COURT OF APPEAL FOR ONTARIO
Feldman, Lang and LaForme JJ.A.
Her Majesty the Queen
Bradley Peter Swinkels
Jason Voss, Community Legal Services for the applicant/appellant
John Patton, for the respondent
Heard: September 22, 2010 (in writing)
On appeal from the decision of the summary conviction appeal court dated October 26, 2009 by Justice K. A. Gorman of the Superior Court of Justice dismissing the appeal from the conviction entered on March 5, 2009 by Justice E. J. McGrath of the Ontario Court of Justice.
H. S. LaForme J.A. :
 On June 14, 2008, Bradley Swinkels was charged with the offence of disturbing the peace through the use of obscene language pursuant to s. 175(1)(a)(i) of the Criminal Code. On March 5, 2009 he was convicted of the offence as charged in the Ontario Court of Justice and subsequently sentenced to three days in custody. The reasons of the trial judge are brief.
 Mr. Swinkels’ summary conviction appeal was heard in the Superior Court of Justice on October 26, 2009 and, in even briefer reasons, the appeal judge dismissed the appeal. On November 19, 2009 Mr. Swinkels filed an application for leave to appeal to this court pursuant to s. 839 and s. 688(3) of the Criminal Code. The leave to appeal application and appeal were in writing.
 The circumstances that gave rise to Mr. Swinkels being charged and subsequently convicted of disturbing the peace are not unusual. The circumstances certainly appear to have been familiar to both the trial judge and the police officers involved.
 In the early morning hours of Saturday, June 14, 2008, constables Paine and Kukolj were patrolling downtown London, Ontario just as the bars were closing. While driving they heard someone yell obscenities from within a large crowd of people outside a bar. The number of people was estimated at between 15 and 20.
 The officers pulled over to investigate, and as they exited their vehicle Mr. Swinkels came quickly towards Constable Paine yelling further obscenities. Both of Mr. Swinkels’ arms were straight out and his middle fingers were up. Constable Paine believed that Mr. Swinkels was about to assault or grab him, so he grabbed Mr. Swinkels’ shirt, pulled him to the ground, and arrested him for causing a disturbance.
The trial judge
 The trial judge began his analysis of this case by suggesting that the proper interpretation of the law is found in R. v. Lohnes,  1 S.C.R. 167. He did so with these comments:
It seems to me defence counsel’s reference to R. v. Lohnes is a broader interpretation of the law; that an external manifested disturbance is necessary. Remarkably, I find that there was one here, caused by her client. For reasons I hope to expand upon, I am satisfied there was a disturbance and that several members of the public were disturbed.
 The trial judge held that on all the evidence, and “in light of the dicta of the Supreme Court of Canada … in Lohnes”, Mr. Swinkels “caused an external manifested disturbance that, because of the obscenity associated with it, the case has been proved beyond a reasonable doubt.” I would note here that Lohnes is the correct authority for the trial judge to have relied upon.
The summary conviction appeal judge
 The appeal judge found that the trial judge had committed “no error of fact or law” and dismissed the appeal. His reasons for this conclusion consist of two brief paragraphs in a five paragraph decision: paragraph one simply recognized that this was a summary conviction appeal; paragraph two thanked counsel for their “very able submissions”; and paragraph five stated that “the appeal is dismissed.” His analysis in the remaining two paragraphs is very brief:
 In particular, I reviewed the evidence of P.C. Jonathon Paine (p. 22, lines 15-32). The officer clearly testified that a large group of people had congregated on the west side of Richmond Street near the entrance of Barney’s patio. He further testified that it was then he heard a male’s voice (now known to be the Appellant) coming from inside the group of about 15 or 20 people yelling obscenities.
 In conclusion, I find that the Honourable Justice E.J. McGrath correctly concluded that the Appellant had disturbed the public peace, and accordingly convicted him.
 Mr. Swinkels was charged with causing a public disturbance by using obscene language, contrary to s. 175(1)(a)(i) of the Criminal Code. It reads:
175. (1) Every one who (a) 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 … is guilty of an offence punishable on summary conviction.
 The actus reus for this offence has two components. First, the accused must have engaged in one of the enumerated acts, which include “screaming, shouting, swearing, or using insulting or obscene language.” Second, the accused’s actions must have caused “an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public”: Lohnes, at p. 181. Or, as the court put it another way, the test would be satisfied if actions by an accused involved “violent noise or confusion disrupting the tranquillity of those using the area in question”: p. 179.
 Mr. Swinkels concedes that the Crown proved the first element beyond a reasonable doubt. However, he argues that the Crown failed to prove that his conduct resulted in an “externally manifested disturbance”. He says that the evidence fails to prove that his actions interfered with the ordinary and customary use by the public of the place in question. He notes further that what is the ordinary and customary use of public space is dependent in part on the time and way in which the place is used. I agree.
 For the following reasons, I grant leave to appeal. I conclude that the trial judge was in error in applying the test required to satisfy the offence Mr. Swinkels was convicted of. In turn, the appeal judge was in error when he upheld the decision and dismissed Mr. Swinkels’ appeal. Furthermore, the remedy I propose is that the conviction be set aside and an acquittal entered.
The leave application
 Mr. Swinkels’ appeal is from the decision of the summary conviction appeal court and not the trial decision. Under s. 839 of the Criminal Code, in order to obtain leave to appeal Mr. Swinkels must demonstrate some exceptional circumstances justifying a further appeal to this court. This is decided by an examination of two factors: (1) the significance of the legal issue raised to the general administration of justice, and (2) the merits of the proposed appeal: R. v. R. (R.) (2008), 90 O.R. (3d) 641, at para. 32 (Ont. C.A.).
 Mr. Swinkels does not specifically address the issue of leave to appeal in his written materials; rather, he goes directly to the grounds of appeal. Essentially, he forcefully argues that there was no evidence of a “disturbance” to satisfy the offence and that both the trial judge and appeal judge erred in finding that the offence had been proven. Further, Mr. Swinkels contends that both judges applied the wrong test in the interpretation of s. 175(1)(a)(i).
 The essence of Mr. Swinkels’ application and appeal is a request that this court reconsider – for the third time – his case, which involves a settled area of law. Indeed, the trial judge expressly adverted to, and believed he had applied, the correct legal test. The appeal judge, in turn, simply agreed with the trial judge’s conclusion. In the result, Mr. Swinkels’ case does not involve issues that go beyond the four corners of his case and there is no general significance of the legal issue raised to the general administration of justice. Mr. Swinkels’ application for leave to appeal, when considered under the first factor, therefore, must fail. However, I do find that there are strong merits to the appeal.
 In para. 37 of R. (R.) this court holds that: “where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.” I think that principle applies in this case because, while the legal issues involved are settled, they were misapprehended by both the trial and summary conviction appeal judges.
 Accordingly, I believe leave to appeal should be granted, even though Mr. Swinkels is not facing a significant deprivation of his liberty.
 Generally speaking, the trial jurisprudence has held that shouting obscenities at police officers is not a disturbance in and of itself: see for example, R. v. Wolgram, (1975), 29 C.C.C. (2d) 536 (B.C.S.C.); R. v. Peters, (1982), 65 C.C.C. (2d) 83 (B.C.C.A.). In a recent Ontario case, R. v. Osbourne, 2008 ONCJ 134, two police officers questioned two individuals by the roadside. The defendant, Osbourne, refused to answer the officers’ questions, shouted abuse at them, and walked away. The following reasons of the trial judge at paras. 21 and 22 in Osbourne provide some helpful guidance:
[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence. Equally, the existence of emotional disturbance, such as Constable Correa’s belief that the defendant’s language was vulgar, aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).
I accept that by the time of Mr. Osbourne’s arrest a crowd of between 10 and 15 people had gathered outside of the strip plaza. Some of these people were voicing anti-police sentiments. Yet, based on the evidence of Constable Correa, I find that people did not begin to come out of the plaza and do more than briefly observe the situation until after the defendant had been unlawfully detained and cautioned for causing a disturbance when there was no disruption of the public peace. But for the actions of the police in disregarding his rights, Mr. Osbourne would not have been yelling and swearing. I find that any disturbance of the public was attributable to the conduct of the police.
 According to Lohnes, at p. 180, “the test for a disturbance in or near a public place under s. 175(1)(a) should permit the court to weigh the degree and intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time.” The court also observes:
[D]escriptions of conduct without more may be inadequate; the context in which the activity takes place must be considered so that the countervailing interests can be duly weighed. The lawful jangling of the street musician at an urban intersection at noon may become criminal if conducted outside a citizen’s bedroom window at three o’clock in the morning: p. 175.
 As Lohnes notes at p. 178-179, the objective of 175(1)(a) “was 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.”
 The conduct complained of in our appeal was Mr. Swinkels’ yelling obscenities at the police; the degree of peace expected was that of a large crowd gathering around a bar at closing time. Constable Paine described the scene as “a normal bar type crowd”, and noted that the patio of the bar in question was always “packed full of very intoxicated” people.
 The trial judge in our appeal discussed the volatility of downtown London for bars around closing time, pointing out that a large percentage of the populace would have been intoxicated. He then stated:
And so it is in these circumstances that his action, in my opinion, and the vocal level of them with five to ten people gathering around, I do not find that they only gathered when the arrest was executed. I find that they gathered around in response to his interaction before that.
 The evidence at trial was that the downtown core of London, Ontario, is extremely busy when the bars close. Constable Kukolj testified that “there were a large number of people up and down Richmond Street.” He also testified that there was “ongoing yelling” in the area. Officer Paine testified that “[i]t was a warm summer’s night and the streets were just packed.”
 The “packed” and noisy streets of downtown London, just after the closing of the bars forms the context against which the disruptiveness of the appellant’s conduct must be measured. The “nature of the peace” that could be expected at this time and place is not the same as what one would expect in the library, or at the super market. While Mr. Swinkels’ behaviour was loud and raucous, its “disruptiveness” is dependent on the surroundings.
 In this context, and based on the evidence noted above, it appears unlikely that the presence of a crowd around or near Mr. Swinkels was a disturbance, as contemplated by Lohnes. While it is not open for this court to interfere with the factual findings of the trial judge, I do take issue with his finding that Mr. Swinkels caused the crowd to gather. I do so because this finding is at odds with the evidence of the police officers.
 First, Constable Paine’s testimony was that he saw “a really large group of people on the west side near the Barney’s entrance area” and that it was a “normal type bar crowd.” The remainder of his testimony was that Mr. Swinkels was in the midst of that crowd when he shouted obscenities. In fact, Constable Paine testified that Mr. Swinkels’ conduct did not cause a fight or upset the others around him. This was because, in his words, the officers “dealt with the situation” prior to a disturbance arising.
 Second, while a crowd did gather around the officers, this happened only after the police engaged Mr. Swinkels and during the arrest. Once the officers had stopped and exited their vehicle, Constable Kukolj testified that “[a]t that point Constable Paine was trying to effect the arrest. Given those circumstances, he clearly brought upon a large group of onlookers.”
 I agree with the holding in Osbourne that a “public disturbance” requires more than a crowd observing – or even shouting anti-police sentiments at – police officers in the course of arrest. In the words of the trial judge in that case, at para. 21:
[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence. Equally, the existence of emotional disturbance, such as Constable Correa’s belief that the defendant’s language was vulgar. aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).
 This is consistent with the appellate jurisprudence: in order to satisfy the actus reus of causing a public disturbance by using obscene language, the offending language must cause an externally manifested disturbance. That is not the evidence here. In the words of the only two witnesses, the “large group of onlookers” congregated only after the police had begun to effect the arrest.
 There is little doubt that the police found themselves in a somewhat volatile situation. However, based on their evidence at trial and the dearth of analysis provided by the trial judge and summary conviction appeal judge, I conclude that Mr. Swinkels was convicted erroneously.
 The trial judge erred in his application of the Lohnes test. The appeal judge in turn fell into error when he upheld the trial judge’s decision, apparently relying on his misinterpretation and misapplication of the law. Accordingly, I would allow the appeal.
 The evidence, I find, fails to show that Mr. Swinkels’ actions caused “an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public”: Lohnes, at p. 181. Given this, I would allow the appeal, set aside the conviction, and enter a verdict of acquittal.
“H.S. LaForme J.A.”
“I agree K. Feldman J.A.”
 Lang J.A. (Dissenting):
 In my view, the trial judge was alert to the principles set out in R. v. Lohnes,  1 S.C.R. 167. He recognized that “an external manifested disturbance is necessary” to found the offence of causing a disturbance by using obscene language, contrary to s. 175(1)(a)(i) of the Criminal Code. While acknowledging the right of the appellant to critique the police in a free and democratic society, the trial judge concluded in this case that the Crown had established such a manifested disturbance after considering the “location of [the appellant’s] remarks and the volume of his remarks” and putting them in the context of the case, including the nature, degree of intoxication and volatility of the crowd and the time and circumstances of the event.
 Only two witnesses testified: the two police officers at the scene. Constable Paine testified that, prior to Mr. Swinkels’ arrest, the crowd was yelling and that Mr. Swinkels “wasn’t walking in the middle of the pack. They had sort of fallen in behind him”. He further testified that the appellant was “charging towards me as I exited the car” and one person in the crowd thrust a cell phone in Constable Paine’s face. Constable Paine testified that the crowd was “surrounding us with sort of my back toward the van” and that Mr. Swinkels’ utterances “seemed to fire up the crowd that they were all of a sudden turning on – towards Constable Kukolj and myself for being involved in this”.
 My colleague observes that, in cross-examination, Constable Paine acknowledged that the appellant did not upset the crowd to the extent of causing a fight and that the appellant was apprehended before the matter escalated further. However, this acknowledgment did not detract from Constable Paine’s other evidence that the appellant’s conduct fired up the crowd.
 The trial judge was also alive to the issue of whether the disturbance was caused by the appellant’s actions or resulted from the police action in arresting the appellant. He concluded that the gathering was not in reaction to the appellant’s subsequent arrest. He specifically stated “I do not find that they [the crowd] only gathered around when the arrest was executed. I find that they gathered around in response to his [Mr. Swinkels’] interaction before that”.
 While the trial judge’s reasons could have been more detailed, the trial judge must be taken to have been alive to the evidence in the context of this two-hour trial. He was entitled to accept the evidence that supported the inference that Mr. Swinkels caused an “external manifested disturbance”. In my view, since the trial judge properly identified and applied the law and made no reviewable error of fact, I would agree with the result reached by the summary conviction appeal judge and dismiss the appeal. If I had been able to agree with LaForme J.A. that the trial judge erred by misinterpreting and misapplying the law, I would have ordered a new trial rather than entering an acquittal. I would also not have granted leave to appeal.
“KF” “S. Lang J.A.”
“NOV -4 2010”