2009 BCSC 45 R. v. Brienza

Before: The Honourable Mr. Justice Johnston

Reasons for Judgment

on a Summary Conviction Appeal

Counsel for the Respondent:	A. Clarke
In person:	V. Brienza
Date and Place of Trial/Hearing:	20081107
	Vancouver, B.C.

[1] Mr. Brienza appeals his conviction on a charge of assaulting a peace officer under s. 270(1)(a) of the Criminal Code, R.S.C. 1985, C-46. He was convicted after a six day trial by the Honourable Judge Baird Ellan, whose reasons can be found at 2007 BCPC 312, [2007] B.C.W.L.D. 6938.

[2] Mr. Brienza was represented at trial. He filed his own notice of appeal, and had an agent draft a written "statement of argument" on his behalf.

[3] The agent, Mr. Villella, appeared to argue the appeal. He was not permitted to do so and after a short adjournment Mr. Brienza attended to speak to his own appeal. Mr. Brienza adopted his agent's written statement of argument, which he supplemented with brief oral submissions.

BACKGROUND

[4] On April 14, 2005, someone phoned 911 in Vancouver to report that three males and a female sex trade worker were in a Jeep vehicle and the vehicle was rocking. Sergeant Eely, of the Vancouver Police, was dispatched to what the dispatcher referred to as a "prostitution call".

[5] Sergeant Eely was told that all occupants, the sex trade worker and the three males, had left the Jeep and walked away from it. When he arrived at the location, the 911 caller met him on the street, pointed to a vehicle that was driving away, and told him that it was the Jeep in question.

[6] Sergeant Eely followed the Jeep and pulled it over. Mr. Brienza was a passenger in the rear seat. Sergeant Eely noticed signs of alcohol consumption on the driver. Mr. Brienza and the front seat passenger became verbally aggressive while Sergeant Eely was asking the driver for documents, so Sergeant Eely asked the driver to step out of the vehicle.

[7] While Sergeant Eely was dealing with the driver outside of the vehicle, Mr. Brienza and the front seat passenger got out of the vehicle and continued to object to Sergeant Eely having stopped the vehicle.

[8] Sergeant Eely noticed that Mr. Brienza was wearing an Hell's Angels T-shirt.

[9] Sergeant Eely radioed for other officers to attend as backup.

[10] Other officers arrived. Sergeant Eely asked Mr. Brienza to take his hands out of his jacket pockets more than once, and each time, Mr. Brienza either refused, or took his hands out and then immediately put them back in his pockets. Sergeant Eely tried to physically remove Mr. Brienza’s hands from his pockets, and Mr. Brienza was not co-operative.

[11] While Sergeant Eely was attempting to take Mr. Brienza's hands out of his pockets, the front seat passenger intervened, by bumping into Sergeant Eely. The passenger was arrested, initially for public intoxication, and then for assaulting Sergeant Eely.

[12] Mr. Brienza and the front seat passenger continued to verbally object to police actions.

[13] Sergeant Eely wanted to look inside the vehicle, either to ensure that the female sex trade worker was not still in the vehicle, or to search for weapons (his evidence varied on this point). Mr. Brienza objected to any search.

[14] One of the officers who arrived during these events was Sergeant Cherniwchan of the Vancouver Police. Shortly after the front seat passenger was arrested, Sergeant Eely asked Sergeant Cherniwchan to watch Mr. Brienza.

[15] Sergeant Eely announced that he was going to search the vehicle. Mr. Brienza continued to object and made as if to move toward Sergeant Eely. Sergeant Cherniwchan tried to restrain Mr. Brienza from moving toward Sergeant Eely and Sergeant Cherniwchan and Mr. Brienza became involved in a struggle. Mr. Brienza swung one or more blows toward Sergeant Cherniwchan but missed. Sergeant Eely attempted to use pepper spray on Mr. Brienza, without apparent success. Mr. Brienza was struck several times with a baton. At some point in this melee, Sergeant Eely said something to distract Sergeant Cherniwchan and while Sergeant Cherniwchan's attention was diverted, Mr. Brienza managed to successfully land a punch on Sergeant Cherniwchan's face.

[16] The above is a very brief summary of detailed findings of fact made by the trial judge.

[17] Mr. Brienza argues that the trial judge erred in finding that Sergeant Cherniwchan was acting in the execution of his duty, primarily because various rights guaranteed Mr. Brienza by the Charter (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11), were breached by one or more of the officers. The breaches complained of include:

(a) The right not to be arbitrarily detained under s. 9;

(b) The right to be free from unreasonable search under s. 8;

(d) The right to retain and instruct counsel without delay under s. 10(b).

[18] Mr. Brienza argues that the stop and the alleged investigation were part of a ruse to harass a member of the Hell's Angels, and also was part of an ongoing police investigation of the Hell's Angels, in pursuit of which the police and Crown counsel tampered with evidence.

[19] Mr. Brienza seeks disclosure of details of police involvement in ongoing investigations of the Hell's Angels, as well as any connection between the trial judge and ongoing police investigation of outlaw motorcycle gangs.

[20] That last application was withdrawn on the hearing of the appeal along with a request made in the statement of argument that the police be educated in how to more appropriately deal with the Hell's Angels.

[21] Crown counsel points out that no Charter relief was sought at the trial.

[22] If a reason were needed for refusing to hear an agent on an appeal such as this, the breadth of the issues raised on the appeal, together with the tenuous relevance of many of the arguments raised, should be sufficient.

[23] At the outset of the judgment, the trial judge stated the issues in this way:

[2] ... The issues are whether the Crown has established to the requisite standard of proof that the officers were engaged in the execution of their duty, and whether, if so, the accused or either of them assaulted the complainant officers. Specifically, in relation to whether the officers were in the execution of their duty, issues arise with respect to the legality and scope of the investigative detention of the accused, and credibility.

[24] The trial judge dealt with the vehicle stop, including evidence relevant to the stop, and then considered the legality of the stop. On the latter issue, the trial judge canvassed the authorities and it is not seriously suggested that her legal conclusions were in error.

[25] The trial judge then turned to the lawfulness of the continued detention of the Jeep occupants, starting with the evidence relevant to that issue, and followed by her analysis.

[26] The trial judge then turned to the lawfulness of the initial search of Mr. Brienza. She summarized the evidence relevant to that issue, and considered whether Mr. Brienza had been ordered out of the vehicle by Sergeant Eely, the effect of any delay in giving reasons for continued detention, and the scope of search powers following detention.

[27] The trial judge then analyzed the relevant evidence leading to the charge of assault against the front seat passenger who was convicted of assault of Sergeant Eely, before turning to the relevant evidence relating to the charge of assault against Mr. Brienza. The trial judge considered that evidence, dismissed a charge that Mr. Brienza had assaulted Sergeant Eely by deleting Sergeant Eely's name from the Information and convicted Mr. Brienza of assault on Sergeant Cherniwchan.

[28] I agree with counsel for the Crown that Mr. Brienza’s appeal essentially attacks the findings of fact made by the trial judge, or at most, the application of the law to the facts.

[29] Mr. Brienza must show palpable and overriding error on questions of fact. No serious attempt to do so has been made on this appeal. The principal attack from a factual point of view has been on the credibility of Sergeant Eely. Mr. Brienza, in his written argument, claims that Sergeant Eely perjured himself.

[30] The trial judge’s reasons demonstrate that she was alive to credibility problems in Sergeant Eely's evidence, including an attempt by him to resile from prior sworn testimony.

[31] With full awareness of the problems with Sergeant Eely's evidence, the trial judge concluded that he was in the lawful execution of his duty in stopping the vehicle, and then in attempting to search the vehicle.

[32] Sergeant Cherniwchan was attempting to prevent Mr. Brienza from interfering, in an aggressive manner, with Sergeant Eely's stated intention to search the vehicle when Mr. Brienza punched Sergeant Cherniwchan.

[33] There was ample evidence to support the facts upon which the trial judge drew those conclusions. The trial judge weighed the relevant evidence, gave reasons for her findings on credibility, and resolved apparent conflicts in the evidence. No palpable and overriding error has been demonstrated.

[34] I have not been shown any error in law made by the trial judge in her analysis of whether Sergeant Cherniwchan was in the execution of his duty when he was struck by Mr. Brienza. The trial judge properly identified the applicable legal principles, and was correct in her application of the law, including the impact of the Charter on any issues raised.

[35] The appeal is dismissed.

"R.T.C. Johnston, J."

The Honourable Mr. Justice Johnston

Citation:	*R. v. Brienza,*
	2009 BCSC 45