Cursing the cops was not a crime

A man convicted of “cause public disturbance” for yelling obscenities at police has been acquitted on appeal. In a recent ruling, the Ontario Court of Appeal reaffirmed that merely mouthing off at police is not an offence.

The appeal was filed by Mr. Kukemueller who showered police with expletives when they entered onto his property at the town of Buckhorn for an investigation in July 2011. Police were there at the request of firefighters, who had been called to put out a car fire.

Girlfriend, then father, charged

Police discovered that Mr. Kukemueller’s girlfriend had crashed the car into a tree and arrested her for dangerous driving. Mr. Kukemuller got upset and began “yelling and swearing” at them. A little later his father arrived driving an off-road vehicle and he too was arrested (for impaired driving). Mr. Kukemuller went through the roof, launching into a “loud, profane and angry tirade” against police. “About 22 people, including family members, friends, firefighters and police officers, were present,” the court observed. He was arrested and charged with causing a disturbance.

Behaviour “made things worse”

The trial judge convicted him as she found that 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.” His behaviour, she found, “made things worse.” (Curiously, at trial, as on the appeal to the Court of Appeal, Mr. Kukemueller was represented by his father.)

The Criminal Code, s. 175(1)(a) provides that everyone commits an offence 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 is no doubt that Mr. Kukemueller was shouting, swearing and using insulting and obscene language. “The question,” however, is whether by doing so, he “caused a disturbance in or near a public place.”

Interference with ordinary use of a place

In concluding that he had not caused a disturbance, the court relied on a 1992 ruling of the Supreme Court of Canada, R. v. Lohnes. Supreme Court Justice Beverly McLachlin, writing for a unanimous court, held in Lohnes that for a disturbance to be made out, the actions of the accused must interfere “with the ordinary and customary use by the public of the place in question.” Disturbance, in this context, “involves more than mere mental or emotional annoyance or disruption.” 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.”

An interpretation of the law based upon an interference with the use of a public place rather than mental or emotional upset achieves a “balance between the individual interest in liberty and the public interest in going about its affairs in peace and tranquility,” Justice McLachlin held.

As there was no evidence that Mr. Kukemueller’s actions interfered with the public’s normal activities or with the ordinary and customary use by the public of the place in question he was entitled to an acquittal, the Court of Appeal held.

Yelling obscenities not condoned

“While I certainly do not condone yelling obscenities at the police,” the Court of Appeal said, “the issue for this court is not whether the conduct of the appellant was obnoxious or deplorable but whether it was criminal.”

(The charge against Mr. Kukemueller’s girlfriend was ultimately stayed and the charges against his father were dismissed.)