ONTARIO COURT OF JUSTICE DATE: 2024 09 24 COURT FILE No.: Thunder Bay 23-42100983

BETWEEN:

HIS MAJESTY THE KING

— AND —

RYAN DOUGHERTY

Before: Justice P.T. O’Marra Heard on: July 22-26, 2024 Reasons for Judgment released on: September 24, 2024

Counsel: V. Karadzic, counsel for the Crown M. Hargadon, counsel for the accused Ryan Dougherty

P.T. O’MARRA J.:

Preamble

Police play a vital role in our society. We look to the police to keep us safe. Police are granted special authority and powers to perform that function. When police act beyond the scope of their authority or powers, the population loses confidence in the police and the justice system. Such loss of confidence can undermine the safety of everyone, police included. We have seen tragedies involving police abuse of power and the converse; police are targeted because of their uniform. Lawful use of force by police is essential in maintaining a just, peaceful, and safe society. Unlawful use of force threatens such a society. Accordingly, it is critically important to properly assess the evidence in this case and apply the law fairly, transparently, and, ultimately, correctly: R. v. Pietrzak, [2022] B.C.J. No. 2527, at para. 3.

Introduction

[1] Ryan Dougherty, a Police Constable with the Thunder Bay Police Service, is charged with assaulting John Semerling and causing bodily harm to him contrary to section 267 (b) of the Criminal Code of Canada.

[2] The Crown elected to proceed summarily. Officer Dougherty pleaded not guilty. The trial lasted five days. After submissions, the matter was adjourned to today for my Reasons for Judgment.

Background

[3] The charge arose from the attempted re-apprehension and arrest of Mr. Semerling while he was walking on Oliver Road after he wandered away from the Thunder Bay Regional Health Sciences Centre ("the Hospital") in the early morning of November 8, 2022. Earlier in the evening of November 7, 2022, other officers apprehended Mr. Semerling under the Mental Health Act (M.H.A.) and brought him to the Hospital.

[4] Officer Dougherty was working in a uniform patrol capacity on November 8, 2022. While at the Hospital in the early morning hours on an unrelated call, a nurse advised him that Mr. Semerling had left and needed to be apprehended.

[5] Officer Dougherty located Mr. Semerling walking on Oliver Road near the Hospital, which led to a physical altercation with Mr. Semerling.

[6] Mr. Semerling was transported back to the Hospital in Officer Dougherty's patrol cruiser and returned to the custody of the Hospital staff under the original M.H.A. apprehension.

[7] On November 8, 2022, at 3:21 a.m., a physician issued Mr. Semerling a Form 1 under the M.H.A.

[8] Later that morning, Mr. Semerling was picked up by his son.

[9] On November 9, 2022, Mr. Semerling returned to the Hospital and was diagnosed with a fractured nose and concussion.

[10] Mr. Semerling complained to the Office of the Independent Police Review Director (OIPRD) regarding his injury and treatment by Officer Dougherty. Subsequently, the Special Investigations Unit (SIU) was contacted by the OIRPD. The SIU charged Officer Dougherty.

[11] The parties conceded that the force applied by Officer Dougherty resulted in bodily harm to Mr. Semerling.

[12] The Crown called the following witnesses to support the charge: Officer Nicholas, Alanna Hughes, a Crisis Worker at the time, Officer Legros, Officer Kampela, and the complainant, Mr. Semerling.

[13] At the outset of the trial, an agreed statement of fact was filed along with Mr. Semerling's medical charts dated November 8th and 10th, 2022, and the Thunder Bay Police Service directive and policy on the "Police Response to Persons Suffering from a Mental Illness." Officers' body-worn cameras, in-car, and hospital surveillance footage were admitted without authentication through any witness. Counsel agreed that all radio communications and computer-aided dispatch details (ICAD) were admissible without authentication through a witness.

[14] Two photographs that Mr. Semerling took of his injuries were filed. The pictures were taken the same day Mr. Semerling sustained the injuries. There was noticeable bruising below Mr. Semerling's left eye and abrasions on his right cheek and the right side of his chin.

[15] Officer Dougherty testified. It was his right to do so. The Defence called no additional evidence.

The Issue

[16] The issue for this court's determination is whether the force used by Officer Dougherty was justified under 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?

The Evidence

The Mental Health Act Apprehension at Mr. Semerling’s Residence

[17] Just before midnight on November 7, 2022, and into the early morning hours on November 8, 2022, Officer Nicholas and his partner, Officer Bamford, responded to a call to assist with a potential M.H.A. apprehension at a residence at 142 Hill Street, in Thunder Bay.

[18] Mr. Semerling, his wife, and one of their sons reside at 142 Hill Street.

[19] Officer Hjork arrived on the scene with Alanna Hughes as the Integrated Mobile Police Assessment Crisis Team (IMPACT). The two-person team comprises one CMHA worker, and one Crisis Incident trained police officer. The primary function of the IMPACT is to respond to in-progress calls involving mental health crises. Ms. Hughes was a civilian working in her capacity as a Crisis Worker.

[20] Mr. Semerling's former co-worker contacted 911. Earlier in the evening, Mr. Semerling had texted Tom Lachinette a series of disturbing text messages, which alarmed Mr. Lachinette that Mr. Semerling was going to kill himself after his wife went to bed. En route, the police also discovered that Mr. Semerling had registered firearms.

[21] The interactions between the police and Mr. Semerling outside and inside his residence were captured entirely on the officers' body-worn cameras. At all times, the officers were professional and sensitive. In my view, this was a textbook approach to how to peacefully apprehend a person suffering from a mental health illness in crisis. The police treated Mr. Semerling with respect, compassion, and dignity.

[22] When Mr. Semerling answered the door, he was crying. The officers quickly learned that Mr. Semerling had been fired from his position as a youth worker at the Matawa Education Centre. Mr. Semerling was appreciative of the officers' concerns but denied that he wanted to commit suicide.

[23] The officers were permitted to enter the residence to check on Mr. Semerling’s wife's well-being, who was sleeping upstairs.

[24] Officers observed empty beer bottles and marijuana on a table in the living room. Officer Nicholas felt that Mr. Semerling was intoxicated but "not very, very intoxicated."

[25] Mr. Semerling unlocked his iPhone and permitted the officers and Ms. Hughes to read his text messages. The troubling messages included the following:

• "I am going to meet my maker."
• "Waiting for my wife to go to bed, and then I am going to do it."

[26] Mr. Semerling’s wife came downstairs, and her interaction was also captured on the officers’ body-worn cameras. She felt that his behaviour was out of the ordinary.

[27] Mr. Semerling admitted that he had attempted suicide on three occasions. On the last occasion, approximately 23 years ago, Mr. Semerling tried to hang himself in his garage.

[28] Officer Nicholas and the Crisis Worker formed grounds to apprehend Mr. Semerling under the M.H.A. and bring him to the Hospital.

[29] Mr. Semerling asked if he could take his beer to the Hospital, which, of course, the officers advised him that he could not, but they permitted him to finish it. He was handcuffed to the front. Mr. Semerling was not very happy about the apprehension, and when he was handcuffed, he turned his head to his right and towards his wife and, in a loud and angry voice, stated, this is the "last time fucking time that this ever ever ever happens to me again."

[30] In cross-examination, Officer Nicholas agreed that Mr. Semerling had difficulty controlling his emotions and tried to mask his true feelings. He fluctuated from sadness to happiness to anger. He changed his mood at the front of the house and displayed hostility towards his former employer, referring to them as "those fuckers." Mr. Semerling also became artificially humorous while inside the home. Officer Nicholas stated that his rapid change in emotion heightened the police's concern that he was an imminent threat to himself or others and reinforced their grounds to apprehend him.

[31] Ms. Hughes testified that after she viewed the messages on Mr. Semerling’s iPhone and spoke to him about them, she felt that he should be taken to the Hospital for further assessment due to Mr. Semerling's reasons for the messages.

[32] The Crown played the video of Officer Hjork's body-worn camera. It captured the interaction between Ms. Hughes, Mr. Semerling, and his wife.

[33] The police seized two hunting rifles that were not appropriately secured in two upstairs bedrooms and loose ammunition in a closet.

[34] Ms. Hughes learned that Mr. Semerling has tried to harm himself in the past. He has been diagnosed with PTSD and depression. He has not been taking his medication. He was deeply affected by a youth's suicide over the weekend. Then he was fired.

John Semerling’s Testimony

[35] Mr. Semerling is 62 years old. He has resided in Thunder Bay since 1999. He has been married for 23 years. He has three children and six grandchildren. Mr. Semerling is a Deacon ordained in the Roman Catholic Church.

[36] Mr. Semerling is 5 feet 7 inches and 260 lbs.

[37] Mr. Semerling is a social worker. He had been on a three-month contract at the Matawa Education Centre but was terminated on the day he was apprehended under the M.H.A. The events saddened him, and he took his termination very hard.

[38] Mr. Semerling recalled that he interacted with his former co-worker, Tom Lachinette, by texting about how saddened he was about losing his job. He testified that he was not suicidal, and the police conducted a wellness check on him. Mr. Semerling admitted that he deleted the messages off his phone after this ordeal.

[39] Mr. Semerling had trouble recalling the events of the evening. He had significant gaps in his memory concerning what happened at the hospital, at his home, and his interaction with Officer Dougherty on Oliver Road. He stated that he had smoked half a joint and consumed three beers before the police arrived at his home. Mr. Semerling claimed that he was not intoxicated and rated himself as one out of ten on the intoxication scale.

[40] Mr. Semerling downplayed his level of intoxication. When he gave his statement to the SIU, he did not tell the investigators that he had interacted with a crisis worker that night. He only recalled his conversation when he watched the body-worn camera video of his interaction with Ms. Hughes.

[41] Mr. Semerling agreed that all officers were cordial and kind when he was apprehended. He did not like being handcuffed, but he understood that the police had a job to do.

The Hospital and Mr. Semerling's Flight

Officer Dougherty's Testimony

[42] Officer Dougherty is 50 years old. He grew up in Thunder Bay. He has been a sworn police officer in Thunder Bay since 2019. Currently, Officer Dougherty is a First-Class Constable. He is married and has two children.

[43] Officer Dougherty is 185-190 lbs.

[44] During the shift in question, Officer Dougherty was a coach officer. He was training Officer Baxter. Their shift commenced at 7 p.m. and ended at 7 a.m.

[45] Officer Dougherty confirmed that he had a body-worn camera in the center of his chest. Officer Dougherty could have activated the camera by double-pressing a button, gunshots, speed of his vehicle, and or emergency lights going on.

[46] Officer Dougherty and Officer Baxter attended the Thunder Bay Regional Health Sciences Centre at 2:12 a.m. on November 8, 2022, along with E.M.S., because a teenage girl sliced her wrists in an attempted suicide and had been apprehended under the M.H.A.

[47] Officer Baxter took the lead in investigating the teenage girl's claim that her father had sexually assaulted her.

[48] The officers were waiting for her mother to arrive.

[49] Officer Dougherty testified that while they were waiting, he saw Officers Bamford and Nicholas with Mr. Semerling. Officer Dougherty had already heard over his radio that evening that those officers had attended Mr. Semerling's residence after he had texted a co-worker about harming himself after his wife went to sleep. They had apprehended him and had concerns about the firearms in his house.

[50] While at the Hospital, Officer Dougherty found out from Officer Bamford that when Mr. Semerling had been advised that his firearms had been seized, he laughed and stated that shooting himself would be too messy and that he would simply hang himself.

[51] Officer Dougherty walked over to Mr. Semerling’s room and observed him through a window. Officer Dougherty testified that Mr. Semerling was "tucked off in the northeast corner of the room. He was rocking back and forth from heel to toe, facing the wall, and slightly bumping his head off the wall and crying."

[52] A few minutes later, Officers Bamford and Nicholas were cleared to leave the Hospital and return to their station for lunch.

[53] Officer Dougherty remained in the hallway with a nurse and the two security guards. He recalled Mr. Semerling leaving his room and being told to return to his room.

[54] Officer Dougherty recalled that a nurse approached him and was upset that Mr. Semerling had left his room and could not be located.

[55] Officer Dougherty testified that given what he had learned about Mr. Semerling, he was "worried for Mr. Semerling" and that he was going to kill himself.

[56] By this time, Officer Kampela had arrived with another M.H.A. apprehension. Officer Dougherty asked him to assist Officer Baxter with the teenage girl.

[57] Officer Dougherty began to search the Hospital for Mr. Semerling. He went outside the Hospital through the ambulance bay and garage towards the air ambulance helicopter pad. He found a phlebotomist. She was taking photographs of the moon. He asked her if she had seen Mr. Semerling. The phlebotomist responded that she had seen him walking past her and talking to himself. She said she was "creeped out" by him and moved away.

[58] Officer Dougherty testified that this provoked an emotional response and that "it heightened my frust- er, not frustrating, my my anxiety, my emotions to find Mr. Semerling…. that he was going to kill himself."

Officer Nicholas's Testimony

[59] Officer Nicholas transported Mr. Semerling to the Hospital on November 8, 2022. At approximately 1:30 a.m., Mr. Semerling was brought to a room where he was seen by hospital staff. His handcuffs were removed, and the officers had no safety concerns. The police brought up the topic of seizing his firearms and his suicidal ideations. Mr. Semerling denied that he wanted to shoot himself in his own home because it was "too messy…I would just walk into the bush."

[60] At 2:42 a.m., the officers were told they could leave and returned to their station.

[61] At 3:10 a.m., Officer Nicholas heard Officer Dougherty, over the police radio, stating that he required assistance while fighting with Mr. Semerling. Officer Legros also heard Officer Dougherty's voice over the radio. The radio transmission was played in court. The audio is poor in quality. However, Officer Legros described Officer Dougherty as "out of breath and panicked." Officer Legros testified that after he listened to that transmission, he was concerned for Officer Dougherty's welfare and was scared for him.

John Semerling's Testimony

[62] Mr. Semerling testified that he recalled entering a small room at the Hospital with two police officers. He was unhandcuffed and left alone. He did not recall speaking to anyone. After a while, he became more confused and stressed. He stood in the corner, anxious, with his back against the wall and uncertain why he was still required to remain in the room. Mr. Semerling decided to leave. He did not speak with anyone and was never told that he could go.

[63] Mr. Semerling exited his room and did not see police in the hallway. He left through the emergency doors and walked towards his residence, approximately two kilometres away.

[64] In cross-examination, it was brought to Mr. Semerling's attention that his medical chart showed that before he left the Hospital, a physician had seen him at 2:18 a.m. and a nurse at 2:55 a.m. He had no recollection of hospital staff telling him to stay in his room.

The Re-Apprehension of Mr. Semerling and the Altercation

Officer Dougherty's Testimony

[65] Officer Dougherty returned to the Hospital parking lot and entered his SUV to look for Mr. Semerling. He acknowledged that he did not advise his dispatch what he was about to do.

[66] Officer Dougherty reached the intersection of Keith Jobbitt Drive and Oliver Road. He turned onto Oliver Road and drove eastward.

[67] Officer Dougherty spotted Mr. Semerling walking east on the north side of Oliver Road, just before the bridge and near the Lakehead University garage area.

[68] Officer Dougherty pulled a U-turn and positioned his vehicle facing west near Mr. Semerling. He did not activate his emergency lights or his body-worn camera. Officer Dougherty did not activate his camera because he assumed he could use a portable radio to inform other officers that he had found Mr. Semerling. However, when Officer Dougherty tried to turn on his portable radio, it did not work, and he forgot to activate his body-worn camera. Officer Dougherty said he forgot as he "had so many things going on."

[69] Officer Dougherty confirmed the difficulty with the portable radios, including having to pop out the battery with two hands when they do not work.

[70] According to Officer Dougherty, he "jumped out" of his vehicle. He described the lighting conditions as dark. He also recollected that the location of the Lakehead University garage was the site of his first sudden death investigation. A young man had left the Hospital, walked to this garage, and hung himself with his hoodie. This haunting memory raised Officer Dougherty's anxiety level.

[71] Officer Dougherty testified that he approached Mr. Semerling near the front passenger side fender, identified himself by his first name, and told him that he must return to the Hospital and that he was being apprehended under the M.H.A. Mr. Semerling said he would not return to the Hospital and wanted to go home.

[72] Officer Dougherty described Mr. Semerling as having a glazed look in his eyes, red-faced and sputtering. He felt that Mr. Semerling was looking east and would flee in that direction.

[73] Since Mr. Semerling was not receptive to the suggestion of returning to the Hospital, according to Officer Dougherty, he tried to "butter him up" to get him back in his vehicle. He told Mr. Semerling to jump in the back of the car and that he would get the help that he needed at the Hospital. However, Mr. Semerling refused and stated again that he was going home.

[74] At this point, Officer Dougherty directed him to turn around to be handcuffed. Mr. Semerling did not respond nor follow Officer Dougherty's directions. Officer Dougherty then directed Mr. Semerling to place his hands on the hood of his vehicle to be handcuffed. Mr. Semerling told Officer Dougherty to "fuck off," and he swatted his hand away in an upward direction and then took off. Officer Dougherty testified that he did not run away but walked slightly faster. When Mr. Semerling got past his vehicle, Officer Dougherty grabbed his right wrist to apply handcuffs, but Mr. Semerling resisted. Officer Dougherty described their physical interaction as a "tug of war."

[75] Officer Dougherty felt he needed to handcuff Mr. Semerling for his protection. He was concerned that Mr. Semerling was a risk to himself. He thought Mr. Semerling might run into traffic or jump off the bridge.

[76] It quickly became apparent to Officer Dougherty that he underestimated Mr. Semerling’s strength as he lost the struggle that lasted approximately 20 to 40 seconds. According to Officer Dougherty, he became concerned for his safety and took Mr. Semerling to the ground with an armbar and tripping technique.

[77] Officer Dougherty brought Mr. Semerling down to the ground. However, he landed on his back, which made handcuffing him more difficult. Officer Dougherty got his radio to work and told his dispatcher. He stated that he needed help as a "male was actively fighting with me."

[78] Officer Dougherty got on top of Mr. Semerling's upper chest area. He placed his legs over his arms to gain control but did not have Mr. Semerling's arms wholly pinned. Mr. Semerling was upset and swearing at Officer Dougherty. He shuffled his body, using his arms, hips, and legs to get out from underneath Officer Dougherty. Officer Dougherty told Mr. Semerling to stop resisting. Mr. Semerling was getting more and more agitated and tried to heave Officer Dougherty off him by thrusting his hips upwards.

[79] Officer Dougherty felt he was losing the "fight" and was concerned for his safety as he was tired and winded.

[80] At this point, Officer Dougherty told him to stop resisting, or he was going to strike him. He felt Mr. Semerling touch his firearm holstered to his right side. He covered his holster with his right hand and struck Mr. Semerling twice with his left fist as he was "flat on his back."

[81] Upon reflection, Officer Dougherty believed Mr. Semerling had unintentionally touched his firearm.

[82] Despite having other use-of-force options, Officer Dougherty testified that the hand strike was his less lethal use-of-force option at the time.

[83] He did not want to use his O.C. spray as Mr. Semerling was too close to him, and he did not want to risk getting cross-contaminated with the O.C. spray.

[84] The expandable baton was not an appropriate use-of-force option as it is to be used on soft tissue or muscles, not the head or ribs.

[85] After he struck Mr. Semerling twice, Mr. Semerling became more agitated and began bucking harder, lifting the Officer off the ground. He wondered if Mr. Semerling felt the two head strikes. Officer Dougherty warned him, again, to stop. Mr. Semerling continued to resist. Officer Dougherty struck him in the face twice with his closed fist.

[86] Mr. Semerling yelled at Officer Dougherty, "Why did you hit me?"

[87] Eventually, Mr. Semerling rolled over on his stomach to be handcuffed. However, Mr. Semerling got up to his hands and knees and attempted to run away, at which time Officer Dougherty hopped on his back, placed both hands around his neck, and told Mr. Semerling to stop, or he would strike him again. Mr. Semerling stopped, and the handcuffs were placed on his wrists.

[88] Officer Dougherty's body-worn camera was activated at this point in the chronology. His body-worn camera depicted the handcuffing. Mr. Semerling was not compliant and was still resisting the handcuffing.

[89] Officer Dougherty had a heated exchange with Mr. Semerling when he was placed in his vehicle. Officer Dougherty admitted that he was upset at Mr. Semerling for "having a physical altercation" with him. He was also troubled for "failing Mr. Semerling, as they did that other male, and I was mad."

[90] Officer Dougherty told his fellow officers he was "100% all right," but that was untrue. His knees were scratched, and he tweaked his back.

[91] He stopped his vehicle briefly on the way to the Hospital to explain what had occurred to his supervisor.

[92] When they returned to the Hospital, Officer Dougherty noted that Mr. Semerling had a red mark on the left side of his face near his eye.

[93] Officer Dougherty did not complete a "use of force report" as he believed that Mr. Semerling did not require any medical attention for his injuries at the Hospital.

[94] Officer Dougherty had the scrapes on his knees cleaned out by a nurse with rubbing alcohol.

[95] Officer Dougherty testified that he had to prepare nine priority reports by the morning's end of the shift.

[96] In his supplementary report prepared about Mr. Semerling's arrest, Officer Dougherty recorded that while they waited in the ambulance bay, Mr. Semerling struck his head off the protective divider and passenger door cage in the vehicle. Officer Dougherty conceded that Mr. Semerling did not do that when he watched the video. Officer Dougherty testified that he made that mistaken observation after viewing Mr. Semerling through the SUV's tinted windows.

[97] Near the end of his direct examination, Officer Dougherty testified that he was justified in the use of force against Mr. Semerling "to get him into restraints and to stop his aggressive interactions with me…" He felt that, at that moment, he had no other choice.

[98] When Officer Dougherty was asked in direct examination if there were anything he would have done differently, he responded that he should have radioed as soon as he entered his vehicle so officers could assist in locating Mr. Semerling. With more officers present, he felt he could have communicated better with Mr. Semerling. He also regretted not activating his body-worn camera.

[99] In cross-examination, the Crown presented Officer Dougherty with an image of the "use of force" model taught at the Ontario Police College. Officer Dougherty agreed that when a person is somewhere between actively resistant and assaultive, the use of hard physical control techniques or intermediate weapons is a justifiable use of force option for a police officer.

[100] In direct examination, Officer Dougherty proclaimed that when he set out to look for and apprehend Mr. Semerling, he had safety concerns as he would towards any individual. Even though his firearms had been seized, Officer Dougherty thought that when Mr. Semerling exited the Hospital on foot, he could have seized a weapon on his way out, such as a surgical tool. However, in his cross-examination, Officer Dougherty agreed that he had no safety concerns when he approached Mr. Semerling. He recognized that he was more physically fit than Mr. Semerling.

[101] Officer Dougherty acknowledged that he did not know that Mr. Semerling suffered from depression and complex PTSD, had a previous traumatic brain injury, had a torn meniscus, or wore hearing aids.

[102] Officer Dougherty admitted that he did not check Mr. Semerling's background at a police terminal or try to call him on his cellphone. He also admitted failing to let his dispatcher know that he was going out to search for Mr. Semerling.

[103] Officer Dougherty was aware of three M.H.A. apprehensions that evening, which drained police human resources. Responding to several emergency calls with so many officers tied up at the Hospital would be difficult.

[104] He denied being frustrated at the Hospital staff for not taking the necessary steps to ensure that Mr. Semerling would not just walk away after they told Officers Bamford and Nicholas to leave. However, Officer Dougherty eventually acknowledged that he was frustrated with the Hospital for not doing its job and keeping a watchful eye on Mr. Semerling.

[105] In cross-examination, Officer Dougherty acknowledged that if he had activated the master light on his vehicle when Mr. Semerling was located, his body-worn camera would have been activated. It would have also blinded Mr. Semerling, and that would have increased officer safety. Furthermore, illuminating his lights would have made his vehicle more accessible to spot for other motorists and officers responding.

[106] Officer Dougherty candidly acknowledged that while he was making the short drive to locate Mr. Semerling, he could have used his vehicle radio to alert his dispatcher where he was going.

[107] After Mr. Semerling pulled away and did not want to be handcuffed, Officer Dougherty testified that he did not have enough time to reach into the vehicle and use the radio to call for assistance, or he would have lost sight of Mr. Semerling if he had run into the nearby woods. Officer Dougherty chose to reset his portable radio and call for backup instead of following Mr. Semerling if he walked away. However, he decided to physically struggle with Mr. Semerling by grabbing his wrist and initiating a tug of war.

[108] Officer Dougherty acknowledged that he could have chosen to disengage from the interaction upon realizing Mr. Semerling’s non-compliance and increased resistance. But he felt Mr. Semerling could have harmed himself by running into traffic or the bush. He thought the safest plan was to keep Mr. Semerling where he was.

[109] In direct examination, Officer Dougherty conceded the grounding was not ideal, as Mr. Semerling was lying on his back, and Officer Dougherty tried to pin his arms. While his arms were neutralized, Mr. Semerling was still attempting to push or buck off Officer Dougherty.

[110] Officer Dougherty testified that when the bucking was more intense, he was scared that he was losing the fight. He feared that if he let Mr. Semerling up onto his feet, he would be involved in a "fistfight," even though during the tug of war, Mr. Semerling did not engage in a fistfight with Officer Dougherty. Officer Dougherty acknowledged that if Mr. Semerling did get up and "square off" with him, he would have other use of force options available.

[111] The Crown suggested to Officer Dougherty that since he claimed that he was panicked and winded and Mr. Semerling had not squared up to him or taken a swing, Officer Dougherty was not entitled to start striking Mr. Semerling in the head. Officer Dougherty denied that was the reason that he struck Mr. Semerling in the head multiple times.

[112] Officer Dougherty conceded that when he delivered the four strikes to Mr. Semerling's face, he could not defend himself by blocking his blows, nor was Mr. Semerling assaulting him.

[113] Officer Dougherty testified that the purpose of the four strikes to Mr. Semerling's head was to gain Mr. Semerling's compliance by inflicting pain. The Officer conceded that they were delivered with force, for both their safety, to apply the handcuffs and get Mr. Semerling back to the Hospital.

[114] After his exchange with Mr. Semerling in the vehicle on his way to the Hospital, Officer Dougherty acknowledged that he knew Mr. Semerling would likely make a complaint. He felt he should have taken more time to talk to his supervisor and asked if he could prepare his supplementary report the next day. He thought that his report and notes were less than complete.

[115] For example, Officer Dougherty did not note in his supplemental report that when he observed Mr. Semerling in the room at the Hospital, he was rocking back and forth and slightly bumping his head off the wall and crying, as he testified.

[116] He also did not note in his report the Phlebotomist's comment that she was "creeped out by him."

[117] He did not note in his report that when he approached Mr. Semerling, he identified himself by his first name and offered him a ride back to the Hospital without being handcuffed.

[118] According to Officer Dougherty's supplemental report, he was able to reset his portable radio with both hands and call for assistance while he had Mr. Semerling's arms pinned. In his testimony, he agreed with the suggestion that he was not concerned about Mr. Semerling being a threat in that position, as he decided to occupy both his hands while trying to reset his portable radio.

[119] Based on his notes and his supplemental report, Officer Dougherty broadcasted to Officer Kampela that he was at "L.U." during his initial struggle, and he confirmed in his testimony that he delivered the four strikes to Mr. Semerling's face before the officers arrived.

[120] Officer Dougherty conceded that in his supplemental report, he never wrote that Mr. Semerling was trying to "buck him off" and moving his feet off the ground. Furthermore, there is no mention in his report that before he delivered the fourth strike to his head, Officer Dougherty informed Mr. Semerling that if he did not comply or continued to resist, he would be struck.

[121] There was no notation in either Officer Dougherty's notes or supplemental report that Mr. Semerling, intentionally or unintentionally, touched Officer Dougherty's firearm. Nor did he write that he feared Mr. Semerling would roll out into traffic or that if he got up off the ground, there would be a fistfight.

[122] When asked about handcuffing someone and the inappropriateness of striking the individual in the head to gain compliance, Officer Dougherty described a training session in the use of force where he participated in an exercise of jumping on and punching down on a punching bag. However, Officer Dougherty clarified that the scenario did not involve handcuffing.

[123] Officer Dougherty stated that he did not complete a use of force report because he felt that he did not have to, given that Mr. Semerling had been treated by a nurse or physician when he returned to the Hospital. He acknowledged that he should have completed a use of force report. He also acknowledged that he should have told his supervisor that he had struck Mr. Semerling in the face four times with a closed fist.

[124] Despite observing a red mark below Mr. Semerling's eye, Officer Dougherty never mentioned the injury in his notes or supplemental report.

John Semerling's Testimony

[125] Mr. Semerling testified that he was walking on the grass along Oliver Road for approximately 10 minutes when Officer Dougherty put on his emergency lights and stopped his SUV.

[126] Mr. Semerling testified that the SUV was parked half on the grass. Officer Dougherty exited the vehicle and told him to stop and either put his hands up or place them on the hood.

[127] Then, as he was about to place his hands on the hood, Officer Dougherty struck him with a closed right fist on his left cheek close to his nose.

[128] Mr. Semerling testified that after being struck, he fell to the ground.

[129] Mr. Semerling believed that he might have been struck twice but did not recall how or what position he was in.

[130] Officer Dougherty mounted Mr. Semerling and sat on his head. He was flipped over, and the handcuffs were tightly placed on him from behind.

[131] Mr. Semerling asserted that he did not resist the handcuffing. He recalled other officers arriving and helping him to his feet. He was placed in the rear of Officer Dougherty's SUV.

[132] Mr. Semerling was certain that Officer Dougherty's roof lights on his SUV were activated when Officer Dougherty stopped him. He was also sure Officer Dougherty parked his SUV facing east on Oliver Road. However, in cross-examination, his testimony was contradicted by exhibit #10, a still photograph of the scene on Oliver Road taken from Officer Dougherty's body-worn camera, which showed, at 3:09 a.m., his SUV facing westbound with no activated emergency lights.

[133] Mr. Semerling agreed in cross-examination that he was incorrect in his statement to the SIU, that he had fallen on his back, and that Officer Dougherty had sat on his head.

[134] Mr. Semerling disagreed that Officer Dougherty offered not to handcuff him if he entered his SUV.

[135] Mr. Semerling disagreed that he resisted the arrest by moving away and struggling with Officer Dougherty and was put in an armbar and taken to the ground.

[136] Mr. Semerling disagreed that as he tried to push or flip Officer Dougherty off him, he warned Mr. Semerling to stop resisting or he was going to be struck. He further disagreed with counsel's suggestion that after being hit twice, Officer Dougherty cautioned him again and was struck two more times because he continued to resist the arrest.

After the Altercation

Officer Kampela's Testimony

[137] Officer Kampela was at the Hospital with his partner, Officer Podlewski, with another individual arrested under the M.H.A. at 3:10 a.m. on November 8, 2022. He heard "impact sound and scuffling sounds" over his radio. Officer Kampela felt that Officer Dougherty sounded panicky and alarmed. They both left the Hospital and drove to Oliver Road.

[138] They arrived and found Mr. Semerling on the ground. Officer Dougherty was standing over Mr. Semerling, on the side of the road, holding him down. All three officers brought Mr. Semerling to his feet. He did not resist and was compliant. Officer Kampela picked up Mr. Semerling's hearing aids and gave them to Officer Bamford. While Mr. Semerling was being escorted and placed in the rear of Officer Dougherty's SUV, Officer Kampela's body-worn camera captured Officer Dougherty stating to Mr. Semerling, "My name is Ryan, the next time I fucking tell you to do something, you do it." Mr. Semerling responded, "I don't give a rat ass about what you say, you prick; you punched me in the head for fucking nothing." After Mr. Semerling was put in the car, Officer Dougherty told Officer Kampela that his radio did not work.

Officer Nicholas's Testimony

[139] Officers Nicholas and Bamford arrived at Oliver Road, where Officer Dougherty had apprehended Mr. Semerling and placed him in the rear of his SUV. Officer Nicholas's body-worn camera was activated. At 3:11 a.m., it captured Officer Dougherty stating to Officer Nicholas, his road Sergeant, and other officers, the following:

"I came fucking come racing out here, and I find him, put your hands on my car right now, and he said "fuck you and took off…I grabbed him and he fought me pretty good…I saw the Phlebotomist, and I asked have you seen a guy? She said he took off…he is a big guy."

[140] Officer Legros attended Oliver Road. His body-worn camera was activated, and it captured the same conversation.

[141] Mr. Semerling was taken back to the Hospital and remained in the rear of Officer Dougherty's SUV while it was parked in the ambulance bay. Eventually, restraints were brought out, and Mr. Semerling was placed on a hospital gurney and restrained. Several officers, including Officer Dougherty, were present.

[142] Officer Nicholas testified that when he saw Mr. Semerling at the Hospital, he observed "minor swelling."

Officer Dougherty's rear passenger seat video camera recording

[143] The interaction between Mr. Semerling and Officer Dougherty en route to the Hospital was captured by the rear passenger in-car camera in Officer Dougherty's SUV. Mr. Semerling was very angry and agitated. He immediately questioned why he was "punched in the head for nothing." Officer Dougherty told him that he did not listen. Mr. Semerling was injured as his face was already swollen. He was breathing heavily and spitting in the back seat.

[144] Near the four-minute mark of the video, again, Mr. Semerling said that Officer Dougherty punched him in the head because he did not listen to his commands. He yelled at Officer Dougherty about why he punched him in the head twice, and Officer Dougherty corrected him by saying that he punched him four times and told him to learn how to count.

[145] Mr. Semerling swore at Officer Dougherty and called him names. After Officer Dougherty exited his SUV to talk to his Sergeant, Mr. Semerling was heard shouting, "You fucking tell the truth and don't lie, you prick… don't you lie. Lying is bad, Ryan."

[146] Mr. Semerling stated, among other things, that "I was not resisting you, and you punched me." "I don't know how you got your badge." "Look at what you did to my eye." "I just want to go home."

[147] Mr. Semerling did not have any recollection of this conversation.

[148] After Mr. Semerling was taken into the Hospital, he was asked how he felt. He indicated that he felt fine but was sore from the bruising on his face. His elbow and knees were aching from being grounded.

[149] Mr. Semerling recalled that the restraints were removed approximately an hour later. His wife and son picked him up later that morning. He slept for nearly two days. When he got up, he was sore and could not write or add during a dice game. He reattended the Hospital, had a C.T. scan, and was diagnosed with a broken nose and a concussion.

Faulty portable radios, lack of police resources, body-worn cameras

[150] The City of Thunder Bay, with an approximate population of 115,000, is divided into six patrol zones. On any evening, a platoon will consist of 10 to 14 patrol officers and two sergeants. Officer Legros testified that often, the Thunder Bay Police Service does not have enough officers to cover all the calls. It is a vast area to police.

[151] Another issue that came to light in this trial is that portable handheld radios often do not hold a full battery charge during a twelve-hour shift. The problem is worse during the cold weather. Sometimes, when the radio is powered off and an officer wants to power up the radio, the radio may not turn on. An officer in that situation must remove the battery and reinsert it to get the radio to turn on. Officer Legros testified that it had happened to him on numerous occasions.

[152] Officers Legros and Dougherty testified that body-worn cameras are activated in the following situations: when a firearm or conductive energy weapon is unholstered, when gunshots occur, when police cruiser emergency lights are activated, and when an officer pushes a button on his chest.

[153] In-car cameras are activated when a police cruiser exceeds a specific speed or sudden acceleration of a police cruiser, the emergency lights turn on, and the rear door of the cruiser is opened.

The Law

[154] No issue was taken that section 25 of the Code is available to the Defence.

[155] In a criminal trial, it is essential to remember that the Crown always bears the burden of proving its case beyond a reasonable doubt.

[156] Where, 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 an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.

[157] In credibility assessments, it is crucial to underscore that criminal trials are not about pitting one's credibility against another's. Determining which version of events is more plausible is not a competition but a fair and just process.

[158] The accused person holds a significant position in the trial process. They are not compelled to testify or present any evidence, nor are they obliged to provide explanations.

[159] However, given that Officer Dougherty did testify in his 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 Officer Dougherty 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 Officer Dougherty 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 accept, I am satisfied beyond a reasonable doubt of his guilt.

[160] It 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.

[161] In this case, the Defence relies on a lawful justification under section 25(1) of the Code, which provides as follows:

25(1) Everyone 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.

[162] The concepts of proportionality, necessity, and reasonableness constrain the protection provided by this section. As indicated by Justice LeBel in the case of R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 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.

[163] The officer must honestly believe that the force used was necessary and reasonable in the circumstances. That belief must be objectively reasonable: Nasogaluak at para. 34.

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

[165] However, 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 usually 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 para. 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. No. 1235 at paras. 98-99.

[166] As with all retrospective analyses of police conduct, it must be realized that the situations encountered are often rapidly evolving, fluid, and dynamic, requiring quick discretion and judgment. The reviewer must give some degree of latitude to the actions (as mentioned above); it would not be fair to expect perfection: ref. Cromwell J. in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 at para. 24.

[167] There is no requirement that the police use only the most minor force, which might successfully achieve their objective. To so require could result in unnecessary danger to themselves or others: ref. Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512, page 3.

Assault Causing Bodily Harm

[168] To find Officer Dougherty guilty of assault causing bodily harm, the Crown must prove each of the following essential elements beyond a reasonable doubt:

i. Officer Dougherty intentionally applied force to Mr. Semerling; ii. Mr. Semerling did not consent to the force applied; iii. Officer Dougherty knew Mr. Semerling did not consent to the force that was intentionally applied, and iv. The force Officer Dougherty applied caused Mr. Semerling bodily harm.

[169] Bodily harm is any hurt or injury that interferes with the person's health or comfort. It must be more than brief, fleeting, or minor. It must result from the force the accused applied and contribute significantly to the bodily harm suffered.

[170] The Crown does not have to prove that Officer Dougherty meant to cause bodily harm but does have to prove that a reasonable person, in the circumstances, would realize that the force applied would put Mr. Semerling at the risk of suffering some bodily harm, although not necessarily serious physical harm, or the precise kind of harm that Mr. Semerling suffered.

[171] The real issue is the appropriateness of Officer Dougherty's decision to strike Mr. Semerling four times and his execution of those strikes. Were they no more than necessary to subdue Mr. Semerling so he could be handcuffed during this arrest? Were they reasonable in the circumstances?

Analysis

[172] The positions of the parties are straightforward to articulate.

[173] The Defence submitted that the Crown has not demonstrated in this case that Officer Dougherty's use of force was unreasonable and disproportionate. Although the complainant in this case was a credible witness, he was not a reliable witness due to his memory being affected by the strikes to his head and intoxication.

[174] Moreover, the Defence asserted Officer Dougherty acted reasonably because he feared for his safety when lawfully attempting to re-apprehend the complainant under the Mental Health Act.

[175] The Defence argued that there was nothing objectively wrong when Officer Dougherty tried to arrest Mr. Semerling after he had escaped lawful custody, refused to be detained, moved away, and the Officer grabbed Mr. Semerling. As the tug of war commenced, Officer Dougherty feared losing the struggle; therefore, his safety was in jeopardy. He was entitled to use the amount of force to protect himself and complete the arrest.

[176] The Crown argued that the four strikes to Mr. Semerling's head in the circumstances were not reasonable, necessary, or appropriate.

[177] The Crown submitted that this case is entirely about Officer Dougherty striking Mr. Semerling four times in the head to gain compliance in circumstances that Officer Dougherty wholly created.

[178] Officer Dougherty had opportunities to call for assistance before engaging Mr. Semerling physically. It is essential to recognize that Officer Dougherty struck Mr. Semerling after he called for backup and knew that other officers would be responding.

[179] The Crown pointed out that police training in using force requires an officer to create distance between the officer and the subject to allow an officer to assess and plan. That was not done in these circumstances.

[180] The Crown highlighted that Officer Dougherty's testimony did not match or was consistent with his notes and the supplemental occurrence report he completed near the end of his shift. For example, the notes and the report did not include Officer Dougherty's testimony regarding his efforts to persuade Mr. Semerling to enter his police SUV.

[181] Officer Dougherty described in his notes that while Mr. Semerling was seated in the rear of the police SUV parked in the ambulance bay at the Hospital, Mr. Semerling started to bang his head off the rear passenger window. However, the rear camera video belied that fact. Officer Dougherty admitted that should not have been written in his notes. The Crown argued that the reason he inserted that fact in his notes was to explain Mr. Semerling's facial injuries and avoid the need to complete a use of force report.

[182] The Crown submitted that when Officer Dougherty left the Hospital to apprehend Mr. Semerling, he was already frustrated and angry. He intentionally avoided using those words in his evidence to avoid the inference that that was how he engaged with Mr. Semerling.

[183] The Crown's position is that Officer Dougherty's decision to strike Mr. Semerling several times in the head, who was defenceless, is not covered by section 25 of the Code. Moreover, the Crown submitted that Officer Dougherty abandoned all his use of force training, and he disregarded police policy on dealing with an individual with a mental health issue.

[184] I now turn to assessing the evidence and whether the Crown has proven the charge beyond a reasonable doubt.

[185] There is no dispute that Officer Dougherty was acting in the execution of his duty as a police officer when he attempted to arrest or re-apprehend Mr. Semerling and that he had the objective and subjective grounds to do so. The issue is whether striking Mr. Semerling in the face four times with a closed fist was proportionate, lawful, and necessary.

[186] Officer Dougherty subjectively believed that the four closed fist strikes to Mr. Semerling's face were proportionate and reasonable in the circumstances. Unfortunately, no objective or independent evidence from Officer Dougherty's body-worn camera captured the verbal and physical interaction with Mr. Semerling for the court to rely on. However, as a fact, and I am encouraged by the Crown, Officer Dougherty's failure to activate his body-worn camera was unintentional and not for any sinister motive.

[187] The objective assessment of Officer Dougherty's actions is based primarily on his account.

[188] Turning to Officer Dougherty's evidence. I did not find Officer Dougherty an entirely credible witness. There were several inconsistencies between his testimony, his notes, and the supplemental report, which parts of it he adopted in cross-examination.

[189] For example, Officer Dougherty failed to record in his supplemental report and notes the following:

• His observation of Mr. Semerling in a room at the Hospital was that he was rocking back and forth, slightly bumping his head off the wall and crying.
• The Phlebotomist commented that she was "creeped out" by Mr. Semerling.
• He identified himself immediately as "Ryan" and invited Mr. Semerling to get unhandcuffed into the rear of his vehicle. On the contrary, I observed Officer Kampela's body-worn camera video, Officer Dougherty angrily telling Mr. Semerling his first name is "Ryan" after Mr. Semerling had been struck and was being walked to his vehicle. Officer Dougherty yelled at Mr. Semerling, "My name is Ryan, and the next time I fucking tell you to do something, you do it." It is reasonable to conclude that was when Officer Dougherty told him about his name for the first time.
• Mr. Semerling tried to "buck him off" and lift his feet off the ground while he tried to handcuff him.
• He warned Mr. Semerling that he would strike him in the head.
• Mr. Semerling touched his firearm during the struggle.
• He feared that Mr. Semerling would roll out into traffic during the struggle.
• If Mr. Semerling got up after he was grounded, Officer Dougherty would be in a fistfight.
• Officer Dougherty added in his notes that Mr. Semerling had banged his head off the rear passenger divider and the rear window. Mr. Semerling thrashed around in the rear seat but was never observed on the video camera striking his head. The Crown suggested that he put that observation in his notes to explain the injury to Mr. Semerling’s face. I am not prepared to make that finding; he intended to put this in his notes to cover up the real cause of Mr. Semerling's injury. Officer Dougherty was looking through tinted windows when he made the observation. I am prepared to give Officer Dougherty the benefit of the doubt that it was simply an error in perception and observation.

[190] I found that Officer Dougherty was frustrated and irritated because the police had brought Mr. Semerling to the Hospital, but he was allowed to leave. However, I understand that Officer Dougherty was not angry with Mr. Semerling. He acted in good faith to apprehend a person who was supposed to be at the Hospital for his well-being under the M.H.A.

[191] His reluctance to adopt the word "frustrated" to describe his emotional state when he left the Hospital was not credible. However, he eventually conceded that he was upset and frustrated during the cross-examination. His reluctance to admit to this emotion was an effort to distance himself from the inference that when he engaged with Mr. Semerling, that was exactly how he presented and communicated with Mr. Semerling. Officer Dougherty wanted to push the narrative that he was a calm and collected communicator with Mr. Semerling, and both his avoidance and reluctance to admit to his evident vexation in the circumstances contradicted that picture.

[192] Officer Dougherty exaggerated any urgency or officer safety that Mr. Semerling presented when he physically engaged with Mr. Semerling.

[193] I now turn to the Crown’s case.

[194] I do not doubt the sincerity and honesty of Mr. Semerling's evidence. However, I have concerns about the reliability of his evidence. I have minimal hesitation in concluding that Mr. Semerling's recollection of the night was affected by the injury that he sustained and his level of intoxication. I find that he is not a reliable witness.

[195] Mr. Semerling believed that he was suddenly and without provocation struck in his face once, maybe twice, from his right side by Officer Dougherty. If I accepted that account, which I do not, I would find, on that evidence alone, Officer Dougherty guilty of assault causing bodily harm. However, given Mr. Semerling's memory gaps, it would be unsafe to find Officer Dougherty guilty based on Mr. Semerling's evidence alone.

[196] However, this case is not about Mr. Semerling's account of the physical interaction with Officer Dougherty. Still, instead, the Crown established a prima facie case in which Officer Dougherty was placed in a position to justify his use of force under section 25 of the Code.

[197] Despite the challenges with Mr. Semerling's evidence, at the end of the day, what happened on November 8, 2022, is not all that contentious. Although I am concerned about Officer Dougherty's credibility, I will decide the case nonetheless, mainly on his account of the events. After all, it is not about the reason for the arrest but the fact that Officer Dougherty struck Mr. Semerling in the face four times, which is at the heart of the case.

[198] Officer Dougherty did not commit an assault when he grabbed Mr. Semerling's arms to perfect the arrest, nor when he attempted to ground Mr. Semerling. The question is whether the four strikes to his face were excessive. I am not to assess what other options were available to Officer Dougherty and determine why they should have been deployed. I have cautioned myself not to play "Monday morning quarterback" and dissect a police officer's actions in a dynamic situation. A police officer should not have to measure the use of force to a nicety and not be held to a standard of perfection. Officer Dougherty, like all police officers, is entitled to make errors. Errors often do not attract criminal liability.

[199] In R. v. Power, [2016] S.J. No. 99 at para. 35, the Saskatchewan Court of Appeal stated the following:

Based on the preceding, a determination of whether force is reasonable in all the circumstances involves a consideration of three factors. First, a court must focus on an accused's subjective perception of the degree of violence of the assault or threatened assault against him or her. Second, a court must assess whether the accused's belief is reasonable based on the situation as he or she perceives it. Third, the accused's response of force must be no more than necessary in the circumstances. This needs to be assessed using an objective test only, i.e., was the force reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics.

[200] It was noted by the Court of Appeal in R. v. Walcott, [2008] O.J. No. 1050 at paras. 22 to 24, as set out and relied upon in the judgment of Justice A.J. O'Marra in R. v. Eyo, [2012] O.J. No. 2791 at para. 7:

In assessing the reasonableness or necessity of the force used ... a court should take into account all of the circumstances, including whether:

(i) The subject was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrest procedure; (ii) The relative sizes and weights of the Officer and the suspect; (iii) The Officer was at risk of harm; (iv) The police knew the suspect had a history which might represent a threat to them; or (v) The police understood that weapons might be on the premises.

[201] I find that Mr. Semerling was not resisting the arrest. However, more importantly, I accept that Officer Dougherty may have mistakenly believed that Mr. Semerling was offering some verbal and slight physical resistance. I accept that Mr. Semerling did not want to be handcuffed and returned to the Hospital. However, any resistance was mild. It was not the kind of resistance that would cause any realistic concerns for Officer Dougherty's safety.

[202] I find that Mr. Semerling most likely told Officer Dougherty to "fuck off", stated that he was going home, and made an ineffective attempt to swat his hand away. The highest that the evidence could be said is, at the most, Mr. Semerling was argumentative but not aggressive.

[203] This experience is common for most police officers, including Officer Dougherty, and I do not doubt it was irritating. Still, it did not raise any realistic safety concerns in this case. Officer Dougherty did not try to create distance and time when confronting Mr. Semerling on Oliver Road. He had an opportunity to call for assistance on his vehicle radio when he located Mr. Semerling before he exited his vehicle. Officer Dougherty had ample time to step back and evaluate the situation. However, when he goes "hands-on" with Mr. Semerling, he underestimates Mr. Semerling, at his peril, and loses the struggle.

[204] I cannot infer from Officer Dougherty's tone during the radio communication that it was one of fright and panic. It sounded like he was in a struggle and short of breath. Officer Dougherty admitted that Mr. Semerling was not assaultive when he delivered four closed-fisted strikes to his face. Mr. Semerling was not armed with a weapon. I find that Officer Dougherty was frustrated and angry that Mr. Semerling was not complying with his demands.

[205] This was not a fight. Although Mr. Semerling weighed considerably more than Officer Dougherty, from observing both men in court and on video, I can say that Officer Dougherty is much fitter than Mr. Semerling. Officer Dougherty was on top of Mr. Semerling, with most of his body weight and strength to a large extent, pinning Mr. Semerling's arms underneath his knees. Mr. Semerling's arms and hands were not a threat. Officer Dougherty exercised enough control over Mr. Semerling by neutralizing his arms to such a degree that Officer Dougherty was able to reset his portable radio and call for assistance as he struggled with Mr. Semerling.

[206] Officer Dougherty delivered the four strikes after knowing police assistance would come after his radio communication.

[207] I am satisfied beyond a reasonable doubt, on the totality of the evidence, that there was neither a subjective nor an objective basis for concern for safety in the circumstances that Officer Dougherty created and found himself in. There was no urgency to make the arrest. As his training has taught him, Officer Dougherty was expected to plan, assess, and act. He did not. Officer Dougherty had other options available when determining how to perfect the arrest. Officer Dougherty abandoned his training. Officer Dougherty failed to adhere to his policy on activating a body-worn camera. He failed to exercise patience in dealing with an individual suffering from mental health issues, contrary to the policy.

[208] There was nothing in Mr. Semerling's actions to suggest that he wanted to fight or assault Officer Dougherty before Officer Dougherty grounded him. Even if I accepted, and I do not, Officer Dougherty's subjective belief that if he had let Mr. Semerling, unarmed, get up before striking him, the struggle would have morphed into a brawl, Officer Dougherty had the use of force options on his belt readily available and at his disposal, including pepper spray and an expandable baton. Furthermore, other officers were on the way. It turned out that other officers were on the scene within a minute of Officer Dougherty's radio transmission.

[209] I find that it was unreasonable that after Officer Dougherty apprehended Mr. Semerling, who was suicidal, he put him on his back, pinned his arms under his knees on the pavement, and thereby rendered him defenceless and struck him four times in the face for not heeding his commands. One blow, let alone four strikes, would not be reasonable in those circumstances. The amount of force used was disproportionate to Mr. Semerling's actions.

[210] I find beyond a reasonable doubt that Officer Dougherty used more force to effect the arrest of Mr. Semerling than was reasonable, necessary, and proportionate to the circumstances. I do not do so based on hindsight or second-guessing. Instead, I do not doubt that when Officer Dougherty struck Mr. Semerling four times, he did so out of frustration and annoyance and not out of any genuine concern that striking him was necessary to effect an arrest and to secure his safety.

Conclusion

[211] Though he was entitled to arrest Mr. Semerling and handcuff him, there was no need to strike Mr. Semerling four times while on the ground in these circumstances, and it is on that basis that I find that Officer Dougherty used excessive force and is guilty of the offence of assault causing bodily harm.

Released: September 24, 2024 Signed: Justice P.T. O’Marra