COURT OF APPEAL FOR ONTARIO
Sharpe J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent
and
Jason Nevill
Appellant
David Butt, for the appellant
Greg Skerkowski, for the respondent
Heard: October 18, 2013
ENDORSEMENT
1The appellant, a Barrie Police Service Constable, was convicted after trial in the Ontario Court of Justice of assault causing bodily harm, fabricating evidence and obstructing justice. He was sentenced to a total of one year’s imprisonment: six months on the assault causing bodily harm count; and six months on each of the other two counts, to be served concurrently with each other but consecutive to the sentence imposed on the bodily harm count.
2The appellant applies for release pending appeal against both conviction and sentence.
3He raises four grounds of appeal:
- The trial judge misapprehended the nature and effect of the uncontradicted expert evidence and accordingly erred in rejecting it;
- The trial judge erred in refusing to permit the expert to offer full commentary on crucial actions of the appellant;
- The trial judge erred in failing to fully address the lawful reasons offered by the appellant for arresting the complainant; and
- The trial judge erred in entering duplicitous convictions.
4The Crown resists the application for release pending appeal on the primary ground that the appeal is frivolous, and on the tertiary ground that it would be contrary to the public interest to release the appellant pending appeal.
Facts
5The incident giving rise to the charges against the appellant was set out in an agreed statement of facts. The appellant was called to investigate an incident at a shopping mall. The complainant was a member of a group of four individuals, one of whom had jumped on a bench and knocked down a Christmas ornament causing it to break. Two security guards found the complainant outside the mall. He indicated that he had lost his wallet and that he wanted to re-enter the mall to retrieve the wallet. He was told to wait for the police who had been called to investigate the vandalism incident.
6The security guards informed the appellant that the complainant was not the one who had broken the ornament. The complainant refused to identify the culprit to the appellant. After some discussion, a violent altercation ensued involving the appellant, the complainant and the two security guards. The complainant sustained significant injuries and was taken to the hospital for treatment. He was then taken to the police station where he was charged with assault with intent to resist arrest.
7The complainant’s counsel uncovered a video of the entire incident. The Crown reviewed the video, determined that there was no reasonable prospect of convicting the complainant and, following an independent investigation by the Ontario Provincial Police, the appellant was charged.
8The central issues at trial were whether the appellant had grounds to arrest the complainant and, if he did, whether he had used excessive force in effecting the arrest.
9The video was the critical piece of evidence at the trial. In his careful reasons for judgment, the trial judge found that the version of the incident recorded in the appellant’s notes and recounted in his evidence at trial was seriously at odds with what was revealed by the video. The trial judge made clear and strong findings of credibility adverse to the appellant
10I have reviewed the video. It reveals a sudden and violent attack by the appellant on the complainant. It shows the appellant inflicting numerous blows to the head and body of the complainant. It also reveals that after the complainant was removed from the scene, the appellant instructed the security officers to wash away a considerable volume of blood left on the ground as a result of the altercation.
11It is against that background that I proceed to assess whether the appellant has succeeded in demonstrating that the appeal is not frivolous and that he has arguable grounds to advance.
Analysis
(i) Is the appeal frivolous?
Ground 1. The trial judge misapprehended the nature and effect of the uncontradicted expert evidence and accordingly erred in rejecting it.
12The appellant called an expert witness who testified that the appellant’s conduct was consistent with police training. I pause to observe that I find the proposition that the appellant's conduct, as revealed by the video, could be consistent with police training to be extremely alarming.
13The Crown did not call any expert evidence although it had an expert present in court when the appellant's expert testified.
14The appellant submits that the trial judge erred in rejecting the expert evidence and that he should have applied something approaching a presumption of correctness, or exercised greater care in rejecting the expert evidence, particularly as the Crown failed to call its own evidence.
15I see no merit in this submission.
16First, I agree with the respondent that there is no presumption of correctness applicable to expert evidence and I see no merit in the contention that the trial judge was required to draw some inference from the fact that the Crown did not call the expert it had attend the trial.
17Second, the critical issues of whether there were grounds for arrest and whether the appellant used excessive force were questions of law for the trial judge and it was entirely open to the trial judge to reject the expert evidence as somehow determining those questions.
18Third, the trial judge specifically found that the expert’s evidence was in large part based upon the premise that this was a lawful arrest, a proposition the trial judge flatly rejected as being inconsistent with the facts as he found them. The trial judge also found that even if there were grounds for arrest, the force used by the appellant was excessive. That conclusion was inevitable in light of what is revealed by the video.
19I see no arguable ground of appeal in the manner in which the trial judge dealt with the expert witness called by the appellant.
Ground 2. The trial judge erred in refusing to permit the expert to offer full commentary on crucial actions of the appellant.
20The appellant admitted in his evidence that he had not adopted the physical stance recommended for police officers who are dealing with a suspect when they anticipate resistance or a confrontation. The appellant submits that the trial judge erred in refusing to permit the defence to lead expert evidence to explain why an officer might not adopt the recommended stance. Counsel for the Crown conceded that it is difficult to deal with this issue without the trial judge’s ruling on the point, but submitted that the evidence would not have assisted the appellant as he admitted that he had not adopted the correct stance and failed to offer any explanation.
21I find it impossible to see how expert evidence on this issue could have assisted the appellant. The appellant had every opportunity to explain his failure to follow the recommended posture and failed to do so. In the absence of such an explanation, the expert's opinion on why the appellant might not have adopted the recommended stance would carry no weight.
Ground 3. The trial judge erred in failing to fully address the lawful reasons offered by the appellant for arresting the complainant.
22The appellant sought to justify the arrest on the grounds that the complainant was intoxicated in a public place. While the complainant had been drinking, the trial judge found that he was not intoxicated. That finding is not challenged on appeal. The trial judge also found that the evidence did not support the other essential element to justify an arrest under the Liquor License Act, R.S.O. 1990 c. L.19, s. 5, namely, that it was necessary to arrest the appellant for the "safety of any person”.
23The appellant submits that the trial judge erred in failing to consider another possible ground for arrest, namely, that the appellant had failed to identify himself to the officer. I agree with the Crown that it is apparent from the reasons of the trial judge why he did not address that argument: namely, the complainant, whose evidence the trial judge accepted, testified that he was not asked to identify himself.
Ground 4. The trial judge erred in entering duplicitous convictions.
24Assuming without deciding that there is some merit that the convictions for fabricating evidence and obstructing justice were, in the appellant’s words, “duplicitous”, I fail to see how this advances the case for bail pending appeal. The sentences imposed on those two counts were concurrent and even if one of those counts were stayed, the sentence of one year would be unaffected.
Is the appeal frivolous? Conclusion
25In my view this appeal is frivolous. The case turned on credibility and the trial judge gave careful and detailed reasons rejecting the evidence of the appellant and finding that it failed to raise a reasonable doubt. The appellant’s version of what occurred was inconsistent not only with the complainant’s evidence but also with the video. The video evidence is powerful and overwhelming and it is impossible to see how the grounds of appeal advanced by the appellant could overcome the force of that evidence. Despite Mr. Butt's very capable and professional argument, I conclude that the grounds for appeal advanced by the appellant fail to surmount the very low threshold required for bail pending appeal.
(ii) Public Interest
26I turn to the tertiary criterion, namely, the public interest. I recognize that it is highly unlikely that this appeal will be heard before the appellant has served his sentence and that the interest of reviewability favours release pending appeal.
27Against the interest of reviewability I must weigh the interest of enforceability. In my view, the interest of enforceability must prevail in the circumstances of this case. There is, in my view, no prospect of success on this appeal because of the powerful evidence revealed by the video. The appellant unleashed an unprovoked and vicious attack on the complainant. As Crown counsel put it, but for the video it is entirely possible that an innocent man would have been convicted on fabricated charges. The public interest in maintaining confidence in the integrity of the administration of justice strongly militates towards enforceability in these circumstances.
Disposition
28For these reasons, the application for release pending appeal is dismissed.