A Moose Jaw Provincial Court judge is reserving his decision in the case of a woman who allegedly spat on two police officers and a Moose Jaw Police Service communications employee.
On day two of the assault trial on Tuesday, Judge Daryl Rayner ruled on the voir dire in the case, evidence was entered and closing arguments were given. Rayner reserved his decision for Jan. 26 at 11 a.m. at Moose Jaw Provincial Court.
The defendant, Leah Jacobson, is charged with assaulting a peace officer Const. Josh MacNaughton, assaulting a peace officer Const. Jim Biniaris and common assault on Mary Kaye MacDonald.
Rayner ruled in the voir dire that no chartered rights were violated in relation to the charges. All of the Crown’s evidence during the voir dire was carried over to the trial. The defendant’s testimony from the voir dire was not carried over to the trial except for photos of injuries Jacobson sustained during her dealings with the Moose Jaw Police Service.
At approximately 6:44 p.m. on Nov. 25, 2019, the Moose Jaw Police Service got a call asking to assist EMS with an intoxicated woman that was passed out on a front lawn on the 400 block of Hochelaga Street East.
Const. Josh MacNaughton was the first to attend the scene and found the defendant in the back of the ambulance angry, combative and intoxicated. Const. Casey Lea was second to the scene and notified Jacobson that she was under arrest of public intoxication.
A scuffle took place as Lea and MacNaughton attempted to handcuff her. According to his testimony, while Jacobson was on the ground, she leaned back and allegedly spit in MacNaughton's face and mouth.
“I was surprised by it as well. I didn’t think it could happen,” MacNaughton said in his testimony.
The testimony also had Const. Jim Biniaris at the scene.
Jacobson was arrested for assaulting a peace officer and was transported to the Moose Jaw Police Service. During the booking process, Jacobson's pants were falling down. The video showed Lea attempting to help pull them up when she began kicking and she kicked Biniaris in the leg. The video shown in court showed that Jacobson was wearing a "spit hood" at the time of the booking. Lea said the use of a “spit hood” is not common.
“That was one of the first instances I’ve seen with a spit hood,” he said.
Video evidence then showed her being taken into the detox cell to be searched. Communications officer MacDonald was called in to conduct the search as there were on female officers on duty at the time.
During the search, a video showed Jacobson continuing to resist to the point she was able to get out of the spit hood and spit in Biniaris' eye and MacDonald's arm. At that point, the officers attending took her to the ground to finish the search without spitting on anyone else.
Biniaris and MacNaughton attended the hospital for blood tests to check for communicable diseases.
Jacobson was taken to the hospital by EMS on an order from Sgt. Taylor Elder in the hopes of getting a voluntary blood test for communicable diseases as well. MacNaughton and Biniaris both testified that they were called into Jacobson's room by hospital staff because she was not cooperating.
"We were sitting in the room and we could hear yelling and screaming," MacNaughton testified.
When the officers arrived in the hospital room, they found Jacobson out of her handcuffs. Elder testified that he was in the hospital room as well during this time.
When Biniaris reach over to handcuff her back to the bed, it was alleged that Jacobsen put her mouth on his forearm in an attempt to bite him. In response, Biniaris thrust his forearm down on Jacobson in which she said she received injuries due to his actions.
Later that evening, testimony showed that Jacobson was more cooperative and was taken back to the hospital by Const. Jeremy Anderson and Lea to take a voluntary blood test.
In her closing arguments, Crown prosecutor Cynthia Alexander said the court is dealing with three charges: assault of the peace officer on MacNaughton, assault of a peace officer on Biniaris and common assault on MacDonald.
She said the evidence shows that the assault on MacNaughton was the spitting at the scene on Hochelaga Street.
However, she felt the assault on Biniaris is more complicated as there are three instances where he allegedly could have been assaulted. The first was getting kicked at the booking desk. He was then spat on in the detox cell and the third was the attempted bite on his forearm at the hospital.
Alexander noted that Jacobson could be found guilty of the lesser offence of common assault if it is found that the officers were not lawfully executing their duty, putting into question whether Jacobson was lawfully arrested for public intoxication as it is not a criminal offence, but a province statute under the Liquor and Gaming Regulations Act.
As for the common assault on MacDonald, Alexander said it was difficult to determine who Jacobson intended to spit on in the detox cell as the spit hit both Biniaris and MacDonald. She noted that, under common assault, there only needs to be a general intent.
In her closing arguments, Jacobson noted that when she was found she was dressed warmly and wasn't a risk to herself or anyone else and it didn’t warrant being arrested for public intoxication.
"I was dressed very appropriately," she told the court.
Jacobson said she was not informed at the time she was arrested for public intoxication that it was under the Alcohol and Gaming Regulations Act and was not a criminal offence. She did not deny the fact she was intoxicated that night.
"It’s apparent I was not acting like a rational human being," she said.
She argued that there were inconsistencies between the police officers’ testimonies and their reports and that officers could not recall key details from that night and the officers minimized their aggressive behaviour while embellishing her behaviour.