Articles 175 du Code criminel (Tapage)

De Wiki des arrêté·es
Aller à : Navigation, rechercher

R. v Lohnes

R. v. Lohnes, 1992 1 SCR 167 (CanLII)

Décision de la Cour suprême concernant la définition du mot "tapage".

R. v. Stewart, 2000 (Article 129, entrave d'un agent de la paix en exercise de ses fonctions et Article 175, tapage... indirectement, l'article 1 du Règlement P-1 à Montréal (RRVM c. P-1 Article 1)

R. v. Stewart, 2000 CanLII 2941 (MB PC)

Décision de la Cour provincial de Manitoba concernant l'article 129 du Code criminel, « entrave contre en agent de la paix » et l'article 175 du code criminel, tapage...

Un agent de la paix qui fait un erreur de droit n'agit pas en execution de ses fonctions et ainsi une arrestation portée en raison de cette erreur est illégale. D'ailleurs, une personne ne peut pas se trouver coupable en vertu des articles 129 ou 270 du code criminel. Aussi, chanter une chanson qui critique la police sur la place public ne constitue pas l'infraction de tapage.

Aussi, on a besoin de preuve d'entrave de pietons pour se faire trouver coupable de quoique infraction dont un élement essentiel est l'entrave de pietons.

Passages pertinents :

[12] Apparently registering their displeasure with the day’s events and the role of the police in it, they began to sing their own version of the nursery song “Old MacDonald Had a Farm”. Their version was not particularly imaginative. They sang that “ . . . on this farm he had some fucking pigs.” Their version found favour with some passers by and within a very short time 15-20 people gathered in front of the street musicians to join in the chorus. Occasionally the musicians and their chorus substituted the words “fascist pigs” for “fucking pigs”. The same lyrics continued, and the crowd sang or chanted along. Sometimes the chant was “pigs, pigs”. The sidewalk was about 8-10 feet in width, and the gathered crowd filled the sidewalk area.

[13] The Officers got out of their car and asked the musicians to stop singing and playing their guitars and to move along. While they had no particular difficulty getting through the crowd to speak to the musicians, their requests that the musicians cease and desist were ignored. The offensive lyrics continued.

[14] The officers then immediately arrested the accused and his companion for causing a disturbance, seized their guitars and put them in the trunk, and placed the two street musicians in the cruiser car after a cursory pat down search.

[39] Thus, something more than the mere use of abusive language is generally required to create a disturbance. Case law supports the proposition that abusive comments shouted at police (or anyone else) do not in themselves constitute the offence of cause disturbance. See for example R v. Peters (1982) 1982 CanLII 422 (BC CA), 65 C.C.C. (2d) 83 (B.C.C.A.), and R. v. Eyre (1972), 10 C.C.C. (2d) 236 (B.C.S.C.)

[41] In the context of the scenario before the court, the Crown argued that the disturbance created in the case at bar was the obstruction of the sidewalk. The Crown argued that the need to put an end to this obstruction justified the arrest. When pressed, the Crown took the position that had the musicians been singing “O Canada” rather that the offensive lyrics, an arrest would have been equally justified.

[42] It must be remembered that Officer Koniuck, one of the two arresting officers said she did not see anyone being impeded. Officer Evans did state that he observed some pedestrians who had to step around the gathered crowd. The focus of his concern, however, was clearly the content of the offensive lyrics, and in particular the use of the “f” word. As noted above, he stated his belief, in effect, that swearing simpliciter, in a public place, constitutes the offence of cause disturbance. He stated unequivocally that he would not have arrested the accused if the musicians had been singing their “protest song” without using the swear word. This is evidence that any sidewalk obstruction was minimal and insignificant, which would explain why it went unnoticed by Officer Koniuck. In addition, if the real concern was the obstruction of the sidewalk, one would think the officers would have at least brought this to the attention of the accused and the crowd, and endeavoured to get them to rearrange themselves so as to allow pedestrians clear passage. Rather, the officers simply told the musicians to “stop singing”.

[43] Moreover, the officers appear to be mistaken in their understanding of the nature of the offence of cause disturbance – in particular the requirement for an externally manifested disturbance. If a proper appreciation of its elements is lacking, how could the officers come to a proper subjective determination that the offence was “apparently” being committed?

[44] In any event, I find that obstruction must be significant enough to block or substantially hamper other persons in getting from one place to another before it attracts penal consequences under s. 175. There was no basis for a reasonable person to conclude that this was the situation in the case before me.

[45] I find that the arrest was unlawful. While there was evidence of shouting and swearing, a reasonable person in the position of these officers could not reach the conclusion that there was a reasonably foreseeable, unlawful discernible disturbance which resulted from this conduct.