weddings or baptisms, is fundamentally different from the sort of general recreational use of property that was considered in the Sport case, for example. 

[48]        The Crown’s next witness was Shari White, the principal of the Szt’uminus School located on Shell Beach Road, in the area between Church Road and Tideview Road.  The school offers education in grades 4 through 12 and there are currently about 140 students enrolled, 10 of whom are not First Nations children.  Some of the students are bussed in from Nanaimo and Chemainus.

[49]        Ms. White’s evidence similarly provides no assistance to the Crown.  That is true for at least two reasons. 

[50]        First, Ms. White testified that she could not say whether any buses that transported children to and from the Szt’uminus School actually use Church Road.  As I have already noted, the school is located on Shell Beach Road.  It would be perfectly possible to travel to and from the school by means of Shell Beach Road or Tideview Road, without ever entering onto Church Road.  There is no question that Church Road provides a somewhat more direct route to the north than any of the other options, but in my view it would be purely speculative to conclude that the school buses must therefore use that route.

[51]        Ms. White’s evidence is also subject to the same essential shortcoming as Ms. Teo’s testimony in terms of its support for the Crown’s position.  Ms. White testified that the curriculum of the Stz’uminus School focuses to a considerable extent on the teaching of First Nations culture, language and history.  Even if attention is paid to other topics which have no specific First Nations content - as I am sure must be true - it is difficult to imagine that any significant portion of the students have enrolled there for reasons unrelated to its First Nations context.  I am therefore of the view that the students’ use of the property must be considered to be essentially incidental to First Nations ownership of the land, rather than “for a purpose of their own”, to again borrow the phrasing from the Joe case.

[52]        The Crown’s next witness was Constable Fulford, who was directed to focus his testimony specifically on his observations concerning the vehicular use of Church Road.  Constable Fulford was well qualified to provide such testimony, as he has been stationed at the Ladysmith RCMP detachment for the past 6 ½ years and has been the detachment’s liaison officer with the Stz’uminus Band for the past six months.  He currently has an office at the health centre located on Shell Beach Road, near to the intersection of that road with Church Road.  He testified that he now spends most of his working hours on the reserve lands.

[53]        Constable Fulford described Church Road as being busy with vehicular traffic at times, especially in the morning hours.  He testified that those who used the roads were “mainly locals”, but also included delivery trucks and other commercial vehicles.  He said that he recently saw a motor home on the road as well as a couple of motorcycles.

[54]        In some respects, I found Constable Fulford’s evidence to be frustratingly ambiguous and unhelpful.  The term “mainly locals”, by itself, is singularly unhelpful.  Also, the reference to “delivery trucks and other commercial vehicles” may indicate nothing more than the presence of vehicles providing supplies or services to those living on the reserve lands, on or near Church Road itself.  The use of the road for those purposes could only be described as incidental to First Nations ownership of the land, and not proof of the “passage of vehicles” by the “general public”.  Also, the reference to isolated examples of a motor home or a motorcycle on the road are not helpful at all for reasons expressed by Millward, Co. Ct. J. in the Canute case.

[55]        Eventually, however, the police officer did provide evidence which directly supported the Crown’s position that Church Road is a “highway”.  He testified that residents of the roughly two dozen homes in the Fairtide community used Church Road as the most direct route between their homes and places to the north such as Yellow Point and Nanaimo.  He clarified his earlier testimony by saying that when he referred to “locals” he meant to include those in the Fairtide area.

[56]        Constable Fulford went on to note that the Oyster Bay Volunteer Fire Department, which serves the Fairtide development, is located to the north of the reserve lands, on Yellow Point Road.  While he could not say specifically that he had ever seen fire department vehicles on Church Road, he did point out that Church Road would provide the fastest route “by far”. 

[57]        Constable Fulford also pointed out that those who came to visit the Yellow Point tourist area to the north of the reserve lands would view Church Road as a good route to travel for recreational exploration, since it is a through road allowing access to coastal recreational locations on non-reserve lands, such as Elliott Beach Park, and access to points further to the south such as Chemainus and Duncan. 

[58]        In my view, the later portions of Constable Fulford’s evidence show clearly that Church Road is widely used by members of the general public for “purposes of their own”, rather than for purposes incidental to First Nations ownership of the surrounding property.  Nonetheless, I must acknowledge that I felt uncomfortable reaching a conclusion on this aspect of the matter without taking into account the effect of the road signage on the reserve lands, and on Church Road in particular.

[59]        On full consideration, however, I have concluded that the presence of the signs advising motorists that they are about to trespass on First Nations territory is not conclusive in this case, any more than the theoretical requirement for motorists to obtain travel permits was determinative of the outcome in the Bonneau case.  I have reached that conclusion for several reasons.

[60]        First, it seems to me that the First Nations community has been in the habit of treating road signage on the reserve lands in a most casual fashion.  At the intersection of Church Road and Shell Beach Road, very close to the “no trespassing” sign, is a second sign which states that Church Road is a thoroughfare from which there is no exit.  That is manifestly inaccurate, since Church Road gives access to Tideview Road and ultimately to the northern exit from the reserve lands.  Richard Wilson, who is the co-ordinator of capital projects for the Stz’uminus First Nation and takes responsibility for road signage on the reserve lands, was asked about the “no exit” sign during the course of his testimony.  He frankly conceded that the sign was inaccurate and should have been taken down.

[61]        The present situation regarding the “no trespassing” signs provides a further illustration of the casual approach to road signage on the reserve lands.  According to Mr. Wilson, the “no trespassing” signs were removed in December 2017.  The frame for the sign remained in place on the date of trial, months after the removal of the original sign,  but Mr. Wilson testified that the appropriate authorities have “not yet got around” to putting up a replacement.

[62]        I think it is also noteworthy that Mr. Wilson, who has been in his present position for about four years, could not recall a single example of the Band taking steps to enforce the apparent trespassing ban on Church Road or on any other roadway on the reserve lands.  I got the distinct impression that there was no enforcement mechanism in place, although I must concede that Mr. Wilson did not actually say that.

[63]        The evidence which has been presented concerning the “no trespassing” signs leads me to conclude that the signage is merely indicative of an intention to prevent the passage of vehicles through the reserve lands and along Church Road in particular, at least at the time that the signs were posted.  It is to be noted that the Motor Vehicle Act definition must be interpreted such that a roadway can gain highway status through usage, whatever the original intention may have been.  I have no evidence about when the “no trespassing” signs were put in place in this case.  The continued existence of the signage on April 3, 2017 says little if anything, however, about the actual usage of Church Road by that time.  Indeed, the evidence of Constable Fulford leads me to the inescapable conclusion that by April 3, 2017 the signage had essentially become irrelevant.

[64]        In the result, I have concluded that the evidence before me does demonstrate beyond reasonable doubt that Church Road was properly categorized as a “highway” at the time relevant to this case. 

[65]        It follows from the above analysis that Constable Dirnback was entitled to initiate a prosecution against Roxanne Seymour for driving while prohibited on a highway, as he did on the evening of April 3, 2017.  The remaining question which then naturally arises  is whether the Defendant obstructed Constable Dirnback in his attempt to impound the vehicle which Ms. Seymour was observed to be driving.  Strictly speaking it may not be necessary to answer that question, in view of my earlier conclusion that the Defendant is in any event guilty of the offence of obstruction for his actions in response to Constable Dirnback’s legitimate attempt to arrest him for assault.  In the interests of fullness, however, I will address the question briefly now.

[66]        I have no doubt that the Defendant did obstruct Constable Dirnback’s lawful attempt to impound the vehicle, largely for the reasons that I have already expressed.  The Defendant arrived on the scene in no mood for reasoned discussion.  He believed that the police officer lacked the authority to take possession of the vehicle and he simply proceeded to assert his own right to remove the vehicle from the scene.  In short order, his behaviour escalated to the point where he openly challenged the police officer’s authority, making physical contact with him.  There is no need for me to repeat once more all that happened thereafter.  Suffice to say that the entire sequence of events which the Defendant set in motion can properly be viewed as an obstruction of the officer’s attempt to impound the vehicle.  The Defendant’s response to the arrest, obstructive in itself, was merely a part of the broader scenario.

[67]        I find the Defendant guilty as charged.