Court File and Parties
Ontario Court of Justice
Her Majesty the Queen
v.
Wesley Ollson
Before: The Honourable Justice M.S. Felix
Location: Oshawa, Ontario
Appearances
P. Perlmutter – Counsel for the Crown
W. MacKenzie – Counsel for Mr. Ollson
Judgment at Trial
WEDNESDAY, MAY 30, 2018
THE COURT: Thank you. Good afternoon. I will render my judgment at this time. I will say at the outset if this decision is ordered, I reserve the right to make editorial changes that do not affect the content. Second of all, I may miss cites and I reserve the right to put those cites in the decision as well.
FELIX, J: JUDGMENT AT TRIAL (Orally):
I. INTRODUCTION
1This case turns on the legal issues of reasonable grounds, exigency, and use of force.
2On April 5, 2017 in the late evening, a person reported a domestic incident in progress via the non-emergency police phone number at a particular address in Keswick, Ontario.
3The defendant, an on-duty police officer, was one of several uniformed patrol officers dispatched to attend the domestic disturbance.
4During the investigation the defendant identified a male party (known in this judgment as the complainant) and his female domestic partner as the persons involved in the domestic incident.
5The defendant entered the residence and arrested the complainant for assault. The complainant resisted the arrest. The defendant broke the complainant's jaw. The defendant was later charged with the summary conviction offence of assault causing bodily harm.
II. FACTS
6At the outset, findings with respect to some foundational facts will help frame the issues in this trial.
7The complainant, his mother, and his domestic partner resided together at the residence in Keswick.
8The defendant received extensive background information about the complainant via police dispatch and his police computer while on route to the complainant's address.
9The defendant was the first unit to reach the address. He had intended to park a distance away and attend the address on foot so that he could listen and determine if anyone was in immediate danger, but he overshot the address and ended up right at the foot of the complainant's driveway.
10At the foot of the driveway, the defendant encountered a female. There was an unknown male consuming alcohol at the top of the driveway. The defendant initially believed that these two individuals were the subject matter of the domestic call. He determined to keep the two parties separate and investigate the domestic incident.
11The female party was uncooperative with the defendant. In addition, when questioned, she denied any domestic incident had occurred. The male at the top of the driveway did not speak or involve himself in the discussion.
12The defendant approached the residence with the female and noted that a wooden gate with a padlock that had been open when he arrived was now closed and locked. Shortly thereafter, the defendant noted a second male person. This male person was crouched as if hiding behind the locked fence. At this juncture, the defendant became aware that the female's domestic partner was not the male on the front porch, but the male crouched in the back yard behind the fence. It is this male who became the complainant in this case.
13The defendant requested that the gate be opened so that he could continue his investigation, and I find for officer for safety reasons. The complainant's domestic partner was willing to open the gate, but no one was able to immediately produce a key to unlock the padlocked gate. Ultimately, the complainant's domestic partner went into the residence to obtain the key for the padlocked gate.
14The complainant remained behind the gate, and interacted with the defendant. He was uncooperative with the defendant. He swore at the defendant. He refused to take his hands out of his pockets at the direction of the defendant for the purpose of determining if he had access to weapons.
15The complainant then started to move away from the gate to the rear of the residence around a corner out of sight of the officer. He did not comply with the officer's requests to show his hands. He did not comply with the defendant's express direction to stay still at the gate. The complainant was animated, loud and aggressive with the defendant as he moved to the rear of the residence.
16In addition, the complainant's mother, who was initially at the side porch, was also within the residence.
17At this point, the defendant recognized that both the complainant and his domestic partner were out of his sight and out of his control. The defendant became concerned about the circumstance and the risk presented by the complainant and his domestic partner, the subjects of the domestic call being together.
18He reasoned that there would be access to the residence via another entryway accessible to the backyard where the complainant went out of his sight. Given the criminal background and domestic history of the complainant, the defendant determined that it was likely that all three parties were within the residence, and that there was a risk presented by the complainant, specifically, the defendant became concerned that the complainant and his domestic partner would come in contact with each other via the rear of the residence.
19The defendant testified that he made the decision to enter the residence after waiting between 30 seconds and one minute. Upon entering, he moved immediately to the rear of the residence where there was a bedroom. He encountered the complainant entering the residence through a rear sliding door providing access to this rear bedroom. The complainant's domestic partner was also in the room.
20The defendant arrested the complainant in the rear bedroom for assault.
21The defendant was in the process of leading the defendant out of the residence when the complainant resisted the arrest. There was a struggle. During that struggle, the defendant punched the complainant in the face several times. The complainant ultimately suffered a broken jaw.
22A portion of the defendant's interaction with the complainant was captured by the complainant's domestic partner using a cellphone camera.
III. ISSUES
23This case was professionally litigated by two experienced lawyers. It was evident that extensive preparation had occurred. At the outset of the prosecution a large volume of material was filed on consent in support of several admissions. The approach of counsel should be emulated by other counsel, particularly given the ever-present pressures on the criminal justice system. Thanks to work of counsel, the Court was well positioned to focus on the three issues to be litigated:
Did the defendant have reasonable grounds to arrest the complainant?
The defendant entered the residential premises during this investigation. Were there exigent circumstances?
Was the force used by the defendant justified?
IV. POSITION OF THE PROSECUTION
24General Counsel, appearing as the prosecutor on this case, responsibly focused the court on the first issue, reasonable grounds, arguing that this was the gateway to resolving the other legal issues. The prosecution argued that the defendant did not have reasonable grounds to arrest the complainant. The prosecutor did not press the other two issues. The prosecutor conceded that if the Court found the defendant had reasonable grounds, a finding of exigency was, at minimum, available. Finally, the prosecution conceded that if the Court found the defendant had reasonable grounds, the prosecution could not establish unreasonable force to the criminal standard on the record at trial. In my respectful view, these were proper concessions to make based on the record in this trial.
V. POSITION OF THE DEFENDANT
25Defence counsel argued that the defendant had grounds to arrest the complainant. The grounds asserted by the defendant were objectively sourced in the information provided to the defendant by the police dispatcher and the subsequent investigation, including the conduct of the complainant.
26The defence argued that the defendant had a duty to investigate the circumstances of the domestic incident. The defendant was faced with a difficult choice when both the complainant and his domestic partner were out of his sight. He entered the residence under exigent circumstances to protect the complainant's domestic partner in furtherance of his duty as a police officer.
27Finally, the defence submitted that the force used by the defendant was proportionate to the threat and the circumstances posed by the complainant and his conduct.
VI. DECISION
28For the reasons that follow, I find the defendant not guilty.
29I find that the defendant was lawfully acting within the limits of his duty as a police officer and the ancillary duties imposed by the York Regional Police Service directives around the approach to investigating domestic violence.
30I find that the defendant had reasonable grounds to arrest the complainant.
31I find that the circumstances were manifestly exigent.
32I find that the force used by the defendant was not disproportionate to the threat posed by the defendant in the circumstances.
VII. FACTUAL FINDINGS
A. Credibility, Reliability, and the Burden of Proof
33Credibility is a central issue in this trial. Court's analyze credibility and reliability on a daily basis, but this case requires me to display my reasoning for the public given the defendant's status as a witness employed as a police officer.
34First, as in every criminal case, the prosecution must prove the defendant's guilt beyond a reasonable doubt. Any doubt must be resolved in favour of the defendant.
35Second, I am guided by W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) where the Court endorsed the following analysis concerning credibility and the criminal burden of proof:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
36Third, a court may believe all, none or some of a witness's evidence. See R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; R. v. Hunter [2000] O.J. No. 4089 (C.A.) (QL) at para. 5; R. v. Abdallah 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.) (QL), at paras. 4-5.
37Fourth, a court is entitled to accept parts of a witness's evidence, reject other parts, and determine the appropriate weight to accord to different parts of the evidence: See R. v. Howe 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) (QL), at para. 44.
38Fifth, a determination of guilt or innocence must not devolve into a mere credibility contest between two witnesses or a choice between competing narratives one lead by the prosecution the other by the defence. This approach would negatively impact the presumption of innocence and the criminal standard of proof: See W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56 (CanLII), 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87.
39Sixth, having regard to the principles in W.(D.), mere disbelief of the accused's evidence does not equate to criminal liability. It is an error to move directly from mere disbelief of the accused's evidence to positive proof of guilt: See R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont.C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.) (QL), at paras. 4-6.
40Finally, the defendant, with great respect, is not entitled to a finding of enhanced credibility simply because of his employment as a police officer. His evidence is to be assessed in accordance with the same standard applied to all witnesses. His evidence is to be assessed just as every defendant's evidence is assessed in a criminal trial. That being said, the defendant is a police officer with some 17 years experience. As outlined further in this judgment, the analysis of the legal issues in this case did cause me to rely to a degree on his experience as a police officer, his common law duty, his statutory duty, and the directives he is required to follow as a York Regional Police Officer.
B. Reasonable Grounds
1. Finding
41I find that the defendant possessed reasonable grounds to believe that the complainant had committed a criminal offence and that he was lawfully investigating the circumstance.
2. The Law
42The following considerations inform an assessment of reasonable grounds:
A peace officer may make a warrantless arrest where he or she believes on reasonable grounds that the subject has committed an indictable offence or is about to commit an indictable offence. S.495(1) of the Criminal Code of Canada.
The assessment of reasonable grounds has both a subjective and objective component.
The subjective component involves assessing whether the police officer honestly believed the subject committed an offence: See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.J. No. 12, at para. 16 (Storrey); R. v. Canary 2018 ONCA 304, at para. 21 [Canary]; R. v. Scairagic, 2017 ONCA 91, leave to appeal ref'd, [2017] S.C.C.A. No. 106, at para. 16 Scairagic to the Supreme Court of Canada at para. 16 [Scairagic].
The objective component involves assessing whether or not the police officer's asserted honest, subjective belief is objectively reasonable based on the information known to the police officer at the time: See Storrey, at para. 17; R. v. Notaro 2018 ONCA 449, at para. 34; Canary, at para. 21 [Notaro]; Scairagic, at para. 16; R. v. Bush, 2010 ONCA 554, at para. 38 [Bush].
The objective assessment involves asking whether a reasonable person, standing in the shoes of the police officer, would have believed that reasonable grounds existed to arrest: See Storrey, at paras. 16-17; R. v. Gundy 2008 ONCA 284, at para. 42.
Imperative to the objective assessment is an appreciation of the police officer's training and experience. As Justice Moldaver explained in R. v. MacKenzie, 2013 SCC 50, at paras. 62-63 [Mackenzie]:
"Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police. Sights, sounds, movement, body language, patterns of behaviour and the like are part of the officers' stock and trade and courts should consider this when assessing whether their evidence in any given cases, passes the reasonable suspicion threshold. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the "shoes of the police officer." (See also R. v. Wu, 2015 ONCA 667, at paras. 51-52 [Wu].)"
I draw the same approach to reasonable grounds as that outlined by Justice Moldaver with respect to reasonable suspicion in this regard.
A police officer is entitled to draw inferences and deductions based on experience. See R. v. Censoni, at para. 36.
Quoting MacKenzie at para. 73: "Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not and indeed must not, devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer."
The objective assessment requires a fact-based contextual analysis of the totality of circumstances, rather than parsing and dissecting the evidence piecemeal: Mackenzie at para. 64; Bush, at paras. 54-55; R. v. Lawes, 2007 ONCA 10, at para. 4; R. v. Williams, 2009 ONCA 35.
Quoting from Mackenzie, S.C.C. at para. 60: "It is to be remembered that the concept of reasonable and probable grounds resides in a continuum of standards of proof within the criminal justice process:" R. v. Censoni, at para 29 cited with approval by Mackenzie at para. 60.
The assessment of reasonable grounds does not necessarily involve critiquing the quality of the investigation, the thoroughness of the investigation, or the range of subjective questions that guided the investigation: Notaro, at para. 34; Bush at para. 70.
Reasonable grounds do not require the police officer to establish a prima facie case or proof beyond a reasonable doubt but there must be more than mere suspicion: Mackenzie at para. 60; Storrey at para. 17; Wu at para. 49.
A police officer may rely on hearsay information: Mackenzie at para. 61; Censoni at para. 57.
Quoting R. v. Mackenzie at para. 72: "Exculpatory, common, neutral or equivocal information should not be discarded when assessing a constellation of factors…We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances?"
3. Analysis of Reasonable Grounds
43The prosecutor focused on the subjective component rather than the objective component of the grounds in this case. He responsibly acknowledged that this was a difficult argument on the record in this case. I agree with this assessment.
44I accept the evidence of the defendant. I find that he honestly possessed the requisite grounds, and I find that these grounds are objectively sustainable.
45I find that the defendant's grounds were sourced in a combination of overarching "macro" considerations associated with his duty as a police officer, and specific "micro" considerations specific to the incident he was investigating.
(a) Overarching Considerations
46I find that the defendant relied upon the following considerations:
The defendant had a 17 year history as a police officer and possessed experience derived from many domestic-related investigations that he had conducted on an almost daily basis.
The defendant believed that he was bound by his common-law and statutory duty to investigate. (See s.42 of the Police Services Act (Ontario).)
The defendant understood that York Regional Police Services directives mandated that domestic-related calls required at least two units and a supervisor to attend given the challenging circumstances commonly encountered in domestic investigations.
While the defendant had not memorized the York Regional Police Directives around domestic violence, he demonstrated a good understanding of those directives and testified that there was a resultant impact on his investigative approach and his grounds including:
i. The defendant believed that he was to investigate domestic-related incidences as if they were "life-threatening" as per the directives [See Section C.1].
ii. A decision concerning charges was not to be influenced by a denial by either party that violence had occurred. [See Section 14.f]
iii. The investigating officer was required to immediately separate and speak with each involved person and witnesses. [See Section 4.f]
iv. Where reasonable grounds existed, the investigating officer must charge the suspect. [See Section 6.a]
47These central considerations related to the defendant's employment as a police officer. They provide needed context and they informed his subjective grounds specific to the incident that he was investigating.
(b) Grounds Specific to the Incident
48I find the defendant possessed grounds sourced from the specific circumstances and the evolution of the incident that he was investigating.
(1) The Content of the Emergency Call
49The defendant did not receive the emergency call from the neighbour directly, but he was aware of the identity of the caller, that the caller was a neighbour, and the content of the call. He was aware that the caller had identified the complainant and his domestic partner specifically. Finally, the caller reported that a female was screaming "stop throwing things at me."
(2) The Police Dispatcher
50The defendant received an extensive record of information concerning the complainant and his domestic partner prior to even attending the call. Exhibits 4 and 6 exemplify a very detailed and thorough transmission of information by the police dispatcher to all of the attending officers. The information included: the complainant's extensive and varied criminal record including convictions for assaultive behaviour, his police designation as high risk and violent, his mental health history, and his domestic-related history, in a lengthy and detailed dispatch record. I accept that the defendant received this voluminous and detailed background information, both via dispatch and in bulleted points on his police computer. I find that any objective review of that information would support the view that the complainant presented a serious safety concern particularly in a domestic incident.
(3) The Demeanour of the Complainant's Domestic Partner
51The complainant's domestic partner was extremely uncooperative upon first contact with the defendant. Having been educated by this witness at trial as to some background, I can as the trial judge perhaps understand her frustration and her reaction to police attendance. There was an ongoing issue with a neighbour, the police had been called many times on both sides of the dispute. But the defendant did not know about these circumstances. He deemed the caller to be credible.
52The defendant was presented with a suspected victim who was hostile, uncooperative and demanding. She yelled at the defendant, challenged him with questions about who had called the police, and was generally verbally combative. The defendant could smell alcohol on her breath yet she lied (in his view) and maintained she had not consumed any alcohol. This was notwithstanding his assurance that it was not a crime to consume alcohol at a residence.
53I cannot quarrel with the defendant's decision to place little weight on the content of the denial provided by the complainant's domestic partner.
(4) The Defendant's Investigative Obligations
54The defendant did not believe the complainant's domestic partner's denial that "nothing was going on" or that things were not being thrown around.
55I accept that based on the defendant's training and experience, it was not unusual for a domestic violence victim to deny assaultive behaviour or otherwise try to protect the suspect. I accept that the defendant did not believe that he was entitled to clear the scene based on a simple denial from an uncooperative complainant, given his sworn duty as a police officer and his services directives. In fact, had he cleared the scene from the foot of the driveway, I suspect another type of proceeding would have been the result. The defendant has a positive duty to investigate further. No knowledgeable person in the criminal justice system could find otherwise.
(5) The Gate
56When the defendant arrived at the scene, the gate to the backyard was open. The complainant's domestic partner was taking garbage out to the curb at the foot of the driveway.
57The defendant believed that the gate had been locked deliberately for some unknown reason. Later on the defendant suspected the gate had been locked to impede the police investigation.
(6) The Complainant Tried to Hide at the Gate
58When the defendant approached the locked gate, he was alerted to the complainant crouched down behind the gate. The complainant was trying to hide from the defendant.
(7) The Complainant Would Not Show His Hands
59The complainant would not remove his hands from his sweatshirt. I accept that the defendant could not rule out the presence or absence of a weapon, and I accept that this was a legitimate concern on the part of the defendant given the background information about the complainant conveyed to him.
(8) The Complainant's Demeanour
60The complainant was swearing at the defendant, verbally aggressive and generally uncooperative with the defendant while at the gate.
(9) The Complainant Did Not Remain at the Gate
61The defendant and the complainant remained at the gate for a short period of time while awaiting the complainant's domestic-partner's return with the key to the gate. The defendant was on one side of the gate, the complainant was on the other side.
62The complainant was directed by the defendant to remain at the gate. He was not cooperative. He told the defendant to "fuck off" and moved away from the gate to the rear of the residence.
(10) The Complainant and His Domestic Partner Were Out of the Defendant's View
63The complainant's domestic partner entered the residence to obtain the key for the padlocked gate. The complainant refused to follow the direction of the defendant and remain at the gate. The defendant could not open the locked gate without a key, he therefore could not properly communicate with the complainant in the backyard nor could he properly investigate the allegations. The complainant refused to present his hands to the defendant. Then the complainant moved away from the gate area to the rear of the residence. Thus, both the complainant and his domestic partner were out of the defendant's view and control.
(11) The Reason for Entering the Residence
64The defendant waited between 30 seconds and one minute before telling another attending police officer that they had to enter the residence and he was going in. My objective review of the subjective perceptions held by the officer, focus on this critical time frame. In my respectful view, the defendant reacted immediately to volatile circumstances where a non-compliant complainant, the identified suspect, and his uncooperative domestic partner were no longer subject to his control, and could not be seen. Cognizant of the background of the complainant, the defendant had no idea if the defendant was armed or what his current intentions were concerning his domestic partner. Charged with a duty to investigate these circumstances as a life or death event, the defendant made the split decision to go into the residence. There is no evidence that any other police officer gave pause to this course of action or challenged this course of action.
65There is no doubt that the defendant could have simply waited at the side door, porch area. Perhaps this would have been appropriate if either or both parties were cooperative with the defendant. But given the demeanour of both parties, the defendant's experience investigating domestic incidents, and the dynamic circumstances, he made the decision to go into the residence. I accept that he honestly believed that the complainant presented a risk to his domestic partner.
66Further to my objective assessment of the circumstances, I ask myself: Had the defendant simply remained by the porch and had the complainant committed criminal acts against his domestic partner in that interim period, the defendant would have been justifiably criticized for leaving a suspect and the suspected victim together. The full record of information provided to the attending police officers would have been fodder to question a negligent approach to a domestic incident investigation in my view.
(12) Encountering the Complainant
67Upon entering the residence, the defendant moved towards the rear of the residence and observed the complainant in a rear bedroom proximate to a sliding door. He also observed the complainant's domestic partner was in close proximity to him. The complainant moved quickly out of the sliding door and then came back into the bedroom, such that the defendant was startled and concerned about that action and the presence of a weapon. The complainant was arrested for assault and told it was domestic-related. Both the complainant and his domestic partner questioned the defendant concerning his grounds for the arrest. I accept the defendant's evidence that the bedroom was not the arena for this debate. He escorted the complainant out of the bedroom with one hand on his arm.
4. Conclusion
68The defendant had reasonable grounds to arrest the complainant based on the detailed contents of the call to the police and the information provided by the police dispatcher. The defendant accepted the hearsay information from the emergency call and believed he was obligated to investigate the assaultive behaviour. The caller had specifically identified the complainant and his domestic partner. Both of these persons were uncooperative with his investigation.
69The conduct of the complainant and the complainant's domestic partner amplified the circumstances. The complainant's domestic partner was hostile, uncooperative and untruthful in his view. The defendant was justified in ignoring her denial of any criminal event. The gate was padlocked, which the defendant perceived to be obstructive. The complainant was crouched down, hidden behind the gate. He refused to show his hands and did not remain in view of the officer when directed.
70When the defendant encountered the complainant within the residence, he was appropriately concerned about a weapon, given the quick in and out movement of the complainant near the sliding door.
71For all of these reasons, I endorse the defendant's honestly held subjective view that he had grounds for arrest. This view is objectively sustainable on the record at trial.
72In addition to my finding that the defendant had the requisite grounds for arrest, I find that there were exigent circumstances justifying his entry into the residence.
C. Exigent Circumstances
73The prosecution concedes that if there were grounds for arrest, there is at least some support for a claim of exigency. I agree. Based on my findings in this case, I am satisfied that there were exigent circumstances justifying the entry into the residence.
1. The Law
74In R. v. Kelsey, [2011] ONCA 605 at para. 34, Rosenberg J.A. provided guidance on the legal standard applicable when exigent circumstances are relied upon to justify a search for the purpose of protecting the public:
- I should not be taken as having held that reasonable grounds are required in other circumstances where the exigent circumstances doctrine is invoked to justify a search for the purpose of protecting the public or police officers. It may be that a lesser standard, such as articulable cause or reasonable suspicion, as codified in s.529.3(2)(a), will be appropriate in some circumstances. Thus, see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.) at p. 759.
75The reasonable suspicion standard has been endorsed by several persuasive courts: (See R. v. Bruyere, 2012 ONCA 329; R. v. Athwall 2017 ONSC 133, at para. 173; R. v. Powell 2017 ONSC 6482, at paras. 50-55; and R. v. Moulton 2015 ONSC 1047, at para. 116.)
2. Finding: Exigency
76Context is critically important to the assessment of the circumstances in this case.
77As a Judge I have had the luxury of time, the assistance of two excellent lawyers and an investigative team supporting the prosecution to give me a clear understanding of the circumstances that night – the proverbial 20/20 hindsight vision.
78I have to remember that the defendant did not have this luxury. He and the other attending officers supporting him, encountered a dynamic, volatile situation fraught with risk. It should not be forgotten that when the defendant entered the residence, he did so at extreme risk to his safety. He did not know what other circumstances he would encounter within the residence.
79It is evident to me that the defendant understood the rarefied concept of exigent circumstances. Not only did he articulate a lawful basis for entering the residence, his conduct on the night in question exemplified his understanding. First of all, the defendant was content to remain outside the residence and investigate with the complainant on the other side of a locked gate at first. This situation posed some obvious risk for the defendant. He could not physically control the complainant. The complainant was non-compliant, and the complainant would not show his hands. Notwithstanding this officer-safety concern, the defendant did not resort to more intrusive steps such as breaking the gate down, jumping over the gate or pepper-spraying the complainant, thereby escalating the situation. Second, in the aftermath of the arrest and injury of the complainant, the defendant re-attended the side door for the purpose of retrieving police property that he had dropped inside the residence. He was denied entry by the complainant's domestic partner. It is notable that he did not attempt to force his way into the residence. He understood that exigent circumstances had expired, and he had no lawful basis in exigency to retrieve police property.
80Given the record outlined in this judgment, I find that the defendant properly relied upon exigent circumstances. He did not enter the residence for the purpose of arresting the complainant alone. He entered the residence out of a legitimate concern for the safety of the complainant's domestic partner. It was objectively reasonable to be concerned that the complainant might commit a criminal offence or continue a criminal offence against his domestic partner.
81The defendant's asserted subjective perception meets the reasonable suspicion standard for public safety concerns. His purpose was to prevent the commission of or the continuation of assaultive conduct. All of this was in satisfaction of his subjective belief that his investigative duty as a police officer mandated this approach.
D. Use of Force
82The prosecutor conceded that if the arrest was held to be lawful, the prosecution could not establish the force used was excessive. I agree. I find that the issue turns on my findings of fact, my assessment of credibility, and my evaluation of the cellphone video captured by the complainant's domestic partner.
1. Findings of Fact
83I have absorbed the evidence of the witnesses at trial, and watched the cellphone video exhibit in particular. I make the following findings with respect to the use of force:
i. The complainant was not handcuffed when arrested in the rear bedroom;
ii. The defendant had physical control of the complainant's arm and led him from the rear bedroom, down the hallway to the front of the house;
iii. At the front hallway area, the complainant tensed up, squared his body with the defendant, and faced the defendant as if he was going to fight;
iv. The defendant tripped the complainant to the ground;
v. The defendant held the complainant down, giving verbal commands, and attempted to handcuff the complainant;
vi. The defendant did not strike the complainant while he was standing;
vii. The complainant was physically non-compliant with the defendant and would not permit the defendant to handcuff him. This conduct included generally struggling with the defendant, grasping the defendant's neck area, and grasping the defendant's police vest;
viii. When the defendant was able to get one handcuff on the complainant, the other handcuff remained exposed as a potential weapon; and,
ix. The defendant struck the complainant on the side of his face more than once. The first strike coincided with the complainant's hand visibly grasping the neck area of the defendant.
2. Findings Regarding the Use of Force
84I believe the evidence of the defendant concerning the number of strikes to the face, the purpose of those strikes, and when they occurred. It is on this third legal issue that the credibility of witnesses is most pronounced.
(a) Credibility of the Defendant
85To be blunt, I found the defendant to be a credible and reliable witness.
86There were only a few minor inconsistencies in his notes, his written reports or his S.I.U. statement. None of these inconsistencies caused me to doubt his credibility or his reliability.
87In court, I found the defendant answered questions directly, completely and responsively.
88Were there some basis to criticize the defendant as a witness, I assure the parties I would not hesitate to do so. I have a duty to do so. Simply put, I have found that he was an impressive witness.
(b) Credibility of the Complainant
89I found the complainant generally incredible and unreliable as a witness. I had resort to the admissions in this case concerning injuries, the photographic evidence, and the cellphone video to assess any meaningful support for his evidence because of a combination of factors impacting his credibility and reliability.
(1) Courtroom Demeanour
90The complainant's demeanour in court and presentation as a witness was seriously compromised.
91His demeanour in court was fairly and diplomatically characterized by counsel as uncooperative and difficult.
92The Court had to caution the complainant several times for his demeanour in court. There were personal outbursts directed at the defendant, and defence counsel personally. The Court was required to caution the complainant concerning contemptuous behaviour and took steps with the assistance of general counsel to ensure that the complainant had access to legal advice about his rights and responsibilities as a witness.
93Finally, the complainant did not re-attend court on time when specifically directed to by the Court.
94Notwithstanding this presentation, the complainant was respectful when directly addressing the Court. Overall, I took the complainant's conduct to be a product of the stress and pressure of being in court rather than a deliberate attempt to obstruct the court process.
(2) The Complainant's Demeanour on the Night in Question
95The position of the complainant when he testified was that he was compliant with the defendant until physically assaulted by the defendant. The crux of his position is that he was unlawfully assaulted by the defendant, without provocation, beginning from a standing position. I do not accept this position for several reasons.
96The complainant's demeanour on the night in question was partially captured on video by his domestic partner who used her cellphone to film the actions of the police officers within the residence. The complainant's characterization when he testified of what he saw in the video, did not accord with my independent review of what I saw in the video. The complainant was prepared to endorse features of the video consistent with his version of the events. He would not endorse features of the video inconsistent with his version of the events that I could plainly see: for example, his physical touching of the defendant. The complainant on video presented as combative, non-compliant and aggressive.
97Contrary to the assertion made by both the complainant and his domestic partner, I do not find that the defendant struck the complainant several times in the face, prior to the physical confrontation going to the ground. I accept the evidence of the defendant that the only strikes to the face area occurred when he was struggling to control the complainant on the ground.
98The cellphone video shows no complaint by the complainant's domestic partner or his mother prior to the first strike to the face observed on the cellphone video itself. Given the demeanour of the complainant's domestic partner on video, her challenging demeanour, her combative demeanour, I would have expected a vigorous verbal recognition of any physical strikes that occurred while standing; much akin to what I did observe when strikes were executed on the ground.
99The complainant's testimony was at times incredible and unreliable. There were times during cross-examination when this witness simply said, "I don't know" in rather transparent attempt to simply avoid answering the question. In addition, when presented with cellphone video capturing his action, he refused to endorse even the most minimal responsibility for his actions that night.
100There is no question that the complainant had a very difficult and challenging night. There is no question that his antecedent mental health issues and his attitude presented challenges. There is no question that the court proceedings and the circumstances had a terrible impact on the complainant. But, it is clear that he had difficulty even sitting in the same courtroom with the defendant. But, it is the Court's role to assess the evidence without resort to sympathy or empathy. I am required to objectively assess the evidence of the complainant. A trial judge has that responsibility so that the reasons for the decision are clearly and accurately explained.
(c) Credibility of the Complainant's Domestic Partner
101The complainant's domestic partner presented a veneer of civil objectivity when testifying in court and cooperated with both counsel. But that veil of objectivity was laid bare courtesy of her conduct on the night in question, and some aspects of her evidence in court.
102I found this witness to be somewhat biased in favour of the complainant and against the defendant.
103First of all, this witness as I have outlined was uncooperative from the very moment she interacted with the defendant on the driveway that night.
104Second, I do not believe that the defendant told her she would be arrested if she did not come to his vehicle and speak to him.
105Third, this witness testified that the complainant was not in fact hiding behind the padlocked fence. Even the complainant acknowledged that he was, in fact, crouched down behind the fence, and he was, in fact, hiding from the police.
106Fourth, this witness aligned herself with the complainant in that they both testified that the complainant was wearing a t-shirt, and neither endorsed the defendant telling the complainant to take his hands out of his pocket, although I concede the complainant went back and forth on this point. The implication of this joint approach was that the complainant was not concealing his hands potentially harbouring a weapon. The complainant's own mother testified that the complainant had his hands in his pockets, he was wearing a blue hoodie with pockets, and that the defendant did in fact tell the complainant to take his hands out. Further, the complainant was wearing the sweatshirt with pockets upon arrest pursuant to a concession made by the Crown.
107While this witness's lack of cooperation was explained at trial, as I said she believed troublesome neighbours were causing mischief, her overarching approach on the night was to be uncooperative.
108In the end, I was cautious with the evidence of this witness for these reasons.
(d) Credibility and Reliability of the Complainant's Mother
109I found the complainant's mother to be a credible witness, but her evidence was not reliable on some points.
110The complainant's mother made it appear like she was the one who went to get the key for the gate from within the residence, but she also endorsed the absence of the complainant's domestic partner for this very same purpose.
111The complainant's mother testified that one handcuff was placed on the complainant while he was still standing. I find that to be unreliable. The cellphone video shows clearly the defendant applying the first handcuff successfully at approximately 21 seconds into the video.
112The complainant's mother says the defendant arrested her son in the bedroom but did not explain that it was domestic-related until the living room. In the bedroom, the defendant simply said he wanted to talk to the complainant. I tend to accept the complainant's mother's evidence on this issue, and there is some reliability concern about the defendant's evidence on this point. But, it makes sense that the defendant would not have engaged the complainant in a debate on the merits in the confines of the bedroom given the officer safety issues. It also makes sense that the complainant became uncooperative when he was made fully aware of what he was being arrested for; that is to say an assault of a domestic nature. He also walked calmly from the bedroom to the front hallway before becoming uncooperative. In the end, I do not have to resolve this issue concretely.
113The complainant's mother joins the views expressed by her son and his domestic partner that the defendant hit the complainant in the face while standing in the living room area. She testified that right after this, her son's domestic partner turned the camera on, on her phone. For the reasons I have already outlined on my analysis of the cellphone video, I do not accept this evidence from the complainant's mother. I do not find her to be incredible; I just think her recollection is unreliable at this point.
114The defendant testified that the first strike to the face of the complainant was captured on the cellphone video. He had not struck the complainant prior to this depiction on video. I accept that evidence. On video, approximately 35 to 41 seconds in, you can see the defendant strike the complainant in the face. As I indicated earlier, the volume of complaints from the complainant's mother and domestic partner heighten, increase and begin to document that the defendant has struck the complainant. Had there been striking when the defendant and complainant were still standing, I would have expected to hear that on the video, particularly from the complainant's domestic partner. She was an ever-present, persistent intervenor on video, repeatedly challenging the defendant. Had there been a punch or punches prior to going to the ground, she would have said something about it.
(3) Conclusion
115I find that the defendant's actions are supported by s.25 of the Criminal Code of Canada. I am satisfied that he was lawfully arresting the complainant and that he used the level of force he thought was necessary to affect the arrest.
116The defendant knew the extensive and violent background of the complainant. He was also aware that the complainant refused to remove his hands from his sweater pockets to show that he had no concealed weapons. When first observed at the sliding door of the rear bedroom, the complainant quickly went outside and came back in, causing the defendant to have a legitimate police safety concern about weapons.
117The defendant was faced with a chaotic circumstance within an unknown environment, with unknown threats to his safety, and the safety of the other officers. The environment was challenging and confined. The circumstances chaotic. The defendant was essentially grappling with the complainant in close quarters, in such a circumstance more distant use of force options were not reasonably available, for example, taser, ASP, or verbal commands. The Court has to be cognizant that the defendant is not required to measure the force used with an exactitude nor am I to measure his conduct on the night in question against a standard of perfection: R. v. Nasogaluak, 2010 SCC 6, at para. 35 (Nasogaluak). I find that the force used was proportional, necessary and reasonable: See R. v. Pan, 2012 ONCA 581 at para. 47.
118I cannot honestly conclude that the defendant intended to cause grievous bodily harm or death. Another circumstance, another person might have easily absorbed the defendant's strikes without harm. The defendant used the strikes to distract and to gain compliance. I find this approach to be objectively reasonable: Nasogaluak, at para. 34.
This is my judgment.