ONTARIO COURT OF JUSTICE DATE: 2022 02 09 COURT FILE No.: 20-3262

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PAUL TRANTER

Before Justice G. L. ORSINI

HEARD March 24-25, 2021, June 23 and 25, 2021, July 21, 2021, November 15, 2021, January 21, 2022 Reasons for Judgement released on February 9, 2022

Ms. R. De Filippis............................................................................... counsel for the Crown Mr. B. Cummins...................................................... counsel for the accused Paul Tranter

ORSINI J.:

INTRODUCTION

1Paul Tranter, a Staff Sargent with the Waterloo Police Service (hereinafter WPS), was charged with assaulting Jamie McFadyen thereby causing bodily harm to him contrary to section 267 (a) of the Criminal Code of Canada.

2The charge arose from of an altercation on March 5, 2020 when Mr. McFadyen was being booked into the WPS detachment following his arrest earlier that evening. The booking video showed several officers struggling with Mr. McFadyen on the floor in front of the booking desk when Sgt. Tranter approached and delivered multiple punches towards the face and upper torso of Mr. McFadyen.

3It was conceded that the force applied by Sgt. Tranter resulted in bodily harm to Mr. McFadyen specifically, fractures to the right side of his face which included a broken nose and orbital bone under his right eye.

4In support of the charge, the Crown called Constable Hennig and Constable Tamayo. They were involved in the arrest and transport of Mr. McFadyen to the police station and were among the officers who struggled to gain control of him prior to the actions of Sgt. Tranter.

5Mr. McFadyen did not testify.

6The defence called 8 witnesses including Sgt. Tranter. They included 2 other officers and 2 special constables also involved in attempting to control Mr. McFadyen, another officer who was in the area and made observations, one officer who assisted Mr. McFadyen at the hospital and a use of force expert.

7The issue for this court’s determination is whether the force used by Sgt. Tranter was justified pursuant to section 25 of the Criminal Code. Did he act on reasonable grounds in using as much force as was necessary to accomplish what he was authorized or required to do as a police officer?

POSITION OF THE PARTIES

8The Crown conceded that Mr. McFadyen became assaultive during the booking process and that some force was justified to restrain him but submitted the nature of the force used (punching) exceeded what was reasonable in the circumstances. The Crown submitted that Sgt. Tranter should be convicted of an assault causing bodily harm.

9In the alternative, the Crown submitted that one or two punches would not have been unreasonable if this court were to find that Mr. McFadyen was about to punch Constable Tamayo. On this scenario, the Crown submitted that the additional punches exceeded what was reasonable in the circumstances but agreed that since bodily harm may have been caused by the first few punches, the court could only convict Sgt. Tranter of a simple assault.

10The defence submitted that Sgt. Tranter’s actions constituted a reasonable and proportionate use of force, consistent with his training and necessary in preventing injury to Constable Tamayo who was being assaulted by Mr. McFadyen. The defence submitted that second guessing the decision of Sgt. Tranter would be inappropriate in this case given the speed with which things were unfolding and the brief period of time he had to react to those circumstances.

FACTS

The Arrest

11The facts are not terribly in dispute.

12Constable Tamayo and Constable Hennig were on routine patrol on the evening of March 5, 2020 when they were dispatched to deal with an intoxicated male who was walking in the middle of the road in the downtown core of Kitchener, Ontario. They drove to the area and found Mr. McFadyen walking in the middle of King Street.

13He complied with their instructions to get off the roadway but refused to identify himself. He said his name was “Marco Polo”.

14Given Mr. McFadyen’s level of intoxication and the risk that he would endanger himself and others by wandering back into traffic, Constable Tamayo decided to arrest him for public intoxication and take him to the police station. He was handcuffed behind his back and placed into the police cruiser.

15This was clearly not the preferred option. After learning of his identity, Mr. McFadyen refused to provide any information that would assist the officers in getting him to a place of safety or the care of responsible person. Constable Tamayo indicated that the local shelter was full, and that Mr. McFadyen was not so intoxicated as to warrant admission to a hospital. Bringing him to the police station was a last resort.

The Ramp Estcourt

16The video filed as an exhibit in these proceedings shows Mr. McFadyen’s arrival at the police station where he is walked down a hallway ramp from the garage area and taken before Sgt. Tranter at the booking desk where the altercation occurs. As indicated above, several witnesses gave evidence as to their observations.

17It is worth noting at this point, that since this case involves a defence under section 25 of the Code, the principle evidentiary focus is necessarily on what Sgt. Tranter saw or heard and how this factored into his decision to take the action he did. I say this because there was some evidence as to what other witnesses knew about Mr. McFadyen or observed before, during and after the altercation. Clearly, what happened after the altercation is of limited value in assessing the use of force in this case. The evidence of other witnesses is relevant only insofar as it supports or contradicts that of Sgt. Tranter. Put another way, if a witness gave evidence as to observations or knowledge that was not in the mind of Sgt. Tranter, it could not be relevant to his thought process. It is with this in mind that I approach the evidence of Sgt Tranter.

18Sgt. Tranter was in his twenty-second year as a police officer and had been a Sargent for twelve years – all with the WPS. He had been stationed at the Central Division, where the incident occurred, since 2016 and spent most of his time in charge of the cell block where individuals are processed after being arrested and brought to the station. As with all officers, he has completed yearly use of force training.

19Sgt. Tranter testified as to what he observed while standing behind the booking desk as Mr. McFadyen was being escorted down the ramp towards him. He acknowledged his view was limited as he was looking through a window on the door leading from the ramp into the booking room.

20He could not recall having any prior dealings with Mr. McFadyen but recalled Special Constable Ambrose, who was standing to his left, said “This is going to be a shit show”. He assumed from this that she had prior dealings with Mr. McFadyen. This evidence was confirmed by the Special Constable, including the fact that she had prior dealings with Mr. McFadyen.

21Sgt. Tranter testified that Mr. McFadyen stopped and backed into the path of Constable Tamayo as they were coming down the ramp. He thought he had bumped Constable Tamayo into the left wall. His training taught him that this gave rise to a danger that Mr. McFadyen, who was cuffed from behind, was trying to access something on the officer’s duty belt where various weapons, including the officer’s firearm, are located. He said this was very unusual behaviour for someone being escorted down the ramp.

22He testified that this happened a second time, following which Constable Tamayo pushed Mr. McFadyen over towards the right side of the hallway. He could hear Constable Tamayo speaking sternly to Mr. McFadyen as they then continued down through the door at the end of the ramp and towards the booking desk approximately 10 feet away.

23Sgt. Tranter’s observations were confirmed by the evidence of Constable Tamayo, Constable Hennig and Special Constable Ambrose as well as the video itself. I find that Mr. McFadyen was providing some resistance towards Constable Tamayo while being escorted towards the booking desk area.

The Booking Desk

24The video shows that Mr. McFadyen becomes upset after bumping up against the front of the booking desk with his chest. As this occurs, Constable Tamayo is holding on to Mr. McFadyen’s jacket collar area from behind and directing him towards the desk.

25Thereafter, Mr. McFadyen turns towards Constable Tamayo and begins pushing him backward toward a wall using his upper body and left shoulder. Constable Tamayo, with the assistance of Constable Hennig and Special Constable Palomeque, manages to restrain Mr. McFadyen up against the wall next to the doorway. They then move Mr. McFadyen back to the front of the booking desk area where he again uses his shoulder to push back against Constable Tamayo. Mr. McFadyen can be heard speaking in an angry tone and calling Constable Tamayo a “fucking bitch”.

26Sgt. Tranter can be seen behind the booking desk observing what is occurring. He appears to be calm and almost motionless until Mr. McFadyen is being moved back towards the booking desk. At that point, Sgt. Tranter can be seen slowly stepping down from the booking desk at one end and putting on a pair of latex gloves as he converses with Mr. McFadyen, who is now almost immediately in front of him.

27After being brought back to the booking desk, the following conversation occurs:

Tranter: Sir just calm down, calm down McFadyen: I am..(indecipherable) Tranter: I’ve seen some people down here today who truly were calm and none of this happened McFadyen: (indecipherable)… this little bitch is not from this City and now he knows he’s fucked. Tranter: What’s your name sir? McFadyen: Jamie McFadyen…you mother fucker.

28Sgt. Tranter testified that he was speaking to Mr. McFadyen in a calm voice to de-escalate the situation. He said there was a lot of pushing and shoving going on and that his training taught him that speaking in a calm tone can assist in bringing calm to a situation. He said Mr. McFadyen did not mirror his tone. He testified that Mr. McFadyen was directing his anger towards Constable Tamayo – referring to the officer in derogatory terms and saying the officer was “not from here”. He took this to be a reference to Constable Tamayo’s heritage.

29From listening to the recording of the conversation, I find that Sgt. Tranter was indeed speaking to Mr. McFadyen in a calm tone. I also note that his demeanor was calm despite what was occurring at the time. He was neither rushed nor impatient.

30The video then shows Sgt. Tranter going back behind the booking desk as Constable Tamayo begins removing the handcuffs from Mr. McFadyen. Constable Tamayo said he thought this would potentially relax Mr. McFadyen and de-escalate the situation. Constable Hennig was also standing behind Mr. McFadyen to the immediate right of Constable Tamayo.

31Constable Tamayo testified that he uncuffed Mr. McFadyen’s right wrist but that when he went to uncuff the left wrist, Mr. McFadyen began pulling his arm away and kicked back at Constable Hennig. He testified that Mr. McFadyen then turned towards him in a fighting stance and that he thought he was going to be either headbutted or kicked.

32At this point, Constable Tamayo thought he had lost control of Mr. McFadyen and decided to take him to the ground to regain control. He eventually manages to pull Mr. McFadyen down onto his back immediately in front of the booking desk.

33The evidence to this point is confirmed by the video, which shows Mr. McFadyen being grounded after kicking back at Constable Hennig and while struggling with Constable Tamayo over the removal of the handcuff. Constable Hennig also confirmed that she was kicked in the shin.

34Sgt. Tranter became aware the right handcuff had been removed when Mr. McFadyen placed his right hand on top of the booking desk. He said he did not see the kick to Constable Hennig but did observed Mr. McFadyen struggling with Constable Tamayo over the removal of the other handcuff.

35He said, and the video shows, that he held Mr. McFadyen’s right wrist against the top of the booking desk. He said he did this to gain control of Mr. McFadyen who looked like he was going to turn towards Constable Tamayo. He said Mr. McFadyen demonstrated a considerable degree of strength in trying to pull his hand away. I note the video shows Sgt. Tranter using both hands while holding onto Mr. McFadyen’s wrist.

36After Mr. McFadyen was grounded, Sgt Tranter comes out from behind the booking desk. By this time, four officers appear to be struggling on the ground to gain control of Mr. McFadyen. Constable Tamayo and Constable Hennig are positioned toward the upper torso while to other officers, Constable Krigner and Constable Klomps, are attempting to control Mr. McFadyen’s legs.

37While the officers are struggling on the ground to gain control of Mr. McFadyen, Sgt. Tranter approaches, drops to his knees and begins administering blows to the head/upper torso area of Mr. McFadyen. The video shows that he delivered four quick blows in the span of 3 seconds followed by a pause of approximately 2 seconds and then two more quick blows. In total, the time between the first and last blow was approximately 5-6 seconds.

38He said he did not believe all the blows landed but that one hit Mr. McFadyen’s arm, one hit his chest and that “I must have hit him in the face”.

The Justification

39Sgt. Tranter testified that he administered the blows in defence of Constable Tamayo based on the following observations:

(a) That Mr. McFadyen grabbed at the neck area of Constable Tamayo and pulled him down to one knee; (b) That he heard Constable Tamayo say “don’t choke me”; and (c) That while holding on to Constable Tamayo with his left hand, Mr. McFadyen had his right hand cocked in a fist;

40Based on the totality of the circumstances leading up to that point in time, he said he believed Mr. McFadyen was going to punch Constable Tamayo and possibly cause an injury to his neck. He said he made a split-second decision to administer blows in quick succession in order to eliminate the risk as quickly as possible – that he stopped when Mr. McFadyen went from being assaultive to defending himself and said words to the effect of “okay, okay, I give up”. It was at this point that he said he thought they were getting Mr. McFadyen under control.

41Constable Tamayo testified that Mr. McFadyen grabbed his neck area on two separate occasions while on the ground, the first of which he identified as occurring at 1 minute and 10 seconds into the video as depicted on exhibit 1(e).

42He also said that when Mr. McFadyen was eventually brought under control, he checked his throat area for injuries. This can be seen on the video at 2 minutes and 24 seconds.

43Sgt. Tranter testified that he did not think he saw the first grab.

44With respect to the second grab, Constable Tamayo stated, “He was still – I remember saying, uh, don’t touch my throat, or stay away from my throat, or something to that effect, um, and then – then shortly thereafter is when I heard the strikes being delivered”. He described how Mr. McFadyen had managed to pull him down to one knee.

45Another Officer, Constable Thomas, who approached the altercation from a nearby interview room, testified that he heard someone say something along the lines of “chocking”. He was unable to say who said this or precisely when it was said.

46I have reviewed the video and find that there is some support for this “second grab” at approximately 1 minute and 13 seconds into the video. It appears that Mr. McFadyen is reaching up with his left hand towards Constable Tamayo just prior to Sgt. Tranter administering the blows in question. This was acknowledged by the Crown in submission.

LAW

47In the context of a criminal trial is important to remember that the Crown always bears the burden of proving its case beyond a reasonable doubt.

48Where, as here, a defence of lawful justification is raised, the Crown bears the onus of disproving the defence beyond a reasonable doubt provided the defence itself has as an air of reality. (see R v. Cinous, 2002 SCC 29, [2002] 2 S.C.R 3)

49Where assessments of credibility are involved, it is important to remember that criminal trials are not credibility contests. It is not a matter of deciding which version of events is more believable.

50An accused person is not required to testify or to call any evidence, nor is he obligated to explain anything.

51However, given that Sgt. Tranter did testify in his own defence, I remind myself of the following principles enunciated by the Supreme Court of Canada in Regina v. W.(D.), [1991] S.C.J. No. 26:

1. If I believe the testimony of Sgt. Tranter that he did not commit the offence with which he is charged, I must find him not guilty;
2. Even if I do not believe the testimony that he did not commit the offence, if his testimony leaves me with a reasonable doubt as to his guilt, I must find him not guilty; and
3. Even if the testimony of Sgt. Tranter does not leave me with any reasonable doubt as to his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

52It must be remembered, however, that the test in W.(D.), and specifically, the question of whether the trier of fact is left in reasonable doubt by the evidence of the accused, was never meant to apply to that evidence viewed in isolation from the rest of the case. The accused’s evidence must be considered in the context of all the other evidence heard. The determination of whether the accused’s evidence is believed, or raises a reasonable doubt, must only be made after considering that evidence in the context of the evidence as a whole. It is not simply a question of whether the accused’s evidence, standing alone, might reasonably be true.

53In this case, the defence relies on a lawful justification under section 25(1) of the Code which provides as follows:

25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law...as a peace officer... is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

54The protection provided by this section is constrained by the concepts of proportionality, necessity and reasonableness. As indicated by Justice LeBel in the case of R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 32"...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."

55The officer must honestly believe that the forced used was necessary and reasonable in the circumstances. That belief must be objectively reasonable. ( see Nasogaluak at para. 34).

56In making an objective assessment, the court must consider all the circumstances known to the officer. ( see R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at para. 83)

57However, in considering those circumstances, fairness dictates that courts avoid excessive reliance on hindsight or second guessing. Officers are often required to make quick decisions. Although this does not provide them with a “free pass”, the fact remains that they often do not enjoy the same luxury of time that is available to the court when assessing such decisions. Accordingly, as indicated by Justice Binnie in R v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3 at paragraph 73, “ A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.” ( see also R v. DaCosta, 2015 ONSC 1586, [2015] O.J. 1235 at para. 98-99).

ANALYSIS

58No issue was taken in this case with the availability of a section 25 defence.

59Sgt. Tranter was acting in his capacity as a police officer and had a duty to protect his fellow officer’s. There is no suggestion that the defence does not have an air of reality to it. As indicated above, the Crown fairly conceded that some force was necessary to restrain Mr. McFadyen, who had become assaultive.

60Accordingly, the Crown bears the burden of proving beyond a reasonable doubt that the defence has not been made out.

61The Crown fairly conceded that Sgt. Tranter honestly believed that the force he used was necessary, reasonable and proportionate. The only issue therefore is whether this belief was objectively reasonable.

62I would add to this that, in the courts view, this is not one of those cases where an officer appears to be responding out of anger or frustration or impatience. Sgt. Tranter’s behaviour, as observed on the video and recorded on a separate audio, file demonstrates that he was calm and otherwise unfazed by what was occurring until immediately before administering the blows. Thereafter, his demeanor is calm and professional. He directs that an ambulance be called and advises Mr. McFadyen that he will be taken to the hospital to have his injures treated.

63The Court heard evidence from an expert in police use of force training. Given the above concession, this evidence is of limited value. While such evidence would otherwise be relevant to an officer’s honest belief in what constituted reasonable force, it can hardly be said to drive the courts finding as to what is objectively reasonable. Simply put, police training should correspond to what the court considers objectively reasonable and not the other way around.

64Having considered Sgt. Tranter’s evidence in the context of all the evidence in this case, I find that he testified in a straightforward and honest fashion. His evidence was largely corroborated by other witnesses and the video evidence. He did not exaggerate the threat posed by Mr. McFadyen and appeared sincerely remorseful that he had caused him harm.

65From an objective standpoint, I find that the circumstances justified Sgt. Tranter in using force to prevent an assault upon Constable Tamayo. Those circumstances included the following:

i. Mr. McFadyen was under arrest for being intoxicated in a public place and presented as such; ii. Mr. McFadyen was, at the very least, resistant to the direction of Constable Tamayo while being escorted down the hallway towards the booking desk; iii. While Mr. McFadyen was likely the subject of a pat down search when arrested, he had not undergone a full search of his person; iv. Mr. McFadyen was verbally and physically assaultive when he first arrived at the booking desk and had to be restrained against the back wall; v. Mr. McFadyen’s assaultive behaviour was directed towards Constable Tamayo in particular; vi. Mr. McFadyen refused to respond to verbal tactics aimed at calming him down; vii. Mr. McFadyen became resistant and assaultive towards Constable Tamayo when the handcuffs were being removed resulting in him being physically grounded. viii. At the time, Constable Tamayo was wearing his duty belt which included his firearm; ix. Mr. McFadyen continue to resist officers and was effectively fighting the officers on the floor in front of the booking desk; x. Mr. McFadyen was approximately 5’8”- 5’9” and weighed approximately 220 lbs. He was angry, aggressive and exhibiting significant strength; xi. Despite being outnumbered by 4 other officers, Mr. McFadyen was difficult to control; xii. Mr. McFadyen used his left hand to grab at the neck area of Constable Tamayo’s vest and pull him down. While doing so, he had his right arm pulled back with his hand in a fist as if to punch Constable Tamayo; xiii. Immediately prior to this, Constable Tamayo could be heard telling Mr. McFadyen not to touch his neck/throat area;

66Given those circumstances, I am not satisfied beyond a reasonable doubt that the force used was objectively unnecessary, unreasonable or disproportionate.

67I accept that Mr. McFadyen was exhibiting significant resistance as evidenced by the difficulty officers had in controlling him while on the ground. I find that Sgt. Tranter’s belief that Mr. McFadyen could cause harm to Constable Tamayo was objectively reasonable and that he reasonably believed there was a need to take immediate and decisive action. Grabbing at the area surrounding an officer’s neck or throat creates significant safety concerns.

68In coming to this conclusion, I have considered the Crown’s submission that the number of blows was excessive. I am unable to come to that conclusion for the following reasons:

i. We do not know how many of the blows landed; ii. The force was applied over a very short period, consisting of six short punches in approximately 5-6 seconds; iii. I accept Sgt. Tranter’s evidence that he stopped when the risk to Constable Tamayo had been eliminated;

69I have also considered the relative speed with which matters unfolded. Sgt. Tranter did not have the benefit of time. He heard Constable Tamayo telling Mr. McFadyen not to touch his throat/neck area. He saw Mr. McFadyen reach for that area and pull the officer down. As he stated to the court, “ I was using my eyes and taking in what I was seeing right in front of me and responding using my – my discretion and – and just making split second decisions the best way I could…. I’m making a split-second decision targeting the part of his body that’s available to me and thinking what can I do to end this assault right now?” I accept that evidence.

70Sgt. Tranter candidly admitted he did not consider other options and felt the need to react quickly. In the circumstances, I find that the force used was not so outside the range of reasonably available options as to warrant engaging in the type of second guessing discussed above.

CONCLUSION

71For all the above reasons, I find Sgt. Tranter not guilty.

Released: February 9, 2022

____ ”G.L. Orsini” ________________