A Moose Jaw Provincial Court judge has found a woman guilty of assaulting two Moose Jaw Police Service officers and a civilian member of the police service.
Judge Daryl Rayner found that Leah Jacobson was guilty on Thursday of spitting on Const. Josh MacNaughton, kicking, spitting and attempting to bite Const. Jim Biniaris, and spitting on Moose Jaw Police Service communications officer Mary Kaye MacDonald on Nov. 25, 2019. Representing the Crown was Cynthia Alexander.
Jacobson, who was representing herself, was claiming that she was unlawfully arrested for public intoxication, the police used unnecessary force and testimonies were inconsistent at the trial held last week.
Rayner said there were inconsistencies but chalked it up to the fact the offence took place three years ago and memories can fade.
“Although there are inconsistencies, all of the Crown’s witnesses attempted to be honest and forthright about what took place,” Rayner said.
Rayner believed that on the night in question at around 7 p.m., the Moose Jaw Police Service received a call from EMS for an intoxicated individual lying on a front lawn on the 400 block of Hochelaga Street East.
MacNaughton was the first to arrive on the scene, followed by Const. Casey Lea. Soon after that, Biniaris also arrived at the scene.
Rayner believed Lea’s testimony that he found Jacobson in the back of the ambulance arguing with EMS staff.
The judge was satisfied that Jacobson was asked if they could take her to someone to care for her. Jacobson was not cooperative, according to Rayner and the testimony given, and began to walk away when Lea advised her that she was under arrest for public intoxication.
Under the Liquor and Gaming Act, Rayner said police have the right to arrest someone temporarily for public intoxication. Citing case law, he said public intoxication arrests are lawful if officers observe signs of intoxication and the person is a threat to harm themselves or others or there is no one who will take care of them.
Rayner ruled that the arrest was lawful as EMS had to be called because she was laying on a lawn in late November and didn’t cooperate when asked if police could take her to someone who would care for her.
“In my mind, police taking her into custody was for her own safety,” Rayner said in his decision.
MacNaughton and Lea each took one of her arms when her bus pass fell on the ground. Rayner said at that point Jacobson became more resistant to the point her glasses fell off. Lea released her arm when Rayner believes Jacobson spit in MacNaughton’s face with spit getting into his mouth and nose. Because of this, Rayner found Jacobson guilty of assaulting a peace officer against MacNaughton.
In his decision, Rayner said video evidence introduced at the trial showed that Jacobson continued to be abusive when being booked and kicked Biniaris in the leg while officers tried to help pull her pants up. A spit hood was also put on her to prevent her from spitting on any other officers.
Video evidence from the detox cell showed officers attempted to remove outer clothing to conduct a search. The police’s policy is that there should be only one layer of clothing on a prisoner when they are being searched. A civilian member of the police service, MacDonald, was called in because there were no female officers on duty to conduct the search.
During the struggle with officers, Jacobson was able to get the spit hood off and spit in Biniaris’ eye, while spit also landed on MacDonald’s arm and shirt.
Rayner said for a common assault, the intent of the spit does not affect the charge. He said the force was in an indirect manner and found her guilty of common assault on MacDonald.
Rayner did agree with Jacobson that after she spits, it appeared in the video that Biniaris made a fist and hit or attempted to hit Jacobson.
Jacobson had argued at the trial that she was taken to the hospital against her will. Testimony at the trial showed that, although Jacobson refused to take a blood test for communicable diseases and was taunting that she was going to leave them wondering, Sgt. Taylor Elder made the decision to take her to the hospital via EMS to see if a doctor could convince her to do a voluntary blood test.
“In my view, this was not inappropriate. Sgt. Elder was concerned about his fellow officers’ wellbeing,” Rayner ruled.
At the hospital, Rayner believed that Biniaris reached across Jacobson in an attempt to cuff her to the hospital bed when Jacobson put her open mouth around Biniaris’ arm in an attempt to bite him. She was unsuccessful as Biniaris landed two or three blows with his forearm.
Rayner was satisfied that Jacobson was likely not wearing shoes or socks and had to be dragged to the police vehicle to go back to the station. Jacobson entered photos of bruising as evidence, which Rayner believed happened during her encounter with the police.
Rayner ruled that the kick, spitting and attempted bite was a continuous assault on Biniaris while lawfully conducting his duty as a peace officer and found her guilty on the third charge.
Sentencing has been set for Tuesday, Feb. 7, at 1:30 p.m. at Moose Jaw Provincial Court. While sentencing submissions have not been given, Alexander indicated the Crown would be seeking jail time and a period of probation.