R. v. Baxter, 2018 ONCJ 607

minicounsel

Footnotes

I refer to this as an alleged assault solely because I do not know if Mr. Stirtzinger was ever found guilty and because, given Mr. Stirtzinger’s state of intoxication it may be possible that any contact between him and the store employee was unintentional. For the purposes of Sergeant Baxter’s trial, however, it does not matter what ultimately happened to Mr. Stirtzinger’s assault charge. It is an agreed fact that Sergeant Baxter had reasonable grounds to arrest Mr. Stirtzinger for assault and on the facts before me that agreement is unassailable.
Sergeant Baxter’s counsel commented upon the fact that the Crown had failed to call Mr. Stirtzinger as a witness. Either side here could have called Mr. Stirtzinger as a witness. Unless the Crown is motivated by bad faith or unless the failure to call the witness would cause an unfair trial, for neither of which there is even a whit of evidence here, the Crown is free to call those witnesses it deems appropriate to prove its case and not to call other witnesses: the governing principles are nicely summarized in the judgment of Pomerance, J. in R. v. Hillis, [2016] ONSC 451. See also R. v. Jolivet, 2000 SCC 29, [2000] S.C.J. No. 28. In the present case, the Crown explained that Mr. Stirtzinger had no memory of the events. The Crown’s choice not to call Mr. Stirtzinger strikes me as entirely within the Crown’s discretion, which is the end of the matter.
When asked to rate Mr. Stirtzinger’s level of intoxication on a scale of one to ten, with ten being falling-down drunk, Sergeant Baxter classified Mr. Stirtzinger as a six. The evidence of the store employee and the video evidence confirm that he was very drunk.
"Grievous bodily harm" has been taken to mean serious hurt or pain: R. v. Bottrell (1981), 60 C.C.C. (2d) 211, (B.C.C.A.).
A fairly recent consideration of this issue is found in the Supreme Court of Canada’s decision in R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at paragraphs 32-35, where the court comments briefly to the effect that a police officer’s use of force should not be measured with exactitude or against a standard of perfection given the nature of the circumstances they deal with and the frequent lack of any opportunity for measured reflection about which option to pursue in the use of force. A more encyclopaedic review of the principles governing judicial review of police use of force is to be found in the judgment of Hill, J. in R. v. DaCosta, 2015 ONSC 1586, [2015] O.J. No. 1235 (SCJ), paragraphs 92-94 of which, canvas the broad and long-running authorities that dictate the importance of ensuring that reviewing courts look at the situation through the eyes of an experienced police officer with due consideration given to the absence of time for reflection, the dynamic and sometimes perilous nature of some police-citizen confrontations and the numerous factors that need to be taken into account (several of which are set out in the decision of D.M. Brown, J. in R. v. Walcott, [2008] O.J. No. 1050 (SCJ), at paragraph 24).
See, e.g., Nasogaluak, supra, at paragraph 32: “But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” At paragraph 34, the Court notes that s. 25 of the Criminal Code protects a police officer if she, “acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances.” (The first requirement is not in issue in Sergeant Baxter’s case: Mr. Stirtzinger was clearly arrestable for assault.) The officer must subjectively believe that the particular use of force was necessary and that belief must be objectively reasonable.
The defence called Steven Summerville as an expert witness with respect to use of force issues in policing. There was no argument about Mr. Summerville's qualifications, but there was a disagreement over what he should be allowed to testify on. The defence wanted Mr. Summerville to testify about (a) police training and use of force; (b) the education of police officers in use of force, handcuffing and grounding; and, (c) the consistency of Sergeant Baxter's actions here with his police training. The Crown agreed that Mr. Summerville could testify with respect to the first two areas but disputed the propriety of him testifying on the final area. There has, of course, been a growing concern about whether the expansion of "expert" testimony in trials is either necessary or desirable, including concerns about the impact of some experts on the length of trials and even about their potential to confuse triers of fact or usurp their function.
See, for example, R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont.C.A.).
The relative height and mass of the officer and the subject is one relevant criterion, specifically referred to in Walcott, supra. Mr. Summerville also testified that the reasonableness of an officer’s choice of use of force options would vary with such factors, giving the example of a one-hundred pound officer confronted by an assaultive three-hundred pound, martial-arts trained subject as an example where resort to deadly force would likely be justified. The same principle applies in reverse, although it is only one criterion to consider, including the possibility that a subject is armed, etc.
That may or may not be a factor here as I note that the two most recent entries on Mr. Stirtzinger’s CPIC record are for local convictions in Niagara in 2015 and 2016.
Sergeant Baxter’s repeated emphasis on grounding (which can be dangerous to the arrestee), as his “go-to” move raises concerns that he may not always be engaging in the situation-specific analysis that reasonable use of force requires. In this case, of course, he is on trial for what happened on one specific day, not for any pattern of behaviour.
I do not place weight on this oversight on Sergeant Baxter’s part as doing so might fall into the category of Monday morning quarterbacking, but it is a fairly fundamental principle that there is a better chance of people doing what one tells them to do if one has explained why one wants them to do it. Without an explanation, which could easily have been given and which might have changed Mr. Stirtzinger’s tone, the person being given the order might react poorly to an order that could seem arbitrary. The importance of clarity is heightened for someone in Mr. Stirtzinger’s condition, who may have had no clue about hitting Ms. Doan and who might even have hit her by accident in his staggering, thus thinking, “I didn’t assault nobody”.
I found it peculiar that there are two points in the video footage where Sergeant Baxter glanced, however briefly, down to his left, which, given the geography of the place appears to be the only direction from which a passer-by might happen to observe what was happening. The first of these glances is just as Sergeant Baxter is pushing Mr. Stirtzinger against the fence. The second is just before he grounds Mr. Stirtzinger. It might be argued that the second glance involved a search for a suitable grounding location, but the whole area was flat concrete, which would have been evident from the outset. Given Sergeant Baxter's testimony that he was very concerned about Mr. Stirtzinger having weapons and given that a dynamic situation can change in a flash, these were peculiar glances, especially since the whole justification for grabbing Mr. Stirtzinger and pushing him against the fence was supposedly Sergeant Baxter’s fear that Mr. Stirtzinger was going for a weapon at his waist. While determining the reason behind these two glances is not necessary to the conclusion I reach in this trial, they do cause one to ponder what reason underlay them.
The Use of Force Wheel, which is part of an officer’s training and which was discussed at length before me is not law but does serve generally as a useful tool in measuring appropriate responses to variable levels of threat or reasonably perceived threat.
The search did not result in the discovery of any weapons on Mr. Stirtzinger, including around the waist/pocket area. The fact that an officer does not find weapons, I stress, is not the same as concluding that the same officer did not have a rational basis for fearing that there were weapons or might be something to create risk for the officer or the public. I have already rejected Sergeant Baxter's rationale for moving in on Mr. Stirtzinger based on the sequence of events in the video recording. Although this observation is not necessary to my conclusion, one does wonder why Mr. Stirtzinger would move his hands up to and under his shirt if there was nothing there.
R. v. S. (W.D.), [1994] 3 SCR 521.
See, for example, the comments of Garton, J. in R. v. Antoniak, 2007 ONSC: [24] It should be remembered that an officer’s notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer’s independent recollection from the equation. The notes would become the evidence. [25] The significance of an omission in an officer’s notebook, just like the significance of an inconsistency in a witness’s testimony, must be determined by the trier of fact on a case-by-case basis……
It bears noting that this repeated viewing of the video does not fall afoul of the rule against armchair quarterbacking. The rule against armchair quarterbacking forbids an over-exacting, unfair or artificial after the fact hyper-analysis of decisions made by police officers in dynamic circumstances. The review of the videotape, by contrast, involves determining the existence of objective events that have been used as the rationale for an exercise of discretion by the officer. My review of the video since the trial has sought to determine if there is any way I can square Sergeant Baxter's testimony with what the video shows, if there is any way that his testimony on that point can be believed or can create reasonable doubt. Despite countless re-windings and re-playings, the two things cannot be squared and there is also no way in which Sergeant Baxter could have honestly or reasonably perceived the events he described about Mr. Stirtzinger reaching for his waist.
R. v. J.A., 2010 ONCA 226 at paragraph 101 (Laforme, J.A. dissenting in the result but concurring with the majority on this point).
R. v. Giroux, 1995 ABCA 393, at paragraphs 3 – 4.

CITATION: R. v. Baxter, 2018 ONCJ 607

St. Catharines

DATE: 2018.01.22

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL BAXTER

Before Justice Fergus ODonnell

Reasons for judgment delivered orally on 10 November, 2017

Written reasons released on 22 January, 2018

Mr. M. Perlin for the Crown

Mr. J. Markson and Ms. K. Robertson for the defendant, Michael Baxter

Overview

The interaction between Michael Baxter and Bradley Stirtzinger on 16 August, 2016 comes across on first impression as, "nasty, brutish and short". Like many things, however, that interaction took place within a particular context and a full understanding of context is generally essential to considered judgment.
Part of the context here is that Michael Baxter is the defendant in a criminal trial, facing an allegation that he assaulted Mr. Stirtzinger, thereby causing bodily harm to him. Michael Baxter was a newly minted sergeant in the Niagara Regional Police Service. He has been a police officer since 1999. On 16 August, 2016, Sergeant Baxter had reasonable grounds to arrest Mr. Stirtzinger for an alleged assault and he was entitled to use the amount of force that was reasonably necessary in the circumstances to arrest Mr. Stirtzinger. Mr. Stirtzinger appears to have long-term mental health and substance-abuse issues. He has a lengthy criminal record stretching back almost thirty-five years and is the object of warnings on the police computer database arising out of his reputedly violent nature and the fact that he suffers from communicable diseases, which is potentially relevant as he also has a reputation for spitting at times.
The confrontation between Sergeant Baxter and Mr. Stirtzinger took place behind a plaza on Thorold Stone Road in Niagara Falls after Sergeant Baxter had responded to a call relating to Mr. Stirtzinger's alleged assault on a Shoppers Drug Mart employee and had followed a trail of information provided by various people in the neighbourhood until he came upon Mr. Stirtzinger behind the plaza where he proceeded to arrest Mr. Stirtzinger.¹ Within about a minute from Sergeant Baxter getting out of his police car and calling out to Mr. Stirtzinger to stop, Mr. Stirtzinger was face down on the ground and under arrest, with a bleeding cut to his cheek from the impact of his face on the ground. It is those events that bring us to the present trial.
There were only two people behind the plaza who could tell us what happened in those brief seconds, Mr. Stirtzinger and Sergeant Baxter. Only one of those two people testified, namely Sergeant Baxter, who testified in detail about what happened and why.² That is because Mr. Stirtzinger apparently has no recollection of what happened; he was certainly intoxicated³ and possibly under the influence of other substances at the time of the event. There was, however, a third "witness" to the events behind the plaza, just one who is not human. A CCTV camera captured good quality footage of the interaction between Sergeant Baxter and Mr. Stirtzinger. That footage serves a valuable function as an impartial reporter of what happened, not subject to the frailties of memory or dishonesty or stress or bias that human witnesses sometimes manifest. However, the value of the video footage, while great, is still finite. For example it did not capture the verbal interaction between Sergeant Baxter and Mr. Stirtzinger and its vantage point, largely looking from behind Sergeant Baxter towards Mr. Stirtzinger (who is facing the camera at some crucial points), means that some details that Sergeant Baxter testified to can neither be entirely confirmed nor denied by the camera.

Questions in Issue

There are two key issues in this trial:

a. Did Sergeant Baxter at any time “assault” Mr. Stirtzinger, that is to say did his use of force in arresting Mr. Stirtzinger exceed what was necessary and proportionate to the circumstances he found himself in?

b. If there was an assault, did the injury suffered by Mr. Stirtzinger constitute “bodily harm” as defined in the Criminal Code?

Relevant Principles

A number of basic principles apply in this trial, some of them relevant to any criminal trial and some of them arising out of the fact that Michael Baxter is a police officer and that the alleged assault occurred in the course of his police duties.
As I have said, some of the principles apply equally to Michael Baxter and to every other defendant who has a trial in this building. He is presumed innocent. That presumption goes with him throughout the trial. He does not have to prove he is innocent; rather, the Crown has to prove he is guilty. The Crown has to prove its case beyond a reasonable doubt, which is a very demanding standard of proof. I must look at his evidence in exactly the same way that I must consider any defendant's evidence, police officer or not. If I believe the evidence he has given, which evidence is not consistent with criminal liability, I must find him not guilty. Even if I do not believe that evidence, if his evidence creates a reasonable doubt, I must find him not guilty. Even if his evidence does not create a reasonable doubt, a conviction does not necessarily follow, because no matter what a trier of fact may think of a defendant’s evidence, the burden is always on the Crown to make out its allegations beyond a reasonable doubt.
The fact that Sergeant Baxter is a police officer, however, is not entirely irrelevant to the decision I have to make. The Criminal Code dictates the extent to which the use of physical force is acceptable in society. Various provisions permitting the use of force appear in Part I of the Criminal Code and are of general application; they apply to every citizen equally. There are, however, some provisions in the Criminal Code that most typically apply in relation to police officers lawfully engaged in the course of their duties. For example, s. 25 of the Criminal Code comes under the general heading of "Protection of Persons Administering and Enforcing the Law". Amongst other things, s. 25 permits any person acting on reasonable grounds to enforce the law to use as much force as is necessary for that purpose, although s. 25(3) narrowly limits the circumstances in which a person may use force that is intended to or likely to cause death or grievous bodily harm. Section 25(4) goes on to expand and particularize the circumstances in which a police officer making an arrest may use force that is intended to or likely to cause death or grievous bodily harm.⁴
By their nature, criminal courts "rush" in to assess human conduct long after the dust has settled and with the benefit of both hindsight and fairly leisurely contemplation. In every case it is essential that the court not lose sight of its comfortable position in assessing at leisure decisions often made by people in stressful situations where there is little or no time to assess and balance every nuance of a situation or to assess and balance with perfection each option available, sometimes as the circumstances are changing rapidly. Nowhere is this more true than in judicial assessments of the appropriateness of the use of force by police officers enforcing the law. Both basic principles of fairness and important public policy concerns underlie the need for such judicial restraint. The need for that restraint on the part of reviewing courts is long-established.⁵ Restraining people who do not want to be restrained is not always a pretty or predictable process and the consequences of applying too strict a standard on the police could in some situations be dire for the officer and/or for the public the officer is employed to protect. To pick up on one of Mr. Markson's submissions, arresting non-compliant people is not a genteel process subject to boxing's Marquess of Queensberry rules. Given the realities of policing, police officers using force in the course of their lawful duties are, within reason, entitled to be wrong.
Without getting into the fine details of the present case at this point, the reality is that, while police officers in Canada are well-trained, well-resourced and well-remunerated, they often have to deal on the fly with situations that most people do not. Just as firefighters rush into buildings that any sensible person would rush out of, police officers are expected and required to confront and deal with people and situations that most of us would rather not deal with. Whatever the underlying reason, those people may not be on their best behaviour and may behave unpredictably and irrationally, not to mention that some of them may be violent and even armed at times. The unpredictability of human behaviour, sometimes exacerbated by mental health issues and/or the influence of alcohol or controlled substances, means that what may have started out as a seemingly benign interaction may very rapidly switch into a violent confrontation where the police officer's safety – and his or her ability to protect the public from present or future offences – are put at risk.
Of course, society also gives police officers substantial support in performing their duties. I have referred already to the fact that police officers in this country benefit from significant initial and in-service training (which was discussed in evidence before me). Anyone who reads the papers around budget time appreciates that police services receive a very large share of municipal taxes, which go to support staffing levels and equipment. Police officers are given legal powers and equipment that are not available to the average citizen, including various types of weaponry and the lawful authority to use them. All of these powers and resources and reasonable judicial leeway in judging the use of those powers and resources are given for very good reason.
At the same time, there are limits to almost everything. Balance, restraint and reasonableness are hallmarks of any judicial or policing system.⁶ Just as a police officer has a right and obligation to protect himself and victims of crime and to make sure that he or she returns safely to his or her family at the end of a shift, he or she owes an obligation to apparent offenders to treat them fairly and within the bounds of the law and, as much as is reasonably possible, to ensure their safety also. The expanded powers in the Criminal Code and judicial restraint in "Monday-morning quarterbacking" are not a free pass. Accordingly, the mantra of "officer safety", for example, is, at one and the same time, both a perfectly valid and important concern, but also has the potential to become a justification for all manner of violations of suspects' constitutional rights and physical integrity. In short, judicial appreciation of the challenges of policing does not give the police carte blanche in the use of force against subjects. I stress that I am speaking here in general terms, not in relation to the facts of the present case, which I address fully later.
It is the function of the courts in cases like this as in any case, applying the principles I have set out herein, to determine whether or not the line between acceptable conduct and criminal liability has been crossed, always keeping in mind the presumption of innocence, the standard of proof beyond a reasonable doubt and the principle of restraint in after-the-fact assessment of in-the-moment decisions.

The Evidence

The evidence at this trial took various forms, including the following:

a. A six-page Agreed Statement of Facts, attached to which were thirteen appendices including photographs of the scene and of Mr. Stirtzinger, 911 and radio communications, Sergeant Baxter's notes and his voluntary statement to the Special Investigations Unit, his training history and a copy of the computer materials available to Sergeant Baxter relating to Mr. Stirtzinger's history with the police and his criminal record. Some of the events in the Agreed Statement of Facts were also the object of viva voce testimony by Tracey Doan and Sergeant Baxter.

b. The testimony of Tracey Doan, the Shoppers Drug Mart employee who called the police about Mr. Stirtzinger's misbehaviour outside the store.

c. The testimony of Sergeant Baxter.

d. The testimony of Steven Summerville, who was tendered as an expert on the use of force by police officers and whose qualifications in that area were agreed upon, although the scope and weight of his evidence was not. I do not deal with Mr. Summerville's evidence in the body of these reasons because, in the final analysis, I did not ultimately find his testimony to be particularly helpful or determinative of any material issue.⁷

e. The video-recording of what happened during the arrest, subject to its strengths and weaknesses as noted herein.
I also had the significant benefit of copious authorities and capable and focused submissions from all three counsel.
This is one of those relatively rare cases in which a witness by witness chronology actually suits, so I shall proceed generally on that basis, but first I shall outline what was known about Mr. Stirtzinger as it provides insight into the potential situation that Sergeant Baxter was involving himself in that day and it provides insight into what concerns, expectations and risk analyses might reasonably have been open to Sergeant Baxter.⁸

What Is Known About Mr. Stirtzinger

Mr. Stirtzinger is fifty-two years old. The Niagara Regional Police Service print-out on Mr. Stirtzinger, which was available to Sergeant Baxter in electronic format on his cruiser's data terminal, showed that Mr. Stirtzinger is about five feet and nine inches tall, which is a bit shorter than Sergeant Baxter but not materially so. Their relative heights are also visible on the video. His weight shows as one hundred and nineteen pounds, which is about half of Sergeant Baxter's weight. It is obvious on the video and in the photographs of Mr. Stirtzinger after the arrest that Mr. Stirtzinger is very slight.⁹
The police database shows cautions for Mr. Stirtzinger, namely that he is violent and suffers from contagious diseases and recommends that officers use blood and body-fluid precautions when dealing with him. After these cautions, which show at the top of the entry for obvious reasons, the database shows Mr. Stirtzinger's outstanding charges which are trespassing at night, theft under five thousand dollars and three charges of breach of probation. His conditions of release for those offences are also set out near the top of the database print-out, making it obvious on three separate occasions that Mr. Stirtzinger suffers from mental health issues.
The database also shows Mr. Stirtzinger's criminal record, as reflected on CPIC records. That criminal record dates back, largely unbroken, to 1983. There are two significant gaps, from 1996 to 2001 and from 2008 to 2015, although I note that CPIC records are not necessarily entirely up-to-date.¹⁰ There are about forty-five convictions in the thirty-three years from 1983 to 2016. The offences are all lower-level offences. About a third of the convictions are for breaches of court orders, followed in frequency by miscellaneous property offences. There are two convictions for uttering threats, in 1991 and 1996, and three convictions for assault in 1993, 1994 and 2008. There are no convictions for violence against police officers or for offences necessarily involving weapons.
It would be unreasonable to expect Sergeant Baxter to be familiar with all the minutiae of Mr. Stirtzinger's record, although he professed to be generally familiar with Mr. Stirtzinger and to have dealt with him on a few occasions personally. I shall come back to his testimony about this issue later in these reasons.

The Evidence of Tracey Doan

The events underlying this case begin with Tracey Doan, who was a manager at the Shoppers Drug Mart on Portage Road. Strictly speaking, the events began somewhat earlier, when two police officers told Mr. Stirtzinger to move on from a nearby variety store where his presence was not appreciated. He ended up at the Shoppers Drug Mart and Ms. Doan was called out by an employee who reported that Mr. Stirtzinger had spat on the front window of the store. Ms. Doan went out and found Mr. Stirtzinger outside the store. He was very drunk. She was familiar with Mr. Stirtzinger from the past, including when he had urinated on an employee picnic table and when he had been aggressive in panhandling from customers in their cars. She told him that he had to move on and he started stumbling when he got up. She was in his way and he swore at her and, "gave me a little shove in the back," "a nudge with his elbow", which, "didn't push me over". The nudge, she said, had no effect on her and caused her no pain, but did cause her to lurch forward. There is no reference in either the Agreed Statement of Facts or Ms. Doan's testimony to her having been pushed by Mr. Stirtzinger into the store window, an assertion made by Sergeant Baxter.

The Evidence of Sergeant Michael Baxter

Sergeant Baxter is forty-one years old and has been a police officer in the region since 1999. He was promoted to the rank of sergeant a few months before the events of this case. He has no criminal record and no findings under Part V of the Police Services Act.
Sergeant Baxter testified to his original training on use of force techniques as a recruit, along with his re-qualifications, which take place every year. He has always passed his re-qualifications; an officer who does not pass is restricted to desk duties until he or she does. The annual re-qualifications combine theoretical and practical components. It includes a refresher on the use of force model, which Sergeant Baxter described as, "what gives us the justification to use different levels of force dependent upon the subject's behaviour." He said that officers are trained to use everything that is at their disposal in a constant assessment and re-assessment of risk to, "suit the needs of the situation at hand." Officers assess risk factors based on their personal knowledge of a person from working in the community, on what other officers tell them and from what is on the CPIC database and the Niagara Regional Police Versadex system. The latter system, for example, contains records of over three hundred interactions with Mr. Stirtzinger in the ten years preceding these events. The databases show cautions, such as a person's use of violence in the past, contagious diseases, flight risks and tendency to fight the police. There are numerous labels or cautions that might apply depending on the individual. The NRPS internal system, for example, flags drug abuse and mental health issues.
Sergeant Baxter testified that he has been involved in hundreds of arrests during his career and easily dozens of those have involved the need for force. In discussing use of force options, Sergeant Baxter recognized that he had a number of "use of force" options available to him, but said that unlike some officers he is not particularly skilled in martial arts or hand combat. He said that an exchange of punches can lead to injury for him and/or the subject. He stated on a number of occasions that the technique of "grounding" a suspect is his "go-to" option when he feels that force needs to be used in an arrest. "It's my, my go to move to end a confrontation as quick and, and, and easily as possible."¹¹
In cross-examination, Sergeant Baxter was unable even to estimate how often he uses grounding but said he uses the technique "frequently".
“Grounding” is a process whereby, ideally, an officer manages to put an arrestee off-balance and pivot him in order to force him face down onto the ground, where he will be briefly disoriented, will have a greatly reduced ability to resist and will not be able to access any weapons around his waist or front pockets, two areas where weapons are commonly concealed. It is relatively easy to keep a properly grounded subject prone long enough to gain control of his hands and to apply handcuffs. The expert evidence made it clear that there are various forms of grounding depending on the arrestee's position, but the description above is most germane to the present case.
Sergeant Baxter said that grounding was an available use-of-force option when, "the subject is, is non-compliant and actively resistant at that point." He described it as, "a very quick and effective method that getting somebody under arrest, gaining control of a non-compliant subject, and, and effectively getting them under arrest." He characterized "active resistance" as, "the use of any type of physical force to disobey lawful commands. It could be anything from simply walking away. It could be anything to, once I gain physical control of the subject, trying to pull away from me, but short of what I consider to be assaultive behaviour."
Sergeant Baxter testified to the hundreds of Versadex entries on Mr. Stirtzinger and said the police received almost daily calls for service relating to Mr. Stirtzinger when he was not in custody. He knew of Mr. Stirtzinger's "significant" alcohol, drug and mental health issues. He testified that when Mr. Stirtzinger is intoxicated he has, "quite a propensity...to be violent with both members of the public and with my fellow officers."
Mr. Stirtzinger, he said, has also, "routinely displayed a propensity for spitting at officers, spitting at medical care staff" and he noted that Mr. Stirtzinger had apparently tried to spit at hospital staff when he was taken there after this arrest. Quite apart from spitting at people being an assault, spitting obviously creates concerns when the person who is spitting suffers from communicable diseases. Sergeant Baxter understood Mr. Stirtzinger to suffer from hepatitis C and HIV.
Mr. Stirtzinger had the potential, when sober, to be cordial, said Sergeant Baxter. It all depended, he said, on his level of sobriety at the time. Sergeant Baxter had encountered Mr. Stirtzinger about half a dozen times, perhaps more.
Sergeant Baxter testified that he had reviewed the CPIC data that was reproduced in the Agreed Statement of Facts. He had a general knowledge of Mr. Stirtzinger's history.
Sergeant Baxter started work at 4 a.m. that day. At 2:51 p.m. he saw the call for assistance to the Shoppers Drug Mart and volunteered to attend as he was in the area. He first did a quick recce around the area in his car to see if he could see the person being complained of, whereafter he went to the store and spoke with Ms. Doan and another employee, who described Mr. Stirtzinger's actions at the store. His description of Mr. Stirtzinger's behaviour as portrayed by the store employees was generally consistent with Ms. Doan’s description, but he testified that he had been told Mr. Stirtzinger had pushed Ms. Doan face-first into the store window, which was not consistent with her testimony and which was not in his notes. I recognize the possibility that Sergeant Baxter may have conflated the fact of Mr. Stirtzinger spitting on the window with Ms. Doan being pushed and thus believed she said she had been pushed into the window, but even that speaks to a weakness in his recollection and is one factor in assessing his reliability as a witness. One would expect a detail such as being pushed face-first into a window to be noteworthy enough to make it into an officer’s note-book.
The Shoppers Drug Mart employees told Sergeant Baxter that Mr. Stirtzinger had tried to open the doors of various cars parked in the lot as he left their store. Before Sergeant Baxter left the store front, he was approached by two men and a child. The men told him that they had seen a man at the intersection nearby, "yelling and carrying on," and that he had thrown something like an alarm clock at passing cars. He was also spitting at vehicles. These men had also seen this person (realistically Mr. Stirtzinger, based on the description) going up nearby driveways and trying car doors. After receiving that information, Sergeant Baxter set out on Mr. Stirtzinger's trail, eventually ending up at the Sobey's plaza across the street, where a woman told him that she had come out from a store to find a man in her car, who had said, "some un-nice things” to her, when she confronted him. She pointed to a man in a park adjacent to the plaza, saying that was the man who had been in her car. At that distance a positive identification was unrealistic, so Sergeant Baxter wended his way behind the plaza to access the park. As he drove along Orlando Drive, a resident waved him down and told him that she too had come out to find a man in her truck and that he had wandered off and turned down a side street.
Sergeant Baxter testified that he drove down to that side street, which turned out to be a short cul-de-sac, ending with a set of stairs leading up to a walkway behind the Giant Tiger store. Just before the stairs he saw the person he was looking for. Realistically, it is inescapable that Sergeant Baxter had reasonable grounds to believe that the person at the Shoppers Drug Mart was the person at the intersection who was the person at the Sobey's plaza, who was the person in the truck on Orlando Drive and who was the person in front of him at the stairs. Sergeant Baxter recognized the person as Bradley Stirtzinger. Mr. Stirtzinger turned and appeared to see the police car and then set up the stairs. As Sergeant Baxter pulled up he called out his window, "Brad", but Mr. Stirtzinger did not respond. When Sergeant Baxter called out to him again from the bottom of the stairs, he said that Mr. Stirtzinger swore at him and kept walking. Sergeant Baxter left nothing to doubt by then calling out that it was the police and that he was under arrest for assault, to which Mr. Stirtzinger again turned his head, swore and denied any assault. Curiously, given the central place of communication in interacting with a subject, Sergeant Baxter did not explain to Mr. Stirtzinger whom he had allegedly assaulted. To the contrary, in his SIU statement Sergeant Baxter said that he told Mr. Stirtzinger that they could discuss the assault once he was under arrest.¹² As they walked along behind the store, Sergeant Baxter narrowed the gap while calling out to Mr. Stirtzinger repeatedly to stop and that he was under arrest. More vulgarity and denials of assault followed. Sergeant Baxter testified that he was also telling Mr. Stirtzinger to put his Giant Tiger bag down and put his hands behind his back.
It is around this point that first Mr. Stirtzinger and then Sergeant Baxter enter into the CCTV camera's field of view, with Sergeant Baxter coming into view about twenty seconds after Mr. Stirtzinger. Mr. Stirtzinger is staggering, reflective of a high degree of intoxication, consistent with the evidence at trial. Within seven seconds of his arrival, Sergeant Baxter has put hands on Mr. Stirtzinger and pivoted him against the adjacent fence. Within about fifteen seconds of that, Mr. Stirtzinger has, depending on one's reading of the evidence, either struggled against the fence or been run down its length and has been pivoted and grounded, face down on the sidewalk by Sergeant Baxter. It was in this moment that he suffered the cut to his cheek.¹³
Sergeant Baxter testified that during the first few seconds that he and Mr. Stirtzinger appeared on the CCTV footage, he told Mr. Stirtzinger again that he was under arrest for assault and that he was to put the bag down and put his hands on the fence, which was immediately to the right of Mr. Stirtzinger. He said that Mr. Stirtzinger swore at him and again denied any assault, whereupon Sergeant Baxter repeated his command to put the bag down.
When asked by Mr. Markson to relate Mr. Stirtzinger's behaviour to Sergeant Baxter's approach to the arrest, Sergeant Baxter testified that Mr. Stirtzinger's repeated profanity constituted verbal resistance and his walking away when Sergeant Baxter told him to stop and turn around was active resistance, each of which is a relevant term in relation to use of force options in police policy. What this analysis fails to reflect, however, is the fact that before Sergeant Baxter applied any force to Mr. Stirtzinger, Mr. Stirtzinger had already stopped and turned around and waited about ten seconds for Sergeant Baxter to arrive. By this point, ten seconds not being a trivial period in the analysis, Mr. Stirtzinger had terminated any active resistance and is at most engaging in verbal resistance through his profanity. As I have noted, it also appears that, by Sergeant Baxter's version of events, he had not at any time told Mr. Stirtzinger who it is he had allegedly assaulted in the face of Mr. Stirtzinger's denials. Given the importance of communication in bringing about compliance, as reflected in both common sense and the evidence before me, that oversight is peculiar.
I accept that it is highly probable that Sergeant Baxter was telling Mr. Stirtzinger repeatedly to put the bag down. The bag, especially a bag carried by an addict, which may contain needles, was a logical potential threat to Sergeant Baxter and it is entirely rational that he would want it removed from the equation. It also bears noting, however, that, while Mr. Stirtzinger may have failed to put the bag down initially, he was in the process of putting the bag down when Sergeant Baxter laid hands on him and pivoted him into the fence.
Just as a police officer is required to be constantly vigilant to notice when a confrontation is becoming more threatening, so he or she has an obligation to recognize when a subject has gone from one level of resistance to a lower level of resistance. The acceptable use of force will necessarily vary depending on whether a person is being actively resistant as defined in the Use of Force Wheel.¹⁴
It was Sergeant Baxter's testimony that the reason he stepped in and grabbed Mr. Stirtzinger was because Mr. Stirtzinger put down the bag and then, rather than putting his hands on the fence, immediately moved both hands up toward his waist and under his shirt, a place where weapons are frequently stored. Seeing such a move as a potential serious threat to his own safety, Sergeant Baxter moved in and grabbed Mr. Stirtzinger and pushed him towards and against the fence, where a "struggle" ensued, ultimately resulting in the grounding and the injury to Mr. Stirtzinger's face. If that was what happened, Sergeant Baxter’s resort to the use of force would appear to have been entirely within the reasonable leeway accorded to police officers in resorting to force when dealing with subjects.
The problem with this assertion is that it cannot be reconciled with the CCTV footage. Sergeant Baxter claimed that he moved in because of Mr. Stirtzinger's non-compliance and because of his movement of his hands to and under his shirt. As I have said, if Mr. Stirtzinger had done that, Sergeant Baxter's reaction would have been entirely justifiable. However, the video makes it clear that Sergeant Baxter started moving in on Mr. Stirtzinger before he had dropped the bag and started to rise. To the extent that Mr. Stirtzinger's right hand can be seen moving slightly at one point, that is nothing more than the natural movement of the hand in sync with him rising up from putting down the bag with his other hand. While most of Mr. Stirtzinger's waist area is obscured by Sergeant Baxter's body that obstruction does not at all undermine the conclusion that Sergeant Baxter's rationale for his sequence of events is patently false. It is not a rationale but rather a rationalization, an after-the-fact justification for his conduct.
Sergeant Baxter also described various things that he said Mr. Stirtzinger was doing in the short “struggle” against the fence. For example he said that Mr. Stirtzinger was pushing back against the fence, resisting Sergeant Baxter's efforts to control him. He also said that Mr. Stirtzinger refused to give up his hands. He also said that Mr. Stirtzinger turned his head from side to side, "trying to get face to face with me", causing Sergeant Baxter to fear that Mr. Stirtzinger was going to spit at him. He said that Mr. Stirtzinger was using his feet to stand up and push back on Sergeant Baxter. At one point he described Mr. Stirtzinger's arms "flailing".
The problem with all of this is again the video. I am wholly cognizant of my obligation to allow for the fact that I was not there and I was not dealing with the issues in the moment, but that judicial restraint can only go so far in the face of the video, even with any limitations this video has. Sergeant Baxter resisted the proposition that Mr. Stirtzinger was "frail". Whether that denial is accurate or not in terms of the precise words used is neither here nor there and, as a general proposition, people under the influence of certain substances can possess remarkable strength. However, in the present case it seems inescapable that the most robust thing that Mr. Stirtzinger was capable of was walking. Even the initial act of turning around to face Sergeant Baxter as Sergeant Baxter followed him from the street seemed barely within Mr. Stirtzinger's capacities. The way he turned was such that one wonders if he will complete the turn without falling down. From the point that Sergeant Baxter put hands on Mr. Stirtzinger, the most apt description of Mr. Stirtzinger, without meaning any disrespect, is that he looks like a rag doll. The supposed flailing looks more like a twitch and it seems to be caused by Sergeant Baxter's pulling. The idea of Mr. Stirtzinger and Sergeant Baxter "jockeying" for control against the fence as described by Sergeant Baxter implies a very different power balance than the one on the video, which is reflective of a large, solid, powerful man in reasonable control of a much, much slighter and disoriented man with his face jammed against the fence. Mr. Stirtzinger supposedly "pushing" back on the fence looks much more like Mr. Stirtzinger's palm being pushed into the fence by Sergeant Baxter's pressure on Mr. Stirtzinger's back, without any pushing off on Mr. Stirtzinger's part. On the evidence there is no other conclusion rationally open to me other than that Sergeant Baxter repeatedly and materially exaggerated the nature of Mr. Stirtzinger's supposed resistance whilst he was up against the fence. I do not believe that there was any material resistance at all other than perhaps verbal utterances from the moment that Mr. Stirtzinger stopped and turned to face the approaching Sergeant Baxter in eventual compliance with Sergeant Baxter's lawful command. Even allowing considerable situational latitude to Sergeant Baxter, I do not believe that he was at any material risk of harm from Mr. Stirtzinger or that the grounding was necessary to ensure his safety or that he did or could reasonably have believed in any such risk or necessity. The only purpose the grounding was "necessary" for, was to finish the process of handcuffing Mr. Stirtzinger. It seems to me that, at a minimum, impatience was driving the agenda. Ultimately, however, the Crown does not have to explain why Sergeant Baxter acted as he did, the Crown only has to prove beyond a reasonable doubt that it was an unlawful use of force.
As it turned out, Sergeant Baxter's grounding of Mr. Stirtzinger did not go according to plan. Ideally, a grounding of a suspect would be a controlled grounding, with the officer pivoting the subject over and down to a prone position on the ground, while maintaining a grip on the subject in order to ensure that the person's collision with the ground involved as little force as possible. That is not what happened here. Sergeant Baxter testified that he was surprised with how easily the grounding went and it occurred with a lot more force than he expected. He said that as a result, he actually lost his grip on Mr. Stirtzinger's shoulder and as a result, Mr. Stirtzinger hit the ground, chest and face down, without any restraint on his terminal velocity.
The Crown submitted to me that Sergeant Baxter's "loss" of grip was in fact intentional, an assertion that Sergeant Baxter denied. He had no desire to cause bodily harm to Mr. Stirtzinger, he said. There is nothing in the material before me to suggest that Sergeant Baxter harboured any malice towards Mr. Stirtzinger. On the evidence, I do not doubt that Mr. Stirtzinger, on that day and many others, was a persistent nuisance both to the people in the neighbourhood and to the police officers who dealt with him repeatedly and that repeated interaction with him was frustrating and swallowed up a lot of police resources. However, the idea that Sergeant Baxter intended to harm Mr. Stirtzinger and purposefully let him fall unrestrained to the ground is not a conclusion I would be comfortable reaching on the material before me. Sergeant Baxter rejected the suggestion that he acted out of anger and told Mr. Perlin, in effect, that if he were to get angry at Mr. Stirtzinger, and all the other unfortunates of his like who occupy a very large part of an officer’s day (as they occupy a very large part of this court’s docket), he would be a bitter man indeed. That denial rang of truth.
The video shows no inappropriate conduct by Sergeant Baxter in relation to Mr. Stirtzinger after Mr. Stirtzinger had been grounded and handcuffed. Sergeant Baxter searched Mr. Stirtzinger¹⁵ and eventually a decision was made to take him to hospital in a police car as the ambulance response time was expected to be unduly long. There was evidence that the staff at the hospital were taking precautions against spitting and that Mr. Stirtzinger was abusive to the nurse who was trying to feed him.
Under cross-examination, Sergeant Baxter was asked what he would have done if Mr. Stirtzinger had put the bag down and not reached under his shirt, to which he replied that he would have taken physical control of him, arrested him and handcuffed him. There would have been no need in that hypothetical to have pushed him against the fence, he said.
I am entirely satisfied that the above "hypothetical" that was put to Sergeant Baxter by Mr. Perlin is precisely what was happening in the video before Sergeant Baxter went hands-on. At that point, Mr. Stirtzinger had been physically compliant for quite some time, even if he was continuing to be verbally disagreeable. He had stopped, he had turned around, he had waited for Sergeant Baxter, he was obeying the command to put the bag down. He had shown no sign of being assaultive to Sergeant Baxter and had shown no sign of any intention to spit at Sergeant Baxter. Sergeant Baxter's very close proximity to Mr. Stirtzinger belies any assertion that a fear of spitting was a material consideration in his mind at that time. He was within two to four feet at most from Mr. Stirtzinger at the time.
Sergeant Baxter was correct about what the appropriate response would have been to that hypothetical. In that "hypothetical", which I am satisfied beyond a reasonable doubt is what happened here, there was neither need nor justification for Sergeant Baxter going hands-on. For whatever reason he may have had, Sergeant Baxter chose to respond to Mr. Stirtzinger's compliance with an unnecessary and excessive use of force that included pushing Mr. Stirtzinger against the fence, pushing him face first along the fence and then pivoting and grounding him, with resultant injury. Even assuming that there had been resistance by Mr. Stirtzinger while he was against the fence, that resistance was predicated upon Sergeant Baxter’s unlawful use of force. As I have said, the idea that Mr. Stirtzinger had any meaningful capacity to resist Sergeant Baxter strikes me as fanciful.
In reaching the conclusions I have reached in this case, I have kept in mind that the burden of proof is always on the Crown and that the standard of proof is high, as is the expectation that courts give police officers substantial leeway in measuring the need for force. In reaching the conclusions I have reached, I have also considered Sergeant Baxter’s testimony. As Sergeant Baxter is the defendant in this case, I am required to undertake my analysis of his evidence in keeping with the judgment of the Supreme Court of Canada in R. v. W. (D).¹⁶ If I believe the version of events offered by Sergeant Baxter, which is inconsistent with criminal liability, then I must find him not guilty. Even if I do not believe him, I must ascertain if his evidence leaves me with a reasonable doubt about his guilt. If I have such a doubt, I must find him not guilty. Even if I am not left with a doubt on his evidence, I must determine if, on all the evidence, the Crown has proved its allegations beyond a reasonable doubt.
In his testimony, Sergeant Baxter came across at times as mild-mannered and unassuming, at times as combative and non-responsive. Overall I am unable to accept parts of his evidence. While there are parts of his evidence that I believe, there are other areas, substantial and material areas, that I found entirely unconvincing. As I have said, I also found him to be fairly combative under cross-examination. That is not to say that a witness is to be found wanting simply for standing his ground, but when a witness says things that do not make sense, a trier of fact has to pay attention. While isolated instances of troubling testimony may mean nothing in assessing how much confidence to reside in a witness's evidence, a broader manifestation of unreliability is an entirely different thing. On the evidence before me, I cannot say that I believe enough of the relevant portions of Sergeant Baxter's evidence to find him not guilty. The extent of my discomfort with his evidence is such that it does not create reasonable doubt about his guilt either.
The difficulties I found with Sergeant Baxter's evidence include the following:

a. It is difficult to reconcile Sergeant Baxter's assertion that the police dealt with Mr. Stirtzinger almost every single day, his assertion that Mr. Stirtzinger has “quite a propensity” when drunk to be violent with the public and police and his assertion that Mr. Stirtzinger had previous charges for assaulting police and assaultive behaviour towards the police with the criminal record put before me. I do not suggest for a moment that Sergeant Baxter, in responding to a call, needs to know the fine details of Mr. Stirtzinger's criminal record, but the juxtaposition of Mr. Stirtzinger's criminal record, with three very dated convictions for common assault and no convictions for assault police or assault to resist arrest or assault with a weapon leaves the impression that Sergeant Baxter was overstating the extent of Mr. Stirtzinger's record and behaviour. This is true even if some misconduct on Mr. Stirtzinger's part did not lead to criminal charges. I note that there was no specificity at all offered with Sergeant Baxter's assertion that some of Mr. Stirtzinger's previous violence involved the police.

b. I am troubled by some of the omissions in Sergeant Baxter's notes. I stress that I do not subscribe to the theory that has been espoused in some decisions to the effect that, "if it isn't in the notes, it didn't happen." That perspective, which I believe is clearly wrong in law, ignores the fact that police notes are the product of a human process and that different officers approach them with different levels of attention to detail.¹⁷ Of course if an officer's notes are of very poor quality and reflect his or her view that they serve only as an aide memoire for the officer and do not have important additional functions of ensuring proper record-keeping and proper disclosure to Crown and defence counsel, that fact could reflect poorly on an officer's reliability as a witness and perhaps even on his or her credibility.

c. Even accepting that an officer's notes do not have to be a transcript of all that happened, the omission of significant items from the notes can be alarming, increasingly so if more than one important detail is missing. For example, in this case, there is no reference in Sergeant Baxter's notes to the supposed fact that Mr. Stirtzinger pushed Ms. Doan into the window a detail that Ms. Doan herself did not testify to. In an assault allegation, that is a noteworthy detail, especially as Sergeant Baxter himself characterized it as, "a fairly significant assault”.

d. Later, when Sergeant Baxter was speaking with the two men and the boy who described Mr. Stirtzinger throwing an alarm clock at a passing car, there is no note about them telling him that Mr. Stirtzinger had been spitting at the cars. Given the prominent place that spitting played in Sergeant Baxter's risk assessment, this is a most curious omission. That concern is heightened by Sergeant Baxter's behaviour towards Mr. Stirtzinger behind the Giant Tiger. I do not place any weight on the Crown's contention that Sergeant Baxter's proximity to Mr. Stirtzinger after the handcuffing puts the lie to his supposed spitting concerns; the explanation offered by Sergeant Baxter that a person's demeanour can improve dramatically after they have been restrained could very well be true, indeed I suspect that it is at least sometimes true. However, earlier in the interaction, when both men were standing face to face, Sergeant Baxter's proximity to Mr. Stirtzinger is hard to reconcile with the spitting concern, unless, of course Sergeant Baxter had already weighed the pros and cons and had decided that the spitting risk of being close to Mr. Stirtzinger was outweighed by the advantage of proximity for the purpose of executing his "go to" move of grounding. That latter option is not consistent with Sergeant Baxter's assertion that he only moved in on Mr. Stirtzinger and grabbed him because of Mr. Stirtzinger's supposed two-handed move up to and/or under his shirt after putting down the Giant Tiger bag.

e. Sergeant Baxter did not write up his notes at the end of the shift as he was already two hours into overtime, as he had child-care duties and as he did not want to do a "rush job" on them, all of which are plausible. What is very hard to understand is that when he did write his notes, they make absolutely no reference at all to the fact that he "lost" his grip, resulting in Mr. Stirtzinger free-falling to the ground, face down. Again, the omission of trivial details from an officer's notes is not cause for concern, but the specific characterization in Sergeant Baxter's notes of the grounding as "effective" without at all adverting to the free-fall is a very serious omission. This concern is exacerbated in Sergeant Baxter's testimony wherein he first describes the assault on Ms. Doan as "fairly significant" and then when pressed on the relevance of the missing detail about lurching into the window to the seriousness of the assault he retreats into the patently illogical position that, "to me an assault is an assault."

f. In a similar vein, as I have noted above, I also have trouble accepting Sergeant Baxter's assertion that he grabbed Mr. Stirtzinger because of the concern for weapons concealed in his waist area. When I say I "have trouble with" Sergeant Baxter's evidence on this point, I mean that I am wholly satisfied that it is not true. Much of this trial was spent viewing and reviewing and reviewing again the videotape of the interaction between Mr. Stirtzinger and Sergeant Baxter. I have done so again in the course of preparing these reasons. It is, in my view, an undeniable fact that Sergeant Baxter had already started moving in on Mr. Stirtzinger while Mr. Stirtzinger was still lowering the bag with the hand that was first referred to as being used to move towards the supposedly problematic waist area.¹⁸

g. When Mr. Perlin played the video of Sergeant Baxter moving in on Mr. Stirtzinger and extracted from Sergeant Baxter a concession that he had started moving in before Mr. Stirtzinger had completed putting the bag down (i.e. that he had started moving in before the supposed hands-to-waist threat), Sergeant Baxter for the first time spoke of envisaging the bag itself as a weapon of opportunity while it was being lowered to the ground. This struck me as a last-minute, desperate and ineffectual, effort to recalibrate his position when faced with the fact that his previous justification for moving in on Mr. Stirtzinger was obviously contradicted by the video.

h. Sergeant Baxter's explanation of the discrepancies between his testimony and his SIU statement on the chronology of going hands-on when Mr. Stirtzinger was putting the bag down was not persuasive. It is not, as Sergeant Baxter put it, "a matter of interpretation"; rather, it is a matter of divergence between two versions of the same event given by the same person. There is no room here for “alternative facts”.

i. Sergeant Baxter attributed the unexpected momentum of the grounding in part to Mr. Stirtzinger pushing off the fence at the time of grounding. There is no such pushing off in the video. It is true that Mr. Stirtzinger’s palms can be seen against the fence, but it cannot be said with any confidence that he is exerting pressure backwards. Putting one’s hands against a fence is a natural defensive reaction when one’s face is being pushed into the fence. In any event, as I have said, even if there had been a pushing back, however feeble it might have been in Mr. Stirtzinger’s case, it would be a response to what was already an unlawful use of force by Sergeant Baxter.

j. Under cross-examination on whether one should have particular concern over the risks involved in head injuries as opposed to injuries to other parts of the body, Sergeant Baxter came across as unnecessarily combative and evasive. His final answer on the point clearly defied common sense and the path to that final answer did not reflect well on him.

k. More than most witnesses I have had the opportunity to observe, Sergeant Baxter had a tendency to ask for questions to be repeated. The questions in issue did not tend to be overly complicated or obtuse questions and one would have expected an easy understanding of those straightforward questions.

Does The Injury Constitute Bodily Harm?

The Criminal Code defines “bodily harm” as, “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” The elements of this definition are as follows:

a. Interference with the victim’s health or comfort, and:

b. More than transient or trifling.
The Court of Appeal for Ontario (unanimously on this point), has interpreted the necessary combination of the various “or”s in that definition and held that, “a hurt or injury that interferes with the health or comfort of a person and that is more than merely transient or more than merely trifling is sufficient to support a finding of bodily harm.¹⁹ Accordingly, if Mr. Stirtzinger’s injuries interfered with his health or comfort and were either more than transient or more than trifling, bodily harm is made out.
Medical evidence is not essential for bodily harm to be made out.²⁰
The Oxford Dictionaries define “transient” as “lasting only for a short time, impermanent”. The same source defines “trifling” as “unimportant or trivial”.
The photographs of Mr. Stirtzinger’s cheek a week after his interaction with Sergeant Baxter show a nasty gash approximately three to four centimetres in length. The photographs four weeks after the incident show that the wound has not yet fully healed and what appears very likely to be a scar on Mr. Stirtzinger’s face.
Parliament has clearly chosen to set the bar for “bodily harm” quite low. The use of words such as “transient” and “trifling” permit no other conclusion. It seems inescapable to me that the injury to Mr. Stirtzinger’s cheek necessarily affected his health or comfort, was certainly not trifling and, given the photographs almost a month after, can hardly be reconciled with the word “transient”.

Conclusion

In light of the foregoing I reach the following conclusions:
1. Sergeant Baxter had reasonable grounds to arrest Mr. Stirtzinger for assault;
2. Based on Mr. Stirtzinger’s previous history, Sergeant Baxter had reason to be cautious in his dealings with him, although I am satisfied that there was some exaggeration of the physical threat Mr. Stirtzinger posed to police officers generally, there was exaggeration of the level of force supposedly demonstrated by Mr. Stirtzinger in the present case and Sergeant Baxter’s conduct was not motivated by any actual fear of Mr. Stirtzinger spitting at him.
3. Notwithstanding a brief, original period during which Mr. Stirtzinger ignored Sergeant Baxter’s lawful commands to stop, by the time Sergeant Baxter put hands on Mr. Stirtzinger, Mr. Stirtzinger had demonstrated his compliance by stopping, turning around to face Sergeant Baxter and commencing to lower the Giant Tiger bag to the ground.
4. In the circumstances, Sergeant Baxter’s use of force to propel Mr. Stirtzinger against the fence was unnecessary, disproportionate and unlawful. The proffered justification for it was not true.
5. The injuries suffered by Mr. Stirtzinger were a direct consequence of Sergeant Baxter’s initial unlawful use of force, compounded by Sergeant Baxter pushing Mr. Stirtzinger against the fence and grounding him, all within a matter of seconds.
Accordingly, I answer the two central questions that arise in this case as follows:
1. Mr. Baxter is guilty of assaulting Mr. Stirtzinger.
2. The injury suffered by Mr. Stirtzinger as a result of that assault constituted bodily harm, applying the rather low threshold set out for that term in the Criminal Code.
Accordingly, I find Mr. Baxter guilty as charged.

Released: 22 January, 2018

In the outcome, by what I characterized to counsel at the time as a close call, I permitted Mr. Summerville to give evidence on the third category despite its proximity to the issues I have to determine as trial judge as I was reasonably confident that his views would not overwhelm my powers of discernment and that his evidence on that third issue would not greatly extend the length of the trial.

Whether that ruling by me was correct or not (and it may have been incorrect in light of what I have heard in evidence from Mr. Summerville), is water under the bridge. The bigger issue is the value of Mr. Summerville's evidence. I accept that Mr. Summerville has long experience and substantial expertise in the first two areas and his evidence on those areas was informative and useful. Ultimately, however, there is no added value for me to catalogue that evidence in these reasons. While Mr. Summerville served to encapsulate a lot of detail about use of force in a compact and focused package, the reality is that most of what he spoke to is not entirely new to anyone who has been involved in the criminal law for any substantial period of time. His evidence on the theory and principles of use of force was generally consistent with the theory and principles discussed by Sergeant Baxter. 

However, whatever value an expert may have in speaking on issues in the third category depends very firmly on the expert's awareness that his first duty is to the court and that he is neither a partisan nor an advocate, regardless of by whom he has been retained. Ultimately, I concluded that Mr. Summerville did not excel in the non-partisan aspect of the expert's role. Perhaps the most blatant example of this was his characterization of Mr. Stirtzinger as having a "passion" for violence. While there is no doubt that Mr. Stirtzinger has a flag for violence, the fact remains that he has three convictions for assault over more than a thirty-year period, the most recent of those being eight years ago. Even allowing for other sources of information about Mr. Stirtzinger beyond the criminal record, there was nothing on the record at this trial that would justify describing him as having a passion for violence. The word used by Mr. Summerville was hyperbolic and hyperbole does not easily co-exist with the expert's role. Mr. Summerville's later use of the word "ludicrous" to characterize any suggestion that Sergeant Baxter should have measured the force he used more discerningly, falls within the same lack of restraint in language that one would expect in an expert witness rather than a partisan.

I also noted that Mr. Summerville on several occasions gave rather long, convoluted "answers" to questions that lent themselves to straightforward, much shorter answers. Those answers, along with some shorter answers to questions, were not always responsive to the cross-examiner's questions. This is a poor sign in any witness, more so on the part of an expert.

Another "weakness" in Mr. Summerville's observations on how Sergeant Baxter's actions conformed to his training lies in the obvious fact that Mr. Summerville is not the trier of fact. There are clear discrepancies between the parties' views of precisely who did what when in this case and Sergeant Baxter's version of events largely does not prevail under scrutiny. To the extent that Mr. Summerville's conclusions are based on an acceptance of Sergeant Baxter's evidence (e.g. that Sergeant Baxter had physical challenges controlling Mr. Stirtzinger, which I reject), those conclusions are undermined accordingly. Another example is Mr. Summerville's assumption that when Mr. Stirtzinger's face was sliding along the fence, it was Mr. Stirtzinger directing that movement. I do not believe that the video recording supports the view that Mr. Stirtzinger was controlling that movement (or almost anything that happened against the fence for that matter). I would go further and say that I do not believe one could reasonably conclude on the basis of the video that Mr. Stirtzinger was controlling his movement.

Footnotes

I refer to this as an alleged assault solely because I do not know if Mr. Stirtzinger was ever found guilty and because, given Mr. Stirtzinger’s state of intoxication it may be possible that any contact between him and the store employee was unintentional. For the purposes of Sergeant Baxter’s trial, however, it does not matter what ultimately happened to Mr. Stirtzinger’s assault charge. It is an agreed fact that Sergeant Baxter had reasonable grounds to arrest Mr. Stirtzinger for assault and on the facts before me that agreement is unassailable.
Sergeant Baxter’s counsel commented upon the fact that the Crown had failed to call Mr. Stirtzinger as a witness. Either side here could have called Mr. Stirtzinger as a witness. Unless the Crown is motivated by bad faith or unless the failure to call the witness would cause an unfair trial, for neither of which there is even a whit of evidence here, the Crown is free to call those witnesses it deems appropriate to prove its case and not to call other witnesses: the governing principles are nicely summarized in the judgment of Pomerance, J. in R. v. Hillis, [2016] ONSC 451. See also R. v. Jolivet, 2000 SCC 29, [2000] S.C.J. No. 28. In the present case, the Crown explained that Mr. Stirtzinger had no memory of the events. The Crown’s choice not to call Mr. Stirtzinger strikes me as entirely within the Crown’s discretion, which is the end of the matter.
When asked to rate Mr. Stirtzinger’s level of intoxication on a scale of one to ten, with ten being falling-down drunk, Sergeant Baxter classified Mr. Stirtzinger as a six. The evidence of the store employee and the video evidence confirm that he was very drunk.
"Grievous bodily harm" has been taken to mean serious hurt or pain: R. v. Bottrell (1981), 60 C.C.C. (2d) 211, (B.C.C.A.).
A fairly recent consideration of this issue is found in the Supreme Court of Canada’s decision in R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at paragraphs 32-35, where the court comments briefly to the effect that a police officer’s use of force should not be measured with exactitude or against a standard of perfection given the nature of the circumstances they deal with and the frequent lack of any opportunity for measured reflection about which option to pursue in the use of force. A more encyclopaedic review of the principles governing judicial review of police use of force is to be found in the judgment of Hill, J. in R. v. DaCosta, 2015 ONSC 1586, [2015] O.J. No. 1235 (SCJ), paragraphs 92-94 of which, canvas the broad and long-running authorities that dictate the importance of ensuring that reviewing courts look at the situation through the eyes of an experienced police officer with due consideration given to the absence of time for reflection, the dynamic and sometimes perilous nature of some police-citizen confrontations and the numerous factors that need to be taken into account (several of which are set out in the decision of D.M. Brown, J. in R. v. Walcott, [2008] O.J. No. 1050 (SCJ), at paragraph 24).
See, e.g., Nasogaluak, supra, at paragraph 32: “But police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” At paragraph 34, the Court notes that s. 25 of the Criminal Code protects a police officer if she, “acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances.” (The first requirement is not in issue in Sergeant Baxter’s case: Mr. Stirtzinger was clearly arrestable for assault.) The officer must subjectively believe that the particular use of force was necessary and that belief must be objectively reasonable.
The defence called Steven Summerville as an expert witness with respect to use of force issues in policing. There was no argument about Mr. Summerville's qualifications, but there was a disagreement over what he should be allowed to testify on. The defence wanted Mr. Summerville to testify about (a) police training and use of force; (b) the education of police officers in use of force, handcuffing and grounding; and, (c) the consistency of Sergeant Baxter's actions here with his police training. The Crown agreed that Mr. Summerville could testify with respect to the first two areas but disputed the propriety of him testifying on the final area. There has, of course, been a growing concern about whether the expansion of "expert" testimony in trials is either necessary or desirable, including concerns about the impact of some experts on the length of trials and even about their potential to confuse triers of fact or usurp their function.
See, for example, R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont.C.A.).
The relative height and mass of the officer and the subject is one relevant criterion, specifically referred to in Walcott, supra. Mr. Summerville also testified that the reasonableness of an officer’s choice of use of force options would vary with such factors, giving the example of a one-hundred pound officer confronted by an assaultive three-hundred pound, martial-arts trained subject as an example where resort to deadly force would likely be justified. The same principle applies in reverse, although it is only one criterion to consider, including the possibility that a subject is armed, etc.
That may or may not be a factor here as I note that the two most recent entries on Mr. Stirtzinger’s CPIC record are for local convictions in Niagara in 2015 and 2016.
Sergeant Baxter’s repeated emphasis on grounding (which can be dangerous to the arrestee), as his “go-to” move raises concerns that he may not always be engaging in the situation-specific analysis that reasonable use of force requires. In this case, of course, he is on trial for what happened on one specific day, not for any pattern of behaviour.
I do not place weight on this oversight on Sergeant Baxter’s part as doing so might fall into the category of Monday morning quarterbacking, but it is a fairly fundamental principle that there is a better chance of people doing what one tells them to do if one has explained why one wants them to do it. Without an explanation, which could easily have been given and which might have changed Mr. Stirtzinger’s tone, the person being given the order might react poorly to an order that could seem arbitrary. The importance of clarity is heightened for someone in Mr. Stirtzinger’s condition, who may have had no clue about hitting Ms. Doan and who might even have hit her by accident in his staggering, thus thinking, “I didn’t assault nobody”.
I found it peculiar that there are two points in the video footage where Sergeant Baxter glanced, however briefly, down to his left, which, given the geography of the place appears to be the only direction from which a passer-by might happen to observe what was happening. The first of these glances is just as Sergeant Baxter is pushing Mr. Stirtzinger against the fence. The second is just before he grounds Mr. Stirtzinger. It might be argued that the second glance involved a search for a suitable grounding location, but the whole area was flat concrete, which would have been evident from the outset. Given Sergeant Baxter's testimony that he was very concerned about Mr. Stirtzinger having weapons and given that a dynamic situation can change in a flash, these were peculiar glances, especially since the whole justification for grabbing Mr. Stirtzinger and pushing him against the fence was supposedly Sergeant Baxter’s fear that Mr. Stirtzinger was going for a weapon at his waist. While determining the reason behind these two glances is not necessary to the conclusion I reach in this trial, they do cause one to ponder what reason underlay them.
The Use of Force Wheel, which is part of an officer’s training and which was discussed at length before me is not law but does serve generally as a useful tool in measuring appropriate responses to variable levels of threat or reasonably perceived threat.
The search did not result in the discovery of any weapons on Mr. Stirtzinger, including around the waist/pocket area. The fact that an officer does not find weapons, I stress, is not the same as concluding that the same officer did not have a rational basis for fearing that there were weapons or might be something to create risk for the officer or the public. I have already rejected Sergeant Baxter's rationale for moving in on Mr. Stirtzinger based on the sequence of events in the video recording. Although this observation is not necessary to my conclusion, one does wonder why Mr. Stirtzinger would move his hands up to and under his shirt if there was nothing there.
R. v. S. (W.D.), [1994] 3 SCR 521.
See, for example, the comments of Garton, J. in R. v. Antoniak, 2007 ONSC: [24] It should be remembered that an officer’s notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer’s independent recollection from the equation. The notes would become the evidence. [25] The significance of an omission in an officer’s notebook, just like the significance of an inconsistency in a witness’s testimony, must be determined by the trier of fact on a case-by-case basis……
It bears noting that this repeated viewing of the video does not fall afoul of the rule against armchair quarterbacking. The rule against armchair quarterbacking forbids an over-exacting, unfair or artificial after the fact hyper-analysis of decisions made by police officers in dynamic circumstances. The review of the videotape, by contrast, involves determining the existence of objective events that have been used as the rationale for an exercise of discretion by the officer. My review of the video since the trial has sought to determine if there is any way I can square Sergeant Baxter's testimony with what the video shows, if there is any way that his testimony on that point can be believed or can create reasonable doubt. Despite countless re-windings and re-playings, the two things cannot be squared and there is also no way in which Sergeant Baxter could have honestly or reasonably perceived the events he described about Mr. Stirtzinger reaching for his waist.
R. v. J.A., 2010 ONCA 226 at paragraph 101 (Laforme, J.A. dissenting in the result but concurring with the majority on this point).
R. v. Giroux, 1995 ABCA 393, at paragraphs 3 – 4.

R. v. Baxter, 2018 ONCJ 607

Case Summary

Overview

Questions in Issue

Relevant Principles

The Evidence

What Is Known About Mr. Stirtzinger

The Evidence of Tracey Doan

The Evidence of Sergeant Michael Baxter

Does The Injury Constitute Bodily Harm?

Conclusion

Footnotes

R. v. Baxter, 2018 ONCJ 607

Case Summary

Overview

Questions in Issue

Relevant Principles

The Evidence

What Is Known About Mr. Stirtzinger

The Evidence of Tracey Doan

The Evidence of Sergeant Michael Baxter

Does The Injury Constitute Bodily Harm?

Conclusion

Footnotes

Cited By (1 case)

R. v. Mukhi, 2021 ONCJ 570

Cited By (1 case)

R. v. Mukhi, 2021 ONCJ 570