Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Brandon Gamblen
Before: Justice K. Caldwell
Heard on: June 4-6, 2012; January 21, 22, 24, 25, March 20-21, July 15, 2013
Reasons for Judgment released: November 25, 2013
Counsel:
Ms. Marnie Goldenberg — for the Crown
Mr. Davin Charney — for the Accused
Judgment
Introduction
1Mr. Gamblen is charged with mischief, assault police, obstruct police, and assault with intent to resist arrest relating to a protest against budget cuts held at Toronto City Hall.
2Mr. Gamblen argues that his guilt has not been proven. Further, he argues that the actions of the police led to a number of Charter violations. These violations are summarized as:
(i) a section 7 violation relating to alleged "lost evidence";
(ii) a section 9 violation relating to his continued detention which flowed from his refusal to agree to proposed release terms which he alleges were not in compliance with the Criminal Code;
(iii) a section 8 violation relating to the search which flowed from the subsequent decision to show cause Mr. Gamblen.
3The lost evidence application only relates to evidence that would be relevant to the Charter applications and not to the charges. As a result, I will deal first with the substantive charges and then move to the Charter applications.
4I will begin with a review of the relevant evidence relating to both the charges and the Charter. This review is quite detailed given the nature of both the charges and the applications. I will then move to my findings of fact relating to the charges and my analysis of the law and application of the law to those findings of fact. Finally, I will address my findings of fact regarding the Charter applications and my analysis of those applications.
The Evidence
5Seven police officers were called by the Crown. Mr. Gamblen then testified, and he called two further witnesses.
6In addition, there were four videos admitted as exhibits. Exhibits 1, 6 and 7 are all footage of different points in the protest. Exhibit 5 is the booking video and is relevant to the Charter applications.
PC John Antonelli
7PC John Antonelli testified that he was one of the uniform officers who attended City Hall due to the anticipated protest. Shortly after he and his partner, PC Hopkinson, arrived they heard loud screaming and drumming within City Hall. Mr. Mike Tooleram, a City security officer, ran up to them frantically requesting assistance, stating "in the room, they are causing problems". As the officers approached the room in which the meeting was held, people were running out, hands raised in panic, saying "I work here, I work here", conveying to the officers that they weren't the cause of the disturbance.
8Once in the room, the officer saw a general state of confusion with people yelling, swearing, chanting, and he could hear a loud drumming noise. One man in particular, Councillor Doug Ford, was being targeted as the group was yelling "Doug" repeatedly. The officer was afraid that Councillor Ford would be assaulted. People who were part of the meeting were running out of the room while people who were not allowed into the area were flooding in. It appeared that the budget meeting could not continue.
9Councillor Ford wanted to be led out of the room so security guards surrounded him in order to escort him out safely. It was clear the group didn't want him to leave and people continued to yell at him. One example of the statements that were yelled was, "you are a son of a bitch, people are starving!". One woman in the group was pushed away by security. This appeared to upset another woman in the group, later identified as Ms. Danielle Koyama. She began pulling on security officer Mr. Roger O'Neill.
10PC Antonelli arrested Ms. Koyama for assault. At that point, the officer felt that the group's anger was redirected towards him. The crowd surrounded him, chanting "let her go, let her go!". Ms. Koyama's resistance increased, but not to the point of being assaultive. She then tried to pull away in order to get to the security guard. At first, he thought she might not have realized he was an officer so he identified himself, and subsequently cautioned her a number of times. He also had difficulty handcuffing her.
11As his dealings with Ms. Koyama unfolded, his partner, PC Hopkinson, attempted to keep the crowd back. PC Antonelli's attention was drawn to one person who just refused to stay back. That person was Mr. Gamblen. As the crowd moved in, PC Hopkinson was very close to him, so close that when PC Antonelli looked up he was looking at his partner's belt and behind.
12The officer was concerned that he would be kicked by Mr. Gamblen and said Mr. Gamblen kept trying to go around PC Hopkinson who was attempting to block Mr. Gamblen from reaching PC Antonelli. He described Mr. Gamblen as loud, very angry, cursing, swearing, yelling "let her go", and he could hear Mr. Gamblen over the crowd. He found that Mr. Gamblen made Ms. Koyama's arrest even more difficult as he was a distraction, and that made it difficult for the officer to get the handcuffs on as quickly as possible.
13Ms. Koyama was face down on the ground, with the officer on his knees. The officer reached up to grab his partner's handcuffs as his own had jammed.
14Ultimately other officers arrived who assisted with crowd control. Ms. Koyama was then taken down to the wagon waiting to transport her to the station. This officer later learned of Mr. Gamblen's arrest.
15Once at the station, the officer participated in Mr. Gamblen's search prior to lodging him in the cells for show cause. The officer in charge of this case, Detective Shankaran, asked PC Antonelli to bring Mr. Gamblen down to the booking hall. Sgt. O'Kane, the officer in charge of the station, asked the standard questions that are asked during the booking process. After this part of the process, PC Antonelli and PC Hopkinson conducted a level 3 search. Such a search is a complete search but is not a body cavity search which is more invasive. Each item of clothing is removed. The individual is never completely naked as, for example, a shirt would be put back on before pants are removed. He denied eating a piece of cake during the search process.
16I will describe the various videos later in this judgment; however, a gap of approximately 17 seconds in the booking video, EX 5, is very controversial in this case and forms the basis of the lost evidence application. Mr. Gamblen claims that the missing portion contained an offensive statement from Sgt O'Kane, the booking officer. Before Mr. Gamblen was lodged in the cells to be show caused the next day, he was taken back before Sgt. O'Kane and informed that there would be a search. Mr. Gamblen stated that the sergeant said that he wished he could be the one to put his fingers up Mr. Gamblen in response to Mr. Gamblen's question as to whether something like that would happen. All of the officers denied that Sgt O'Kane said anything of this nature.
17PC Antonelli also said that it appeared the video equipment was not working properly that day as there appeared to be a gap in time when the video was not recording at one point and, additionally, it appeared the video machine also turned on at another point to capture events that would not ordinarily be filmed. The video usually only films events related to the booking process but it was clear from this footage - including a portion showing this officer eating his lunch - that the video also captured other footage on this date. He didn't recall any officer ever stopping the machine at any point and testified that it would be inappropriate to do that.
PC Hopkinson
18PC Hopkinson said that he and his partner were briefed in advance that it was anticipated that a number of protest groups including the Ontario Coalition Against Poverty ("OCAP") would be present for City Council's budget meeting. They were informed that the meeting may be interrupted but the police were not to intervene unless asked as city council wanted to give people the opportunity to speak.
19PC Hopkinson made the same observations as PC Antonelli concerning their ultimate need to intervene and the initial scene as they approached the council chamber. He recognized certain people as members of OCAP given prior protests that he had attended. Some of the comments he overheard were "rich son of a bitch", "people are starving" and "rot in Hell".
20He saw Mr. Gamblen move towards Councillor Ford, yelling at Councillor Ford in an aggressive manner. Councillor Ford was seated and Mr. Gamblen ultimately bent down towards him, less than a foot from him. The officers and security decided to get Councillor Ford out of the chamber. They cleared a path with security proceeding first, then PC Antonelli, followed by PC Hopkinson, then Councillor Ford.
21A female protester intervened and began yanking on security. PC Antonelli arrested her for assault. At this point they were near the door that led from the council chamber to the hallway. She began to struggle. Once in the hallway, he saw a glassed in area to his right. They wanted to get Councillor Ford behind the secured area and out of the melee but his partner was still struggling with the woman. The crowd, mainly press, kept closing in. He then moved between the crowd and his partner so that his partner could complete the arrest. He pushed the cameramen back.
22Shortly after this, Mr. Gamblen pushed through the crowd to get to PC Antonelli and the lady. He shouted "let her go!" continuously and appeared very angry. He agreed that Mr. Gamblen cannot be heard shouting on the videos that were introduced but he also pointed out that the videos only show aspects of the events that day and they also portray Mr. Gamblen attempting to reach PC Antonelli.
23Mr. Gamblen grabbed PC Hopkinson's jacket and pushed the officer. PC Hopkinson pushed Mr. Gamblen back and cautioned him regarding both obstruct police and assault. The officer had to do this repeatedly over the course of this incident. The officer managed to get Mr. Gamblen back into the crowd but Mr. Gamblen then went around the protesters to get through the crowd at another point.
24PC Hopkinson knew that a call had been placed for reinforcements but at this point only he and PC Antonelli were dealing with the crowd. He couldn't help his partner effect the arrest nor could he turn to communicate with his partner because then his back would have been to the crowd. He had managed to get the media and camera people to move back; his main problem was with Mr. Gamblen. He did not believe that Mr. Gamblen ever touched PC Antonelli as ultimately the officer was successful in keeping him back; however, PC Hopkinson said Mr. Gamblen did interfere with the arrest because he prevented PC Hopkinson from assisting his partner.
25Initially he didn't intend to arrest Mr. Gamblen as he and the other officers face these situations repeatedly but Mr. Gamblen was persistent and the only person the officer had to repeatedly push back. The officer decided that Mr. Gamblen would be arrested once reinforcements arrived. The officer agreed that he didn't see Mr Gamblen disrupt the meeting while it was in progress.
26Once PC Ong arrived on scene, PC Hopkinson briefed him about what had occurred. Mr. Gamblen was still trying to get through the crowd to get to PC Antonelli. He also heard PC Ong caution Mr. Gamblen. At 10:20, approximately, they tried to arrest him. He was told to put his hands behind his back but he refused and tried to pull away. He struggled and continued to resist.
27PC Hopkinson grabbed him to get him over to the bench though during direct examination he did not recall the details of how he grabbed him. Under cross-examination he said he grabbed him in the chest, head, shoulder and neck area and thus it could have appeared that he was choking Mr. Gamblen but he emphasized that he could not remember any greater detail as the situation was very fluid. The officer identified himself in a photo shown to him by Mr. Charney and he agreed that the photo made it appear that Mr. Gamblen was choked. He noted, however, that the snapshot was of a moment in time and that he knew he was not choking Mr. Gamblen as Mr. Gamblen continued to yell and scream throughout. In training, the officer learned that if you control the head, you control the body.
28The officer managed to manoeuvre Mr. Gamblen to a bench against a wall. Once there he pushed Mr. Gamblen's chest down to his thighs in order to control him better and handcuff him. Mr. Gamblen tried to kick at the officer and did make contact but there was no bruising or breakage to the skin, though it hurt. PC Ong told him that he'd been kicked as well. Once handcuffed, he was led away; however, he continued to yell at the protesters and cameras. The officer remembered him shouting "see, this is what happens in Toronto".
29When they got him to the glassed area where they had taken Councillor Ford earlier, Mr. Gamblen fell to the ground in a move the officer viewed as deliberate because they were holding him up at that point thus there was no need for him to fall. He concluded that Mr. Gamblen was grandstanding for the cameras. A putdown search was done and rights to counsel were given.
30Once they reached the wagon officers, he was told the reason for his arrest again and given his rights to counsel again as he claimed that he didn't understand. He continued to say he didn't understand and ultimately the officer concluded that he was being difficult.
31Once at the station he was given a level 3 "strip search" by this officer and PC Antonelli. He understood that the level 3 was conducted because Mr. Gamblen refused to sign the proposed release undertaking thus he was to be held for a bail hearing. As he would be in with the general population until that time, the search was necessary to ensure he had no weapons. Given the ferocity of what had just occurred at City Hall, this was a concern.
32He agreed that he should have noted both the fact of the strip search and the reason for it in his notes but said he failed to do so as he had already copied his notes for this case and given them to the detective for disclosure prior to the search. He thought Mr. Gamblen would be released so the necessity to show cause him came as a surprise. He agreed that there are times people are held in custody without such a search.
33He did not remember all of the details of his conversations with Mr. Gamblen before the search but he found him uncooperative in the sense that he would ask the officer to explain various aspects to him repeatedly, much as he had done with respect to rights to counsel.
34He was aware that the interactions between Mr. Gamblen and the officers were being taped while they were in the booking area.
PC Rhoel Ong
35PC Rhoel Ong was with his partner, PC Texeira, when they were called to assist at City Hall. There were approximately forty people outside when he arrived, and he understood that some were already on the second floor. When he reached the second floor he saw forty or fifty people screaming, yelling and chanting as they moved towards the council offices. He heard a male yelling "let her go!" loudly and saw a female being escorted out by PC Antonelli.
36He heard PC Hopkinson tell this male to step back but the male, whom he identified as Mr. Gamblen, kept yelling, ignoring the officers' demands. PC Ong heard PC Hopkinson caution Mr. Gamblen for obstruct police but Mr. Gamblen continued to yell. PC Ong attempted to calm Mr. Gamblen down but to no avail. In PC Ong's view, Mr. Gamblen's yelling created a domino effect, with others attempting to push forward. He did not see Mr. Gamblen assault any officers prior to his arrest.
37PC Hopkinson then told PC Ong that he was going to arrest Mr. Gamblen so that PC Ong could assist if necessary. He assumed that the arrest would be for obstruct police though that was not clarified by PC Hopkinson. PC Ong placed his hand on Mr. Gamblen's right wrist while PC Hopkinson took his left arm. PC Ong felt Mr. Gamblen stiffen. The officers could not handcuff him. PC Ong kept attempting to calm Mr. Gamblen down but the officers couldn't do much given the crowd and the lack of "compliance space".
38PC Hopkinson then grabbed Mr. Gamblen from behind in order to cause him to lose control and they placed him on a nearby bench. He couldn't remember exactly where PC Hopkinson placed his arms but he remembered them going around Mr. Gamblen. A photo was shown under cross to the officer but the officer was unsure whether the photo depicted PC Hopkinson.
39The officers were facing the crowd throughout this process, and the bench was behind the officers. He said that they didn't want it to appear that they were hurting Mr. Gamblen. When asked to explain this statement under cross-examination, he said that Mr. Gamblen was actively resisting, knew to stiffen up in order to actively resist without appearing to resist, and that the officers could have taken him to the ground but they were aware of how that would appear to the media thus they moved him to the bench instead.
40Mr. Gamblen continued to struggle even while seated. PC Ong said that Mr. Gamblen also kicked the officer in a manner that could not be seen by others - in PC Ong's view, this was done purposefully, in order to cause the officers harm or anger them. PC Ong made sure that the other officers around him were aware of these actions. He was kicked seven or eight times in total, and he could not remember whether the kicks were to his front or side. The officer had no way of preventing the kicks other than by moving backwards. He had no bruises or other injuries as a result. He estimated that Mr. Gamblen was on the bench for a minute or two before the arrest was effected. He said the arrest needed to be effected quickly so that they could move back to crowd control.
41The officers wished to take Mr. Gamblen to a nearby glass exit door in order to prevent the crowd from following. Mr. Gamblen then went down to the ground. PC Ong thought that this action was unintentional; however, he said PC Hopkinson told him later that it was done on Mr. Gamblen's own accord. Mr. Gamblen was on his stomach and refused to stand. Eventually the officers managed to get him through the exit and down to a waiting wagon.
Detective Shankaran
42Detective Shankaran was the detective who spoke to both Ms. Koyama and Mr. Gamblen about their potential release conditions.
43His impression from watching the news was that the protest was an OCAP protest. He recognized Mr. Clark as a speaker on TV and knew him to be involved with OCAP. He also recognized others from other OCAP protests. He agreed that there were likely other groups aside from OCAP involved. He also put weight on the information he received from the bike officers as he said these officers, situated in 52 Division in the downtown core, dealt with such protests frequently. He agreed that he did not have a membership list for OCAP nor did he know if OCAP kept a formal list. He would define, however, Mr. Clark as an "associate" of OCAP given his prior experiences with Mr. Clark.
44The detective felt that Mr. Gamblen was a release candidate given his lack of a record and lack of police history. He knew that Mr. Gamblen was on disability thus he didn't want to ban him from City Hall as he might need the services offered there. Further, he didn't want to prevent Mr. Gamblen's individual right to protest as the officer had learned in his own university studies of the importance of this right.
45The detective felt that a limitation was necessary, however, given that Mr. Gamblen was one of only two protesters arrested that day. He had previously seen occasions when a couple of people incited a crowd to violence. He also felt that it was important to keep those prone to violence out of the protests. He knew there were more budget meetings to come at City Hall. He thus determined that a condition not to associate with other members of OCAP was appropriate. If he had reached the point of actually crafting the clause, he would have worded it akin to "not to associate with known members of OCAP".
46Under cross-examination he was asked whether it would have been better to formulate a condition which prevented Mr. Gamblen from attending protests. He said he hadn't considered this but didn't see it as an improvement as there would then be issues surrounding the definition of "protest" and he would then be prevented from standing in City Hall square, alone, shouting slogans.
47He was very careful in his conversation with Mr. Gamblen, and would have used both the term "member" and the term "associate". Any release had to be enforceable. He agreed that a term that simply included the word "member" would be improper and unenforceable.
48Any officer who arrested Mr. Gamblen for breaching such an association clause would have to be able to articulate reasonable and probable grounds for believing that the person with whom Mr. Gamblen associated was connected to OCAP. He pointed out that a downtown officer who dealt with protests frequently would be able to articulate such reasons while an officer who spent his entire career in the Scarborough housing projects would have more difficulty. A downtown officer would be able to distinguish between an OCAP protest and, for example, a Serbian protest.
49Mr. Gamblen refused to abide by any such condition and offered no explanation. As the officer thought Mr. Gamblen and Ms. Koyama were a couple, he asked if this was why Mr. Gamblen wouldn't sign. Mr Gamblen said, "no", and, in fact, Mr. Gamblen and Ms. Koyama were not involved with one another. The officer would have made an exception for contact with Ms. Koyama if they had been in a relationship.
50In his notes, and in his conversation with Mr. Gamblen, he used the term "associate" and "communicate" at various points and used them interchangeably. He had a lengthy conversation with Mr. Gamblen about the meaning of the term "associate" but he doesn't have a record of all of the details of the conversation. He said, however, that he would have been quite detailed about what he meant by these terms. He described a similar conversation with Ms. Koyama who was called as a defense witness at this trial. Ms. Koyama stated that she asked to speak to her lawyer about the ramifications of signing such a bail and was refused that opportunity. Detective Shankaran denied that he would have refused such a request. He pointed out that he has stopped statements partway through when requests were made to speak to counsel. He knows the importance of this right and also knows that cases can be lost as a result of such a refusal.
51Mr. Gamblen was to be held for a bail hearing and was told that this was due to his failure to agree to the proposed condition. The officer confirmed that this was the only reason that he was held for a show cause hearing. The officer felt that the term was necessary for both officer and public safety.
52He felt that a level three search was warranted. In making that assessment, he considered the fact that Mr. Gamblen would be in "general population". The show cause hearing entailed staying at the division overnight. People are handcuffed together and they can touch hands through the cells. The concerns are the passing of contraband and the use or passing of weapons. Drugs were not a major concern in this case though, as he put it, "people surprise us". Given the assault police allegation, weapons were a concern. Further, in the morning Mr. Gamblen would be transported to the courthouse in the wagon and handcuffed to other prisoners. There are no video cameras in the back of the wagons and the prisoners are unsupervised. It is for all of these reasons that the Search of Person Template contained the checked off box for "heightened safety concerns for show cause/detention order" (see Exhibit 10). The fact that someone will be show caused does not lead to an automatic search; it depends upon the circumstances.
53Mr. Gamblen never complained of any injuries though the officer was aware he was on disability. The officer asked if he was okay, given that fact, and Mr. Gamblen said he was fine.
Detective Gerard O'Kane
54Detective Gerard O'Kane was the booking sergeant on duty when Mr. Gamblen arrived at 52 Division. He was called as a witness largely because of Mr. Gamblen's allegation that this officer spoke inappropriately to him prior to his search. Mr. Gamblen said that he asked if fingers would be put inside him during the search, and that this officer responded by saying "I wish I could be the one to do that".
55The booking video was entered as an exhibit and I will outline its contents in more detail during my assessment of the facts. There is a clear gap in the video – Mr. Gamblen claimed the comment was made during this brief period.
56Detective O'Kane denied making any such comment. He said that he was aware that the booking process is taped. He also said that he would not make such a comment, even in jest, as he is aware that such searches are very invasive and he did not like conducting them himself.
57He was aware of the gap in the tape, could not explain the reason for it, and said that he had seen similar gaps in other videos using the closed circuit video camera (CCTV). He denied ever turning the video on and off. Detective Shankaran also testified that he has seen similar gaps in other videos, which he described as a "glitch".
58Detective O'Kane said that not only has he never been found guilty of police misconduct but he hasn't even had a prior complaint laid against him.
59He said that once the detective decided that Mr. Gamblen would be held for a show cause, it was the responsibility of the booking sergeant to decide the level of search. A level 3 search had been requested but this officer made the final call on that issue. In assessing whether it was warranted, the officer looks at the type of offence, whether weapons were used, whether anything had been found in the level 1 and level 2 searches, if the individual will be in general population, if he will have contact with unarmed court staff. Further, he looks to the person's mental state, previous suicide attempts, and whether alcohol or drugs were involved.
60He explains to people what is going to happen. If he were asked if there will be a body cavity search, he would explain that only a doctor can conduct such a search. He did not remember if Mr. Gamblen asked about this type of search, though he said it was possible, and noted the skip on the video.
PC Andrew Dobro
61PC Andrew Dobro was working with Sgt. O'Kane when Mr. Gamblen was booked. He testified that the allegation concerning Sgt. O'Kane's comments to Mr. Gamblen was outrageous, and would have been totally out of character for Sgt. O'Kane. From his perspective, the booking process was routine and uneventful; no comments of this nature were made by anyone. He also pointed out that the officers would have been on their best behaviour because as far as they knew the video was on. He could only speculate as to what happened. The equipment was new. He was the one who was responsible for operating the equipment and he never deliberately turned it on or off during the time period of the gap. He did not see anyone tampering with any buttons. It is DVD equipment, not tape equipment, and he does not have the knowledge to tamper with it – he described himself as a computer caveman.
Mr. Brandon Gamblen
62Mr. Gamblen gave a very different account of the events that day. First, he outlined his understanding of OCAP's organization. He said that he was not aware of a membership list and he described it as a loose association of people who volunteer their time or donate money. He has attended lots of meetings and events, handing out leaflets, carrying sound equipment, serving food, carrying banners, placards or flags on marches. A large number of his friends are supporters of or participants in OCAP.
63He is on the email list for both OCAP and "No One is Illegal" thus he believed he received the notification of the City Hall protest through one of these routes. He was shown a poster entered as an exhibit in this proceeding; it listed in the lower corner a number of groups connected to the protest, including OCAP (Exhibit 11).
64His main concern was the proposed cutting of shelter beds as it was winter and he was concerned about the potential drastic consequences of people sleeping on the streets in freezing weather.
65He recently had major reconstructive surgery on his knee so he planned to attend the meeting after his medical appointment for his knee, and then he planned to head home. His recent surgery made him very protective of his knee – stepping down from a curb, or slipping on the ice or snow were all concerns. He could not run as his muscles had atrophied and his joint was unstable.
66He chatted with a few of his friends gathered outside when he first arrived, then moved inside to warm up. He was not aware of any plan but he wanted to hear how the shelter bed cuts would be explained and he assumed they would take questions from the gallery. He didn't think that the meeting would be disrupted.
67Up to this point, events were fairly boring. He entered the gallery alone to hear the discussion. After he had been inside for about five to ten minutes, he heard the sound of drumming approaching the chamber. Prior to entering, he had not seen the drums though he was familiar with them from other events.
68He heard a recess called, and saw the press moving forward. He decided to join them to see what was happening. He did identify himself as one of the individuals in the video of the interior of the council room and confirmed that he had an exchange with Councillor Ford. He overheard Councillor Ford tell someone to "go fuck" themselves and, surprised that Councillor Ford would say something like that in the council chamber, he asked Councillor Ford to repeat the statement. He also said to Councillor Ford something along these lines: "do you think starving people makes you rich, and your buddies richer, is that how your budgets work?". At that point, Councillor Ford told him to get a job.
69He was talking to Councillor Ford in a normal speaking tone throughout though he may have raised his voice slightly toward the end but he certainly was not screaming. He explained his rocking actions on the video as his attempts to jockey for position because there were so many people in the area. He had felt someone tugging on his shoulder earlier and assumed it was press so he had turned around and told the person not to touch him.
70He left the council chamber after Councillor Ford but he was no longer particularly interested in Councillor Ford as the meeting was clearly over at this point and everyone appeared to be leaving. As he exited the chamber, he saw an unknown woman, later identified as Ms. Danielle Koyama, on the ground with an officer on her back. Her arms appeared to be behind her and she was screaming in pain. The officer was "grinding" on her and his actions seemed gratuitous.
71He walked over to the officer and said, "what are you doing? You are hurting her, stop hurting her". If he had wished to interfere with the arrest he could have easily taken hold of the officer at this point. He agreed that he did not know what Ms. Koyama had been doing prior to this point.
72He was pushed back by either security or other officers and he was being jostled by the crowd as it was growing in size as people exited the chamber. His concerns for the safety of his knee were rising. He wasn't comfortable leaving, however, as Ms. Koyama was still screaming in pain and he didn't feel he should leave an injured person on the ground. He was pushed back a second time, along with others.
73He identified himself on the City TV video taken of the scene as a person being pushed back by security and PC Hopkinson. He did not try to make contact with PC Hopkinson though his hand may have come up reflexively when the officer pushed him back. In fact, he consciously was trying to keep his hands at his side so that he wouldn't be construed as doing anything aggressive towards the officers as his experience with past protest situations has led him to conclude that it is dangerous to interact with the police in protests.
74His knee continued to concern him so he tried to move to an area that was less congested. He had trouble moving back as people were moving forward. He didn't know where the exits were so he couldn't leave altogether and he could be injured attempting to move through the crowd so he tried to find a place that he could still watch Ms. Koyama to make sure she wasn't hurt. He did yell "let her go" again as he hoped the officer would hear him and it might prevent her from being hurt further. There were always other people either ahead of him or beside him during this time. Others were shouting, "let her go". He was not shouting in unison with the rest of the crowd, however, as he wasn't really paying attention and was not trying to say anything in unison with the others.
75He couldn't hear any instructions from the officers. The officers were pushing several people back, making a ring around the arrest so he assumed that they were creating as much space as they felt was necessary. Ms. Koyama continued to shout in pain so he continued to raise his voice, saying "let her go".
76He never deliberately did anything unlawful but was acting on principle, and he felt he was within his rights to do what he was doing. He felt that it was morally and ethically correct to speak against the gratuitous injury of another protester. In his view, there was nothing unlawful in shouting, "let her go".
77He was not attempting to interfere with Ms. Koyama's arrest nor was he trying to distract PC Antonelli. In fact, he was attempting to have the officer focus on what the officer was doing, namely, hurting Ms. Koyama. He also said he did obey the officers when they pushed everyone back.
78PC Hopkinson then went around behind him and put him in a chokehold. He couldn't breathe and was gasping for air. He thought he was being detained but no one told him he was under arrest. His head had been moved behind the rest of his body so he was off balance and completely reliant upon the officers to hold him up. He was frightened given that he didn't know where the officers wanted him to go and given his inability to breathe. He felt like he was falling when he was placed on the bench and he thought there was a gap between the bench and the wall.
79He was not trying to kick the officers but his feet were coming up as he was being leaned back. He remembered an officer telling him that he was kicking the officer and he replied by saying that he was not doing that. Given his knee injury, he wouldn't have had the capability to kick.
80A female officer shoved his jacket into his mouth. PC Trisha Boyle was called briefly in reply on this point. She assisted PC Hopkinson and PC Ong with this arrest. She stated that at no point did she shove Mr. Gamblen's jacket into his mouth and that she had no concerns about his breathing nor did she observe any issues with his consciousness. She also didn't see what led up to Mr. Gamblen's arrest, didn't see him try to assault any officer, nor could she recall people yelling "stop choking him" though she observed it on video after the fact. She was not focussed on Mr. Gamblen prior to his arrest but instead was dealing with other individuals.
81Mr. Gamblen said that he had become unconscious or semi-conscious and was very disoriented and confused. Ultimately he was moved backwards towards a stairwell area and read his rights. He denied that he was grandstanding by falling to the ground as he was moved to the stairwell.
82Once at 52 Division he was kept handcuffed in an interview room for a very long time. Ultimately Detective Shankaran came to the door and asked him if he would agree not to associate with OCAP or anyone in OCAP. When he asked what that meant, he was told that it included anyone at the protest. He told the officer that his then common law spouse, Ms. Ashleigh Ingle, was at the protest so the officer responded, "okay, so you can't" and abruptly shut the door. Most of the people he knows have some connection to OCAP. He was unable to think of a specific list of people; however, OCAP is a grassroots organization that tries to be non-hierarchical and very open. He did not have a chance to discuss any of his concerns with the officer.
83Ultimately, when he was lodged in the cells, he broke down and told the officers that he would sign anything because the conditions in the cells were so cold and severe; however, the officers just laughed and taunted him. An older officer in the cell area said "you know, you people make me sick, you fucking bleeding hearts, look at where you ended up now, look at where it got you". He was given toilet paper for use with the toilet but he used it to wrap around his neck to guard against the cold. He was concerned that he would contract hypothermia. Ultimately he was released by a justice of the peace.
84He was very concerned about the search process. He asked Detective O'Kane, the booking sergeant, "are you going to be the one to stick your fingers up my ass?" and the officer responded, "I wish I could be the one to stick my fingers up your ass". It is at that point that the gap in the video footage occurred so the comments were not reflected in the video. The other officers were putting on gloves so he assumed this would be part of the search process. He did not react, however, as he did not want the officers to see that he was concerned.
85Once in the search room, the officers made him strip completely naked, and had him turn to face the wall with his hands on the wall. PC Antonelli exited the room and returned with a piece of cake which he proceeded to eat during the search process. He was also making derogatory comments about Mr. Gamblen's "type of people". He was left with the impression that the officers were prejudiced against protesters, particularly OCAP protesters. He found the experience humiliating and sexually degrading.
Ms. Ashleigh Ingle
86Ms. Ashleigh Ingle, Mr. Gamblen's ex common law spouse, was also at the protest. She verified Mr. Gamblen's contention that he had knee surgery in the recent past, that he couldn't return to work as a result, and that he had difficulty with stairs and heavy objects. She also described the overall structure of OCAP in the same terms as had Mr. Gamblen. Given its looseness, she didn't think it was even possible to say who was a member and who was not.
87She had helped with the City Hall protest by putting up posters but she had not attended any of the event's organizational meetings. She rated her involvement with OCAP as a "six" and Mr. Gamblen's as a "two" or "three" out of ten. She thought there would be some speeches about the budget, but she had not expected the meeting to be disrupted. She was doing a masters in atmospheric physics at U of T and had all of her research on her computer which she had with her – she planned to head to school after the meeting – she would not have brought this material with her if she had anticipated events unfolding as they did.
88Once she arrived at City Hall, she met up with a group of people including Mr. Gamblen and headed into the meeting. They were with the group that marched into City Hall. Shortly after they entered the council chambers, a recess was called. She is not sure why this happened but she thought it was because some people were chanting and some announced that they were going to do speeches. She recalled Lisa Schofield of OCAP making an announcement at the front of the chambers shortly before the recess was called. She didn't remember Mr. Gamblen shouting or chanting before the recess was called.
89Once they were outside the council chambers, she saw Ms. Koyama on the ground with her face pressed into the carpet. She didn't know initially if Ms. Koyama was under arrest but that became apparent to her eventually. People were standing in a semi-circle a fair distance from Ms. Koyama, approximately five feet, chanting "let her go" and the police pushed her back a few times. In her view, no one was interfering with the arrest. She saw Mr. Gamblen behaving like the others, also chanting "let her go" with the rest of the group. She found that the mood of the group had changed in the hallway, and that it changed very fast. She hadn't seen a tone quite like this one at prior OCAP protests.
90She had, however, been to other protests and said that it was fairly standard, for people to chant "let her/him go" when an arrest was occurring. She didn't think that the behaviour on the part of any of them was criminal as they were simply chanting and they were removed from the actual arrest.
91She saw Mr. Gamblen's arrest. Two officers grabbed his arms and then one put his arm around Mr. Gamblen's neck and began choking him. She kept screaming "stop choking him" as she thought he was losing consciousness. She was also worried about his knee. She saw him held on the bench by a few officers and she thought someone was also trying to grab his legs. Officers were also holding his arms. She had moved quite close to them at this point, perhaps six feet away, and was watching closely. She didn't see him kick or try to kick anyone. She didn't think he regained consciousness as he was dragged out of the room.
92Since this incident, she and Mr. Gamblen discussed what happened but more in terms of the impact on their relationship as she found the entire event very disturbing.
Ms. Danielle Koyama
93The last defense witness was Ms. Danielle Koyama. She is heavily involved in OCAP and, again, described the same structure as Ms. Ingle and Mr. Gamblen. She was involved in organizing the City Hall protest but was unaware of any discussions about specific roles.
94Once people were in the council chambers, she recalled "Lisa" addressing the committee which "technically" you cannot do, as she understood it. People then began yelling. She saw security officers encircle and grab Lisa, leading her out of the room. Ms. Koyama was worried and thus tried to push her way through the crowd to see what was happening. A police officer whom she later believed was PC Antonelli then grabbed her and shoved her out of the room. The officer jacked her arms up behind her back and she began screaming as it hurt. She was shoved to the floor and handcuffed. She didn't resist as she was in too much pain. She believed that she, Lisa, security and police were the first ones out of the room. She heard the "let her go" chanting and heard Mr. Gamblen yelling this phrase. She also saw Mr. Gamblen being choked.
95After she was led from the room she was charged with assaulting a security guard and mischief. She resolved her matters by way of a guilty plea to cause disturbance and received an absolute discharge. She did not assault anyone nor was she disruptive prior to her arrest and she believes that the security guard she was accused of assaulting confused her with someone else. She had been arrested twice before in similar circumstances but was diverted. She had a sore shoulder and joints which lasted for several weeks, plus a rug burn to her forehead.
96The detective told her that she could be released from the station if she agreed to certain conditions including one requiring that she not associate with Mr. Gamblen or with anyone from OCAP. She said she could agree to the former but not the latter and, when she asked if she could discuss it with her lawyer, she was told "no". It is possible that the officer said that she was not to associate with anyone known to her to be from OCAP.
97Two female officers then came in and strip searched her. Ultimately she was released by the court. No term requiring non-association with OCAP was included but she was required not to have contact with Mr. Gamblen and with two officers. She said that so many people she knows identify with OCAP that it would be impossible to sign such a condition, plus undoubtedly she also associates with others who identify with OCAP unbeknownst to her.
Findings of Fact Regarding Substantive Charges
98I make the following findings of fact:
that Mr. Gamblen entered the chamber with the others who were protesting;
that it has not been proven that Mr. Gamblen was shouting in the council chambers prior to a recess being called;
that Mr. Gamblen's tone was loud and aggressive once the recess was called;
that Mr. Gamblen was chanting and shouting outside the council chambers during Ms. Koyama's arrest;
that Mr. Gamblen intentionally pushed PC Hopkinson;
that Mr. Gamblen repeatedly tried to break through the officers, including PC Hopkinson, who attempted to keep clear a space to allow PC Antonelli to effect Ms. Koyama's arrest;
that during his arrest Mr. Gamblen made physical contact with PC Ong's and PC Hopkinson's shins but it is unclear whether he intended such contact;
that the officer was not choking Mr. Gamblen during the arrest and Mr. Gamblen was able to breathe during this process.
99I found all the officers to be credible witnesses and that each corroborated the other but not in a manner that suggested any form of collusion. At points I had concerns about the reliability of aspects of their evidence and I have indicated those concerns below.
100I have also assessed the evidence in accordance with R v W.D., (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). I am also aware that this case does not constitute a credibility contest and I can accept some, all or none of any witness's evidence.
101I found Mr. Gamblen to be disingenuous at points in his evidence and found that he minimized his actions and at times exaggerated the officers' actions. Other aspects of his evidence I accepted fully.
102Overall, I accepted the evidence of Ms. Koyama though I found that her perception of the events clearly was impacted by her palpable dislike of the police and that these feelings impacted upon her reliability. Further, I found her evidence to be of limited assistance regarding Mr. Gamblen's actions as it clearly would have been impossible from her vantage point to obtain a clear view.
103Overall, I was impressed by Ms. Ingle's evidence though there were aspects which I rejected. I found her evidence quite straightforward and there was a spontaneous quality to many of her answers. At times her evidence conflicted with Mr. Gamblen's evidence and in such instances I tended to accept her evidence as it was the more logical when assessed with regard to the overall tenor of the events, and also was corroborated by the videos.
104Video footage of the events in the council chambers was entered by the Crown as EX 1. This footage is lengthy, showing the initial, orderly meeting proceedings. Just over 50 minutes into the footage, it is apparent that the council members could hear the commotion approaching the chamber, though that commotion was yet to be heard on camera. The Chair called a fifteen minute recess early on, when protesters cannot be seen yet on camera. He also warned against disrupting the meeting. Gradually the noise increased and a female voice could be heard chanting above the crowd. The council members initially did not leave but as the numbers filing into the chamber increased and as the voices got louder, they began to disperse. Eventually drumming could be heard.
105After the recess was called, Mr. Gamblen eventually can be seen in a black jacket, fur trimmed hood, black knit cap, with a brown satchel worn across his body. He was right in front of Councillor Ford, leaning in, along with a number of other individuals, some of whom were presumably press. He cannot be heard on this footage, but I find that his body actions were somewhat hostile, as illustrated by one point at which he repeatedly attempted to shrug off another individual who was either attempting to have him move back or was attempting to get in front of Mr. Gamblen. He looked angry. At one point there appeared to be an exchange between him and Councillor Ford.
106I also note that at 57:11 on the video time stamp he sat down on one of the council tables and then swung his legs up and over in order to get over the tables and exit the room. Throughout this video he was very much a central part of the crowd, and was moving quite fluidly, including when he swung his legs over the table. At no point could he be seen favouring his knee.
107Reviewing PC Hopkinson's and PC Antonelli's testimony in light of this video, it appears that the officers arrived in the room after the recess was called, and after the start of the protest. As a result, they are not able to shed any light on what occurred before the recess was called.
108I reject Mr. Gamblen's evidence suggesting that he had, essentially, just happened to drop by as the crowd was milling and preparing to enter City Hall and his evidence that he entered City Hall alone to warm up and just to listen briefly to the debate. I also reject his evidence that he was inside the chamber listening to the debate for a good five to ten minutes before the disruption began. I find his evidence on this point disingenuous and find that it impacts negatively overall upon his credibility.
109I accept Ms. Ingle's evidence on this point as I find it logical and straightforward. She testified that she showed up at the event alone but she headed into City Hall with Mr. Gamblen and others. Given that they were common law spouses at the time, her evidence on this point simply makes sense. I also accept her evidence that they were part of the protest group that entered the chamber and I also accept her evidence that she and Mr. Gamblen were not amongst those chanting and shouting as they entered the chamber. The number who were chanting and shouting initially, before the recess was called, appeared upon listening to the video to be quite small. I find it entirely possible that Mr. Gamblen and Ms. Ingle were not vocal at this stage.
110PC Hopkinson spoke of Mr. Gamblen's behaviour towards Councillor Ford. He and Mr. Gamblen substantially agree regarding these actions, except regarding Mr. Gamblen's tone of voice, and their evidence is largely reflected in the video. Mr. Gamblen testified that he moved forward, questioned Councillor Ford, and may have raised his voice at the end. The officer characterized Mr. Gamblen's tone as yelling.
111I find that Mr. Gamblen minimized his degree of verbal aggression. I reach this conclusion upon reviewing all of the evidence, including his agitation which is clearly visible on the video and given his later behaviour. A description of tone of voice can be highly subjective, however, and I find it difficult to determine if Mr. Gamblen was literally yelling particularly given that his voice is not picked up on the video. I also find it difficult to determine if Mr. Gamblen was significantly more assertive than the press who were also questioning Councillor Ford.
112I now move to the events outside the council chamber, during Ms. Koyama's arrest.
113Two videos were introduced by the defense of the events in the hallway. The source of the first video, Exhibit 6, is unclear though it may be cell phone footage. The second video, Exhibit 7, is clearly City TV footage. Mr. Gamblen is front and centre at various points in both videos. This video footage was disturbing but not in the fashion intended by the defense. It reflected an out of control mob scene, very violent and aggressive in tone toward the police, and the police appear to be outnumbered, almost cornered.
114I find that Mr. Gamblen did attempt to intervene in Ms. Koyama's arrest, and that he was yelling and chanting. Further, I find that he intentionally pushed PC Hopkinson during the course of these actions.
115I make these findings based upon the officers' evidence, Ms. Ingle's evidence and Mr. Gamblen's evidence. Further, I make these findings based upon the video footage.
116The video footage in both Exhibits 6 and 7 shows Mr. Gamblen at the very front of this very large mob and at one point in Exhibit 7 he appeared to do an end run around the crowd and officers, coming in behind PC Antonelli and Ms. Koyama who were both on the ground, Ms. Koyama face down and the officer kneeling. In both videos, officers can be seen focussed on Mr. Gamblen, repeatedly pushing him back as he continued to move forward aggressively.
117PC Hopkinson, PC Antonelli and PC Ong all describe similar behaviour on Mr. Gamblen's part. I find that each officer corroborated the other regarding what happened at this juncture. Further, I find that their evidence is consistent with the video evidence.
118PC Hopkinson clearly was focussed on Mr. Gamblen given his persistent behaviour in attempting to get close to the arrest. I find that despite the chaos PC Hopkinson was in an excellent position to observe Mr. Gamblen's actions and I accept his evidence that Mr. Gamblen pushed him.
119As I indicated at the outset, I find that Mr. Gamblen underplayed his role in these events and I find that this fact undermines his overall credibility. The clear inference that Mr. Gamblen wished me to draw from his initial evidence is that he simply walked over to PC Antonelli to speak to him to draw his attention to the fact that he was hurting Ms. Koyama. I find having watched the videos that Mr. Gamblen was much angrier and more aggressive than he described in his testimony. Both his behaviour before Councillor Ford that I have described above and his actions in both Exhibit 6 and Exhibit 7 illustrate this fact.
120I find that he intended to defeat the officers' efforts to clear space around Ms. Koyama and PC Antonelli. It is clear from the video footage that the officers were attempting to separate the crowd from the area in which PC Antonelli was attempting to handcuff Ms. Koyama. The fact that he persisted in moving forward, that he did the end run around the officers and came quite close to PC Antonelli and that he was leaning into the officer makes this fact clear, particularly when these facts are assessed in light of his anger.
121I make this finding despite Ms. Ingle's contention that Mr. Gamblen didn't interfere and that the crowd stayed back. This part of her evidence is clearly contradicted by the video evidence and, further, there was such chaos that it would have been impossible to observe Mr. Gamblen throughout.
122I find his contention that he was simply trying to inform the officer that he was hurting Ms. Koyama in case the officer had missed that fact to be, bluntly, totally unbelievable.
123Further, I find that Mr. Gamblen overstated his caution about his knee. Having heard both his evidence and Ms. Ingle's, I accept that he had recently had knee surgery, that it was serious, and that he was still in rehabilitation. I find, however, that he was not as limited by or as cautious about his knee as he put forth in his testimony. I have already spoken about his ease in swinging himself over the council table. He is seen moving very freely, with absolutely no apparent issue or attempt to protect himself, on the videos. This finding is significant as Mr. Gamblen essentially stated in his evidence that he was cautious of his physical actions and watching the extent of his own involvement throughout because he needed to protect his knee. I reject this evidence.
124I also find that he downplayed his own role in the chanting. He indicated that though he yelled "let her go", he was not shouting in unison with the rest of the crowd, wasn't really paying attention to the crowd's chanting, and was not trying to speak in unison with them. This, frankly, simply defies common sense. It would not be coincidence that he chose the same words as those of the crowd. Further, though his voice cannot be heard on video, he was clearly acting physically in conjunction with the crowd and, as I've already stated, was front and center. Finally, Ms. Ingle contradicted him on this point, noting that he was chanting along with everyone else.
125I reject his evidence that his arm may only have been raised reflexively when the officer pushed him back and that he had no intention to push the officer. Further, his evidence does not leave me with a reasonable doubt. He said that he was consciously trying to keep his hands at his side so that he wouldn't be construed as doing anything aggressive towards the police as his experience in past protest situations led him to conclude that interacting with the police in protest situations is dangerous. This evidence is totally contradicted by his behaviour on the City TV video which I have already described.
126I find that the officers were not choking Mr. Gamblen nor did he fall to the ground semi-conscious. I have seen the photograph of an officer with his arm in the area of Mr. Gamblen's neck. Mr. Gamblen is tall and, on video, given in part his large coat, his build appeared large on the video. He had been very aggressive towards the officers. I find that they restrained him in the manner shown in the photo and on video in order to control him and I reject Mr. Gamblen's evidence that they were choking him. Further, I accept PC Hopkinson's evidence that Mr. Gamblen appeared to be grandstanding when he "fell" to the ground though obviously it was impossible for the officer to read Mr. Gamblen's mind.
127I accept that Ms. Ingle genuinely thought Mr. Gamblen was being choked but find that this was simply not the true state of affairs.
Legal Findings Regarding Substantive Charges
The Mischief Charge
128Mr. Gamblen is specifically charged with committing mischief in the council chambers. Whether he committed mischief in the hallway where the officers were attempting to arrest Ms. Koyama is not an issue that is before me.
129It can be a fine line that divides behaviour that is the mere expression of aggressive dissent in a democratic society and that which reaches the level of a criminal act. Clearly the entire context of the event must be examined in reaching the decision as to whether the line has been crossed. In this instance, a fifteen minute recess had been called and there is nothing to suggest that the meeting would resume prior to the passage of that time. There were others, including those who appeared to be press, who were circling Councillor Ford and persistently questioning him. I accept the police evidence that Mr. Gamblen was loud and aggressive. I cannot determine from the video footage, however, if he was significantly louder than the members of the press.
130Upon assessing all of these circumstances, I find that Mr. Gamblen's actions at this point, though verbally forceful, did not cross the line into the criminal realm. I find that they did not amount to a wilful obstruction, interference or interruption of the lawful use, enjoyment or operation of City Hall.
The Assault Peace Officer Charge
131As outlined above, I find that it has been proven beyond a reasonable doubt that Mr. Gamblen intentionally pushed PC Hopkinson, thereby assaulting him, while PC Hopkinson clearly was engaged in the execution of his duty.
The Obstruct Peace Officer Charge
132I find that it has been proven beyond a reasonable doubt that Mr. Gamblen both intended to and did obstruct PC Hopkinson in the execution of his duties.
133This offence is one of general intent: see R v Gunn (1997), 1997 ABCA 35 (CanLII), 113 C.C.C. (3d) 174, leave to appeal to the S.C.C. refused at 115 C.C.C. (3d) vi. Justice Pringle, in R v Velasquez, [2006] O.J. No. 4908 (Ont. C.J.) does an excellent review of the often confusing and contradictory concepts of general versus specific intent (see paras. 11-24). She quoted the S.C.C. in R v Daviault (1994), 1994 CanLII 61 (SCC), 93 C.C.C. (3d) 21, noting that general intent offences simply require the intent to do the actus reus of the offence while specific intent offences require a further ulterior motive or purpose.
134In Gunn, the Court held at paragraph 17 that the required elements of obstruct police were: (1) that there was an obstruction; (2) that the officer was in the execution of his duty; and (3) that the person obstructing did so wilfully. In explaining the final element, the Court noted at paragraph 46 that all that was required was that "an accused knows what he or she is doing, intends to do it and is a free agent" given the general intent requirement of the offence.
135PC Hopkinson's efforts to clear space around Ms. Koyama and PC Antonelli to allow PC Antonelli to effect the arrest were frustrated although not defeated by Mr. Gamblen's actions. There is no question that the officer was in the execution of his duty. Finally, Mr. Gamblen clearly knew that he was disobeying the officer's commands to stay back, and he clearly intended to move past the officer in order to reach Ms. Koyama and PC Antonelli. I am left with no reasonable doubt by his evidence to the contrary. In fact, it is clear from the video that he succeeded in that objective at one point. Given these factors, I find that the obstruct peace officer charge has been proven beyond a reasonable doubt.
The Assault with Intent to Resist Arrest Charge
136I have already outlined that I find that the mens rea for this charge has not been proven beyond a reasonable doubt.
Findings of Fact Regarding the Charter Applications
137I make the following findings of fact regarding the Charter:
that the police did not deliberately or negligently tamper with or disrupt the video equipment which resulted in the brief gap in the video that occurred before Mr. Gamblen was searched prior to being lodged for his show cause hearing;
that Sgt. O'Kane did not say that he wished he could be the one to put his fingers up Mr. Gamblen, or words to that effect;
that PC Antonelli was not eating a piece of cake during Mr. Gamblen's search;
that the search was conducted in a reasonable manner;
that there were some deficiencies in the officers notes of the search;
that Det. Shankaran discussed in some detail the proposed terms of release with Mr. Gamblen;
that OCAP does not have a formal membership list.
138The contents of the booking video shed a great deal of light upon what happened with the equipment that night and the dynamics between the officers and Mr. Gamblen. The video appears to be divided into six segments. In the third segment, Ms. Koyama is seen briefly crossing the booking area with officers, then the booking room appears to be empty for some time except for the booking sergeant.
139It is very clear upon watching the first twenty minutes of this portion of the video that none of the officers believed that the camera was recording – generally, it is only turned on to record a booking/lodging procedure. During this time period, the video showed no one for quite a lengthy period of time though a booking sergeant (not Sgt. O'Kane) could be heard moving around. At one point PC Antonelli came on camera and appeared to be discussing with that sergeant how to obtain a weekend pay duty.
140Mr. Gamblen then came into the camera's view, and took a seat on a chair just outside the booking area. He could be heard talking with an officer who was outside the camera's view range – I infer from the substance of the conversation that it was PC Hopkinson. He and Mr. Gamblen debated whether Mr. Gamblen committed the offences, with the officer taking the position that they were committed and Mr. Gamblen disagreeing. They then moved onto a broader debate that appeared to relate to various public policy issues including how police misconduct is assessed. PC Antonelli did not appear to be taking part in the discussion and could be seen walking across the booking area at one point, eating a sandwich.
141At some stage, Sgt. O'Kane joined the other booking sergeant. He seemed to be getting ready to begin the process of lodging Mr. Gamblen pending show cause. He got sketchy details from PC Antonelli about what had occurred at City Hall. PC Antonelli can be heard telling Sgt. O'Kane, sotto voce, that Mr. Gamblen acted "like a real tool", and then said, "they were all tools", presumably referring to the other protesters. My understanding of his comment was that he didn't think very highly of how the protesters behaved.
142At one point, it was made clear to Sgt. O'Kane that Mr. Gamblen had no prior record and had been offered a release, on non-association terms, and that he had refused to sign. Sgt O'Kane then asked PC Antonelli if Mr. Gamblen understood what he was doing, and PC Antonelli said "no". I inferred from this interchange and the sergeant's tone of voice that the sergeant was both surprised and concerned that Mr. Gamblen had turned down the option of release and I infer that his concern stemmed from what was to follow – the search, the lodging, and the subsequent court appearance. Though it is difficult to hear all of the conversation, it appeared that PC Antonelli told Sgt O'Kane that the detectives had discussed matters with Mr. Gamblen.
143Finally, once they were ready to continue with the lodging process, it sounded like an officer tried to turn the camera on. There was a discussion about what was happening with the camera, and someone concluded that it was already recording as the red light was on.
144I have outlined this footage in such detail because it sheds light on the dynamics at play. Throughout, including in the debate unfolding with Mr. Gamblen, the officers sound matter of fact and calm. Even when PC Antonelli told Sergeant O'Kane that the protesters had acted "like tools", he sounded dispassionate. One of the officers who testified in this trial had commented upon the fact that dealing with protests were a common occurrence for the officers at 52 Division, given the station's location, and this on camera behaviour supports that position – this was simply a routine occurrence.
145The fact that the officers sounded both surprised and puzzled that the camera was already recording leads me to conclude that the machinery was operating in an unusual manner that day and that is one factor that leads me to conclude that the brief gap on the video was simply an unexplainable "blip" that in no way pertained to officer malfeasance or negligence. I also note that it appeared to be only a few seconds in length, given the continuation of the dialogue once recording resumed.
146Further, I accept the officers' evidence that no one present was seen to tamper with the equipment nor did any of the officers personally do so.
147I also have considered the fact that the "blip" occurred at the point at which Mr. Gamblen claims the comment was made but I do not find that fact to be inherently suspicious; in fact, it would only be "suspicious" if I accepted that Sgt O'Kane said the alleged comment.
148I have previously outlined my concerns regarding Mr. Gamblen's credibility. These concerns apply to my assessment of this portion of his evidence as well and I reject his contention that this comment was made.
149I also reject his evidence given the demeanour of all concerned a few seconds later when the recording resumes. All appears to be "business as usual" and there is not a hint of a change in manner. Mr. Gamblen said that his demeanour did not alter because he was in a state of shock but I do not accept that evidence.
150I also reject his evidence on this point given the video footage outlined above. It is illustrative because it captures the manner of all concerned when they did not think they were being filmed and thus were not necessarily on their "best behaviour" for the benefit of the camera. Such a comment would be totally out of sync with the attitudes caught on camera during the unexpected footage. Further, as I have already outlined, Sgt. O'Kane sounded concerned about Mr. Gamblen's decision not to sign his release papers.
151Further, I reject Mr. Gamblen's evidence that PC Antonelli was eating a piece of cake during the strip search. The room in which strip searches are conducted can be seen on the booking video though for privacy reasons the door is closed during the search and the proceedings inside are not filmed. PC Antonelli can be seen placing disposable plastic gloves on before entering the room with Mr. Gamblen. I find it simply unbelievable that he also took in a piece of cake to eat during the process and I accept the officer's evidence that this did not happen.
152I now move to the discussion of bail terms. I reject Mr. Gamblen's evidence that the discussion was very brief, and that the officer was dismissive about the problems this would cause him with Ms. Ingle. I make this finding having considered my previous concerns with Mr. Gamblen's overall credibility and given that it makes no sense that the officer would respond in this fashion as exceptions for contact with intimate partners and family members are standard on these forms of release.
153Further, I found Detective Shankaran to be a credible and intelligent witness who gave his answers in a careful and thoughtful manner. I reject Mr. Gamblen's evidence that the officer was summarily dismissive of Mr. Gamblen's concerns and I accept the officer's evidence that he took some time to explain the ramifications and meaning of the proposed bail. Further, I accept the officer's evidence that it was Mr. Gamblen who was dismissive in the sense that he failed to elaborate upon his concerns when asked and that he did not raise his relationship with Ms. Ingle.
154It is also clear from the evidence that it is impossible to determine what the precise wording of the term would have been as I accept that Detective Shankaran never actually drafted the clause. I accept that there was no point in doing such a draft as Mr. Gamblen's lack of agreement was clear. I find that Mr. Gamblen had no intention of responding in a manner that could be construed as "cooperative" in his communications with the officers. I make this finding based upon given the tenor of the earlier proceedings and his earlier behaviour.
155I accept the evidence of all of the defense witnesses that OCAP does not, to their knowledge, have an official membership list.
Application of the Law to the Facts Regarding the Alleged Charter Breaches
The Lost Evidence Application
156The SCC outlined the principles applicable to lost evidence in R v La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97. These principles were succinctly summarized by the Nova Scotia Court of Appeal in R v F.C.B., [2000] NSCA 35. For the purposes of this application, the relevant points in that summary are the following:
(1) The Crown has an obligation to disclose all relevant information in its possession;
(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence;
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence;
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached;
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it;
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights;
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
157I find that the missing portion of the video would be relevant, if it existed, given that it is during that portion that Mr. Gamblen contends the comment occurred.
158What is interesting in this case, however, is that the evidence was never "lost"; instead, it never existed. I have found that it was an unexplainable glitch in the video equipment that led to the failure to record. In essence, then, the "hard evidence" of this portion of Mr. Gamblen's interaction with the police was never created.
159I am not aware of any cases that place a positive duty upon the police to "create" such evidence. In any event, applying the principles summarized in F.C.B., I find that the Crown has provided a satisfactory explanation for the failure to record, and I find that this explanation does not amount to unacceptable negligence. I reject the defence contention that negligence flowed from allowing officers to operate the equipment who were self-described "computer cavemen".
160It should be self-evident from my preceding comments that this is not a case that meets the residual test outlined in paragraph 9 above. This is not an extraordinary case in which Mr. Gamblen has been so prejudiced in relation to his right to make full answer and defence such that there should be a stay absent such unacceptable negligence.
The Unlawful Detention Application
161Mr. Gamblen contends that his section 9 rights were breached because he alleges that Detective Shankaran did not have the authority to impose the disputed release term thus his detention which flowed from his refusal to sign was unlawful. As Mr. Gamblen's refusal to agree with the term meant that an actual bail was never drafted, I do not know how the actual term would have read. Broadly speaking, however, the officer asked Mr. Gamblen if he would comply with a term that he not associate with any members/supporters/associates of OCAP.
162Sections 498 and 503 of the Criminal Code are the governing sections. Section 498 outlines the officer release powers when a person is arrested without a warrant. Section 503 essentially mandates that a person under arrest is to be taken before a justice within 24 hours unless an officer determines that the person can be released. Section 503(2.1) outlines the terms that an officer has the power to include in a so-called "11.1 release". Relevant for these purposes is section 503 (2.1)(c) which allows an officer to require that the arrested individual not communicate with various people.
163In this instance, it is clear from the evidence that Detective Shankaran determined that in order to prevent the repetition of the offences with which he was charged (see section 498 (1.1)(iii)), Mr. Gamblen should not communicate with others connected to OCAP (see section 503(2.1)(c)). It is also clear that Detective Shankaran would have drafted a section 11.1 release including a term along that line but for Mr. Gamblen's refusal at the outset to agree to such a term.
164One question is whether Detective Shankaran had reasonable grounds to believe that such a term was necessary to prevent the repetition of these offences or other offences.
165I accept the officer's evidence that he had the subjective belief that such a term was necessary. He has worked for some time in 52 Division which deals frequently with protests. Through that prior history, he has come to the belief that certain individuals are connected to OCAP and he saw a number of those individuals in the TV clips of the protest.
166I also find that his belief was objectively reasonable. A reasonable individual would find it appropriate that the officer rely on his prior knowledge, and the knowledge of other 52 Division officers. Further, an objective basis to conclude that OCAP was connected to this protest has also been established by the evidence admitted at this trial. Exhibit 11 is a copy of a poster publicizing the protest and it lists OCAP as one of the organizing groups. Further, all of the defense witnesses have connections with OCAP, to varying degrees. Mr. Gamblen acknowledged that it may have been through his inclusion in a mass OCAP email list that he learned of this protest. Ms. Ingle recalled Ms. Lisa Schofield "from OCAP" making an announcement at one point in the council chamber. Ms. Koyama identified OCAP as one of the groups involved in organizing the event.
167Given OCAP's crystal clear connection to this event, and Mr. Gamblen's own admitted involvement in OCAP activities, Detective Shankaran's view that a term that Mr. Gamblen not associate with OCAP "members" or associates in order to prevent his involvement in further offences of this nature was objectively reasonable.
168Mr. Charney also argues that Detective Shankaran's actions were unreasonable because it would be impossible to fashion an enforceable term given the impossibility of identifying a "member" of OCAP. This argument fails for a number of reasons.
169First, Detective Shankaran never reached the point of drafting the term given Mr. Gamblen's outright refusal to comply. It is therefore impossible to determine how the final term would have been drafted.
170Secondly, it is not clear that such a term, however it was crafted, would not be unenforceable despite the absence of a formalized membership list. How it would be proven if a breach were alleged would be for the Crown to assess and ultimately for a court to determine but on the basis of the evidence before me it is not a given that this would be impossible. I note, for example, Ms. Ingle's own distinct reference to Ms. Lisa Schofield as someone "from OCAP". That very phraseology suggests that it is possible to determine if someone is part of OCAP.
171Thirdly, the fact that there may be difficulties with proof at trial does not lead to the conclusion that the officer acted unreasonably. Detective Shankaran is not held to the standard of certainty beyond a reasonable doubt that non-compliance with a given term can be proven in court. In fact, to hold officers to such a standard would fly in the face of the purpose of the release provisions. The clear intention is that such sections operate to avoid detentions any longer than necessary. If officers were required to go to the extent of determining, for example, the organizational structure of OCAP, whether formal membership lists exist, whether membership can be determined absent such lists, etc., then the time required for such an investigation would necessitate that people be held in custody far longer than is intended by the sections. The "reasonable belief" of the officer, assessed both objectively and subjectively, must be done in the context of the fast timelines and decisions envisioned by the release provisions.
172In any event, the appropriate forum for a challenge to the detective's decision is also laid out in the Code in section 503(2.2). Once Mr. Gamblen signed the recognizance, he could at any point apply to a justice to alter the order and delete the non-communication term. I appreciate that Mr. Gamblen undoubtedly was unaware of this procedure but his lack of knowledge does not lead to the conclusion that the officer acted unreasonably or outside of his lawful authority by requiring that he comply with such a term.
The Level Three Search
173I find that the Level Three Search was reasonable in the circumstances.
174Mr. Charney argues that is was unreasonable because (1) Mr. Gamblen was not lawfully in custody at the time; (2) he was subjected to abusive comments; (3) the officers failed to follow TPS policy and did not make proper records of the search in their notes; (4) there was no lawful reason for the search.
175I will deal briefly with the first three points, and deal in more detail with the final point.
176As I have found that Mr. Gamblen was lawfully in custody at the time and that no abusive comments were made, the first two branches of the argument fail.
177I find that the officers did follow TPS policy in the conduct of the search and, more specifically, I have already found that PC Antonelli was not eating cake during the search process. Three exhibits were entered relating to the search – the TPS "Search of Persons" policy, Appendix B to that policy (relating to Level Three searches), and the Search of Person Template relating to Mr. Gamblen. The policies state that officers shall record full details of the search in their memo books. PC Hopkinson admitted that he had failed to do that in this case but also gave a reasonable explanation for the failure – he thought Mr. Gamblen was going to be released, and had already finalized and copied his notes for disclosure purposes once matters changed course. In any event, the fact that the officer failed to make this record does not make the search itself unreasonable.
178I turn to the reasonableness of requiring the search in the circumstances. The SCC outlined the principles to be balanced and factors to be considered in R v Golden, 2001 SCC 83 (CanLII), [2001] S.C.J. No. 81. The Court recognized the very intrusive nature of such searches, and the humiliation, degradation and trauma often experienced by those subjected to such searches (para. 83). I find that the officers in this case behaved totally appropriately but I also fully accept that this was a horrible experience for Mr. Gamblen. The fact that such searches are so intrusive and degrading underscores the importance of ensuring that they are only carried out when necessary and not as a mere matter of routine policy (para. 90).
179The Court held that strip searches withstand Charter scrutiny only if they are incident to a lawful arrest, and are for the purpose of locating weapons or evidence related to the arrest. Once these preconditions are met, the search itself must be conducted in a reasonable manner (para. 99). Regarding weapons, ordinarily a pat down search at the scene will suffice (para 94).
180The Court in Golden was dealing with facts involving a strip search that began immediately after arrest in a public stairwell. The Court acknowledged, however, that there are safety concerns in a prison setting that heighten the need to make sure people are not carrying weapons or concealing drugs when entering the general prison population (para. 96).
181It is clear that both Detective Shankaran and Sgt O'Kane, who ultimately authorized the level three search, felt that it was justified. I also find that it was objectively reasonable. The fact that Mr. Gamblen was being held for a bail hearing meant that he would be entering the general prison population en route to and at the College Park courthouse. The need to ensure that he had no weapons or drugs in his possession was greatly enhanced. Clearly nothing in the preceding events suggested any issue with drugs but the fact that he was under arrest for crimes of violence certainly added to the need to ensure that he had no weapons. The fact that there was no suggestion of a weapon at the scene and that none were found during the pat down search is not sufficient to allay concerns given the increased need to ensure the safety of others when he both entered the general prison population and then had contact with personnel at the court who, unlike the officers, were unarmed.
Conclusion
182The Charter applications are dismissed. Counts one (mischief) and count five (assault on PC Hopkinson and PC Ong during Mr. Gamblen's arrest) are dismissed. I find Mr. Gamblen guilty of count three (assaulting/pushing PC Hopkinson) and count four (obstruct police).
Released: November 25, 2013
Signed: "Justice K. Caldwell"
