COURT FILE NO.: CR/14/0000049/30000 DATE: 20160804
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - AND - CHRISTIAN DOBBS
Counsel: Ms. Flanagan and Ms. Rose, for the Crown Mr. Brauti and Ms. Salama, for the Accused
Heard: June 20-23, 2016
B.L. Croll J.
Reasons for Judgment
[Delivered Orally: July 20, 2016]
Introduction
[1] Christian Dobbs is charged with assault causing bodily harm. He is a police officer with the Toronto Police Force. The complainant is Raymond Costain. It is alleged that the assault occurred when Officer Dobbs arrested Mr. Costain for various driving and other offences in the early morning hours of April 12, 2010.
[2] Prior to closing submissions, the Crown properly conceded that the evidence did not make out the offence of assault causing bodily harm. It is the charge of assault simpliciter upon which the Crown is proceeding.
[3] There is no issue that the arrest of Mr. Costain was legal; the issue to be determined is whether the force used by Officer Dobbs during the arrest was excessive.
[4] Parts of the altercation between Officer Dobbs and Mr. Costain were captured on videos taken by the in-car cameras of five different police cruisers. The Crown’s case relies on these videos and the evidence of Mr. Costain.
Evidence of Mr. Costain
[5] It was the evidence of Mr. Costain that on the evening of April 11, 2010, he had worked at a culinary event put on by Humber College at the Elmbank Community Center in Rexdale. According to Mr. Costain, after the event, he went back to Humber College with some of the chefs to unload and wash the equipment. He stated that he had one or two drinks at Humber, and then some more drinks at a restaurant, and that his total consumption for the evening was six beers. He described himself as being a little buzzed, but not too intoxicated as he headed towards his girlfriend’s home in the area of the Esplanade and Jarvis Street in downtown Toronto. According to Mr. Costain, as he was driving on Highway 427, his car was hit from behind. He stated that the collision caused his car to spin around and hit the guardrail, and that the impact triggered the airbags. Mr. Costain was unable to provide any information about the car that hit his car, and the other driver did not remain at the scene.
[6] There was extensive damage to Mr. Costain’s car. Photographs filed as exhibits show, among other things, that the front grill of the car was missing; the top of the hood was collapsed; the windshield was smashed on the passenger side; the left rear headlight was hanging; the rear was scraped; the driver’s side front panel was damaged; both airbags had deployed; the wheel on the passenger side was blown out, leaving just the rim; and the door handles, side mirror and top of the gas cap on the passenger’s side had all been ripped off. Mr. Costain testified that after the accident, he called his mother, his girlfriend and a fellow chef, but that he did not reach anyone personally. According to Mr. Costain, he did not call 911 because the battery on his cell phone died. Nonetheless, despite the damage, Mr. Costain turned his car around and continued driving.
[7] Mr. Costain described himself as scared, confused and panicked after the accident. Although he did not recall getting onto Highway 401, he stated that he exited at Yonge Street, and continued driving south on Yonge. According to Mr. Costain, when he was at the intersection of Yonge and Gerrard, a person knocked on the passenger side window. He stated that he ignored the knocking and thought it could be a panhandler. It was, in fact, a uniformed police officer, Officer Roberts. According to Mr. Costain, he did not hear what the officer was saying because the music in his car was playing loudly.
[8] Mr. Costain described his route that continued south on Yonge, where he then made a left turn on Queen Street, and then a right turn on Toronto Street, where he parked his car and put money in the meter. It was his evidence that he had seen the police behind him before he turned east on Queen, and was scared. He acknowledged that at that time, he was trying to evade the police. He stated that after he parked the car, he walked down to a taxi stand near the entrance to the King Edward Hotel on King Street East. He stated that his intent was to hail a taxi to take him to his girlfriend’s, after which they would go together to St. Michael’s Hospital. Mr. Costain had apparently been coughing and had an itchy feeling in his throat since the airbags exploded, and wanted to be checked.
[9] However, according to Mr. Costain, as the taxi was approaching, a police car drove in front of him, and two officers got out. By his own account, Mr. Costain knew then that “the jig was up”. Officer Dobbs approached him first and told him to get down on the ground. Mr. Costain did not readily or voluntarily go to the ground; he stated that he wanted to explain things to the officers. It was Mr. Costain’s evidence that Officer Dobbs and his partner Officer Nyznik were pushing and pulling him down to the ground. Slices of this struggle can be seen on the in-car video of the Dobbs/Nyznik cruiser #5142. Approximately 16-18 seconds after the time the cruiser stopped, Officers Dobbs and Nyznik and Mr. Costain were on the ground. According to Mr. Costain, after he fell face down to the ground, the officers went through his pockets, took out his hair tie and went through his hair. It was his evidence that after this search he was then handcuffed. Mr. Costain stated that he tried to explain to the officers what had occurred, but that he was then hit two or three times on the back of the head while on the ground, already cuffed. The strikes can be seen on the video, although it cannot be seen where they landed. Mr. Costain stated he saw lights, and then woke up, feeling groggy and hot, and saw that an ambulance had arrived. He did not recall the 10-12 additional strikes shown on the video that were inflicted by Officer Dobbs before the EMS arrived. It was Mr. Costain’s evidence that he did not resist going down, and that he never hit either of the officers.
[10] Mr. Costain suffered a bloody nose, an abrasion on his right forehead, blackened left and right eyes, and an abrasion on his right elbow. It was his evidence that these injuries were caused by his takedown to the ground, and before any of the strikes by Officer Dobbs.
[11] There are a number of troubling inconsistencies and contradictions in Mr. Costain’s evidence:
i. The notes of Officers Dobbs from that evening indicate that Mr. Costain told him that he had been drinking at a bar on Yonge Street; however, at trial Mr. Costain denied being at a bar on Yonge Street. However, the type and quantity of beer consumed—six Stella—noted in Officer Dobb’s notes, accord with Mr. Costain’s evidence, as does the information that Mr. Costain was en route to his girlfriend’s home. It belies common sense to accept that Officer Dobbs’ notes would be correct on only two of the three particulars. On the booking video, Mr. Costain reports to have had seven beers, whereas at the hospital after his arrest, he reported that he did not have any alcohol that night. At his own trial in the Ontario Court of Justice, Mr. Costain’s evidence was that he had consumed six beers at Humber College and nothing at a restaurant. At the preliminary inquiry there was no evidence that he had been drinking while at Humber College; rather his evidence was that six Stella were consumed while at a restaurant near Highway 27 and Finch Avenue. Although Mr. Costain acknowledged at the preliminary inquiry that he had been at a bar on Yonge Street, he testified that he had not been drinking there; rather, he stated that he had stopped there to use the phone, but that his request was refused. As indicated, his evidence at this trial was that the six beer were consumed at two places—Humber College and the restaurant. However, he was unable to name the restaurant or its location, he did not know the name of one of his drinking partners, and advised that the other person with whom he had been drinking is now deceased.
ii. There is also problematic obfuscation in Mr. Costain’s evidence about where the accident occurred. At the preliminary inquiry, Mr. Costain testified that the accident occurred on Highway 401 near the Yonge Street exit. However, at his own trial and in this trial, Mr. Costain stated that the accident occurred on Highway 427. These locations are some 18 kilometers apart. In cross-examination at this trial, Mr. Costain was unable to recall the location where his car had been hit. He was, as well, unable to provide any information about the car that hit him, and there were apparently no other witnesses. It is clear that there was extensive damage all over Mr. Costain’s car. Given the obvious seriousness of the accident, it is highly suspect that Mr. Costain was unable to remember where it had occurred. In any event, the significant damage on all sides of his car, and at various heights of the car, is difficult to reconcile with Mr. Costain’s version of a single accident in which he hit a guardrail, wherever it occurred.
iii. Mr. Costain also indicated that he would have been happy to see a police officer after the accident as he had been the victim of a hit-and-run. As such, it would have been reasonable for him to call 911, but by his own account, 911 was the fourth call he attempted, and by then, his cell phone battery had died. More significantly, Mr. Costain’s evidence that he would have accepted help from the police, cannot be squared with his evidence that he was trying to evade the police when he was driving in a winding and speeding manner through the streets of downtown Toronto.
iv. As stated, Mr. Costain testified that when down on the ground, the officers searched his pockets and ruffled through his hair before he was handcuffed. This evidence does not accord with the police evidence or the video evidence, which I will review shortly. However, it also flies in the face of both common sense and police procedure. Mr Costain weighed 305 pounds in April 2010, and was 6’3”. Mr. Costain acknowledged that the officers were having difficulty getting him to the ground, at least in part due to his size. At the preliminary inquiry, Mr. Costain apparently was described by one of the officers as being like an “oak tree.” At the time of the arrest, Officers Dobbs believed that Mr. Costain had just tried to run down an officer, and he had been engaged in a pursuit. Handcuffing in these circumstances would have been a clear priority, and I do not accept Mr. Costain’s evidence that a search occurred before he was cuffed.
v. Mr. Costain also testified that he lost consciousness for many of the blows that were inflicted on him. However, this position is contradicted by the medical evidence which was admitted on consent. This evidence reveals that Mr. Costain self-reported to both the ambulance attendant and the medical staff at St. Michael’s Hospital that he had no dizziness and did not lose consciousness. Further, in the medical evidence there is no indication of any injuries on the back of Mr. Costain’s head, where he says that the initial blows struck.
Defence Evidence
[12] Officer Dobbs testified in his own defence. Before Officer Dobbs provided his account of the evening of Mr. Costain’s arrest, he described the Use of Force training he has received as a police officer and reviewed the Ontario Use of Force Model (2004) that was in use in 2010 and continues to be in use today.
[13] On April 12, 2010, Officer Dobbs and his partner Officer Nyznik were in the area of St. Michael’s Hospital when they received information over the police radio that was triggered by Officer Roberts’ interaction with Mr. Costain. Over a series of radio broadcasts, they learned that a highly damaged car, with air bags deployed, was travelling southbound from Yonge and Gerrard at high speed, and that the driver had almost knocked down a police officer. Partial licence plate information was conveyed, as was a direction to be cautious, “because the driver was not afraid to take a run at cops”. Information that the driver was to be arrested for a criminal offence because he had tried to run over a police officer was also broadcast. A description of the driver, including information that he was a male black, with long dreads, a goatee, wearing a grey t-shirt, 5’10”-5’11”, was also conveyed. There is no issue that the driver was Mr. Costain.
[14] Officers Dobbs and Nyznik drove to the intersection of Yonge and Shuter Streets, with the cruiser’s lights and siren on. At the intersection, they saw headlights from a car coming southbound on Yonge Street at very high speeds. Officer Dobbs estimated that the car was traveling at between 80-100 kilometers. As the car passed the officers, they observed that it was a dark colour and had been damaged. Officers Dobbs and Nyznik made a U-turn to follow the car, and became the second police car in pursuit of the speeding car.
[15] As Officers Dobbs and Nyznik were in pursuit, they received another radio message that advised that the chase should be terminated because of public safety.
[16] According to Officer Dobbs, as he and Officer Nyznik were southbound on Victoria Street, they saw the man matching the description they had received, except for the height indicators, in front of the King Edward Hotel taxi stand, about to hail a cab.
[17] The in-car video from the Dobbs/Nyznik cruiser shows that their cruiser stopped in front of the taxi stand and both officers left the car. It was Officer Dobbs’ evidence that he went beside Mr. Costain and as he tried to grab a wrist to place Mr. Costain under arrest, Mr. Costain raised his left arm, cocked his elbow, and brought his arm down with force on Officer Dobbs’ face. This exchange is not visible on the video, and Mr. Costain denied at trial that he made contact in this way. According to Officer Dobbs, Mr. Costain did not readily go to the ground as commanded, and a struggle ensued at the side of the cruiser, with Officer Dobbs on Mr. Costain’s left side, and Officer Nyznik on his right. Consistent with the evidence of Mr. Costain, it was Officer Dobbs’ evidence that after some 16-18 seconds of struggle, with Officer Dobbs pushing and Officer Nyznik pulling, each of the officers and Mr. Costain went down to the ground.
[18] Officer Dobbs testified that Mr. Costain hit the ground hard, and that he saw a pool of blood immediately. It is apparent from the video that Officer Dobbs initially struck Mr. Costain two times once he was on the ground. This was necessary, according to Officer Dobbs, in order to gain control of the situation, and consistent with the Use of Force training that he had received as a police officer. In particular, Officer Dobbs stated that in accordance with the Ontario Use of Force Model (2004), he applied hard physical control because Mr. Costain was assaultive in his resistance.
[19] According to Officer Dobbs, he was straddling Mr. Costain as Mr. Costain was on the ground. Officer Dobbs testified that he momentarily thought the struggle was over, and described the situation as at a standstill. Officer Dobbs stated that he went to reach for his handcuffs, but then Mr. Costain continued to pull his arms away in an effort to get them under his chest. He described holding Mr. Costain’s left wrist to the ground and feeling the tension and continued resistance that prevented him from bringing Mr. Costain’s arm to his back to cuff him. Again, Officer Dobbs testified that he applied his Use of Force training to continually assess the situation. It was his evidence that he was focussed on Mr. Costain’s left arm and was concerned that if Mr. Costain’s arms were allowed to go under his body, Mr. Costain could push himself up, given his power and strength, or possibly reach for a weapon. During this continuing struggle, Officer Dobbs struck Mr. Costain some ten times in a row, followed by a short pause before he delivered two more blows. It was Officer Dobbs’ evidence that he used an elbow strike, that is, a strike with the beefy part of his forearm. He applied the strikes to Mr. Costain’s left shoulder blade area, as that was the part of Mr. Costain’s body that was causing the harm. This exercise is apparently part of the “pain for compliance” procedure that Officer Dobbs had been taught, and he considered that pain to the shoulder would allow him to gain control of Mr Costain’s arm and cuff him. Officer Dobbs stated that throughout the strikes, he was communicating with Mr. Costain, telling him that he was under arrest and to stop resisting.
[20] Officer Dobbs testified that ultimately, given the strength of his resistance, Mr. Costain was cuffed with two sets of cuffs. Although he was not certain, he thought that his cuffs and those of Officer Nyznik were both used.
[21] Numerous other cruisers and officers appeared on the scene in short order. The first of these other cruisers was car 5152, in which Officer Omar was the driver and Officer Holt the passenger. The video recordings show that Officer Omar approached Mr. Costain on the ground, and took out his handcuffs, but then, moments later, returned them to their pouch. Officer Omar testified that he had taken out his cuffs because he saw the struggle and it appeared to him that Officer Dobbs could not complete the arrest. However, according to Officer Omar, he then saw that Officer Dobbs had managed to handcuff Mr Costain, so he returned his cuffs to the pouch. He then put on black gloves, and his evidence was that he did so in order to conduct a pat down search of Mr. Costain.
[22] While there are some issues with Officer Omar’s evidence, in particular, that he did not see the final two strikes by Officer Dobbs that are apparent on the video, Officer Omar’s evidence about the cuffs and donning his search gloves is evident on the video. It is also, as I have noted, consistent with safety practices that Mr. Costain would not be searched in these circumstances until he had been cuffed. I accept the police evidence that Mr. Costain was handcuffed and secured after the final two strikes landed [at around 1:32:15 on the video].
[23] The defence also called three character witnesses in support of Officer Dobbs: Staff Inspector Mike Earl of the Toronto Police Service, who has known Officer Dobbs since selecting him in 2013 to work in an administrative capacity on a special project dealing with photo recognition, fraudulent drivers’ licenses and criminals obtaining false identification; long-time friend and defence counsel Paul Macneil; and another long-time friend Jonathan Jones, a researcher with a number of post graduate degrees who leads evaluations of international development programs. Each character witness spoke in very positive terms about Officer Dobbs’ general reputation for integrity and honesty. Staff Inspector Earl stated that Officer Dobbs exceeds the core values of the Toronto Police Service, and all three described his general disposition as very even-keeled and peaceable. While this evidence is of limited value, as explained in R. v. Clarke (1998), 129 C.C.C. (3d) 1 (Ont. C.A.), at para. 21, I have considered it in the context of whether Officer Dobbs is likely to have committed the offence charged and whether he is telling the truth.
Analysis
[24] This case invokes section 25(1) of the Criminal Code, R.S.C., 1985, c. C-46. This section protects police officers from criminal liability for actions committed in the course of enforcing or administering the law and sets out the legal constraints on a police officer’s use of force.
[25] The relevant portion of this section 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
(b) as a peace officer or public 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.
[26] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 34-35, the Supreme Court reviewed section 25 of the Criminal Code, and examined the legal constraints on a police officer’s use of force. There are three elements to s. 25(1): (1) the police officer’s action must be authorized by law (i.e. the arrest must be lawful); (2) the police officer must have acted on reasonable grounds; and (3) the police officer must have used only as much force as was necessary in the circumstances: see Nasogaluak, at para. 34; and Chartier v. Greaves, 2001 CarswellOnt 563 (S.C.), at para. 55.
[27] The onus is on the Crown to disprove the elements of s. 25(1) beyond a reasonable doubt.
[28] In this case, the arrest was lawful, meeting the first requirement of s. 25(1).
[29] The second element requires that a police officer act on reasonable grounds in performing the action. This is a ‘modified objective test’, as explained by Hill J. in R. v. DaCosta, 2015 ONSC 1586, at para. 105:
Accordingly, this modified objective test (Nasogaluak, at para. 34) takes account of not only the external conditions including urgency and the imminence of the threat, the risk posed by the threat, the time to react, the unknowns and limited information available (Hill, at para. 73), but also such factors as the knowledge, training and experience of the officer: MacKenzie, at paras. 61-4[.]
[30] The Crown submits that Officer Dobbs’ conduct does not meet the modified objective test. In particular, the Crown submits that Officer Dobbs’ belief that Mr. Costain needed to be restrained was not subjectively reasonable and that Officer Dobbs’ concern about a weapon was not objectively reasonable.
[31] At the time of the arrest, Officer Dobbs relied on the information that he had received, namely, that Mr. Costain had just tried to run over a police officer. He knew that Mr. Costain’s car had been damaged all over, and was possibly involved in a roll over. Officer Dobbs had been involved in a car pursuit of Mr. Costain, a pursuit that was abandoned for safety reasons. Mr. Costain did not comply with the initial police command to go to the ground. Officer Dobbs did not know if Mr. Costain had a criminal record or a record for violence. He did know that he was a very large and strong person.
[32] Officer Dobbs acknowledged that there were no physical indicia to suggest that Mr. Costain had a weapon and that it would be unusual for a suspect to keep a weapon by his chest area. Nonetheless, Officer Dobbs had a concern that Mr. Costain could have a weapon in his waist area. The law does not require an officer in these circumstances to “wait and see” if the end result is a weapon. In my view, the dynamics of an arrest as described in R. v. Golub (1977), 34 O.R. (3d) 743 (C.A.), at paras. 44-45, are apposite:
… Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.
In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.
[33] I find that Officer Dobbs’ belief that Mr. Costain needed to be restrained and his concern about Mr. Costain’s weapon were both objectively and subjectively reasonable, and therefore in using force to arrest Mr. Costain, he was acting on reasonable grounds.
[34] The last question for determination is whether the Crown has established beyond a reasonable doubt that the blows to Mr. Costain, as evidenced on the video, were not necessary in the circumstances. In other words, were the blows excessive? This too is analyzed on a modified objective standard. As the Alberta Court of Appeal stated in Crampton v. Walton, 2005 ABCA 81, at para. 43, “[t]he third branch focusses exclusively on the amount of force used. Even if the police acted on reasonable grounds … they will be denied the protection of s. 25(1) if they used excessive force.”
[35] In Nasogaluak, Lebel J. considered how to analyze whether force used by police is excessive, stating at para. 32 that, “[w]hile, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping custody, the allowable degree of force to be used remained constrained by principles of proportionality, necessity and reasonableness.”
[36] As indicated, there are serious issues with Mr. Costain’s evidence. His evidence about
i. his drinking ‑ when and where it occurred; ii. the nature and location of the accident; iii. his desire to have the assistance of the police after the hit-and-run; iv. when he was handcuffed; and v. whether he lost consciousness
cast serious doubt upon his version of events. He engaged the police in a pursuit and acknowledged that before reaching the taxi stand in front of the King Edward, he had been trying to evade the police. The defence submits that when the totality of Mr. Costain’s evidence is considered, including the different versions recounted to the police, at the preliminary inquiry, his own trial and this trial, one must conclude that an oath to tell the truth is meaningless to Mr. Costain. In sum, the defence submits that the evidence of Mr. Costain as to what occurred at the time of his arrest must be rejected.
[37] While the Crown concedes that there are issues with Mr. Costain’s evidence, the Crown position is that these issues relate to conduct that occurred before the assault by Officer Dobbs. The Crown submits that Mr. Costain should be believed as to what occurred on arrest and that together with the video tapes, there is reliable and objective evidence of the assault. I am grateful to the Crown for providing me with a computer that played a clear version of the video tapes.
[38] The Crown points to the first two blows on the videotape from cruiser 5142, at around 1:31:29, that are then followed by about a 10-12 second lull in the action in the videotape between 1:31:33 and 1:31:45. The Crown submits that during this time period, there are no signs of resistance from Mr. Costain. The Crown position is that Mr. Costain had either lost consciousness, was handcuffed or simply not resisting, and as such, the force applied (beginning at around 1:31:45/46) was unnecessary.
[39] As stated, I do not accept Mr. Costain’s evidence that he lost consciousness; this was contrary to what he reported to the EMS on scene and to the staff at St. Michael’s Hospital. I also do not accept that he was handcuffed at this point. As already noted, I find Mr. Costain’s evidence as to when he was cuffed incredulous, especially when considered against the video which shows Officer Dobbs and Officer Omar reaching for their cuffs later in the interaction. Had Mr. Costain been cuffed after the initial blows, the other officers would have had no reason to reach for their cuffs moments later. As such, of the Crown’s theory, in my view, the only supposition that remains for consideration is that Mr. Costain was simply not resisting.
[40] In this regard, the Crown relies on the visuals that Officer Dobbs, who is straddling Mr. Costain, is not being jostled or moved, that there is no sign that Mr. Costain was kicking his legs or flailing, and that Officer Dobbs and Officer Nyznik are each only using one hand to restrain Mr. Costain. Officer Dobbs is seen reaching for his handcuffs and Officer Nyznik appears to be trying to use his shoulder radio. The Crown submits that if Mr. Costain was resisting, the officers would be using both their hands to control him. Then, after the momentary calm or standstill, at around 1:31:45/46, Officer Dobbs is seen delivering 10 consecutive strikes to Mr. Costain, which by his own account, he landed as hard as he possibly could.
[41] Two additional blows are delivered some three seconds later, at which time the video shows Officer Dobbs looking away from Mr. Costain and at the police cruiser coming down the street to assist.
[42] The Crown submits that as Officer Dobbs was not being tossed around, and because he had the ability to reach for his cuffs and adjust his glasses, one must conclude that there was no sign of resistance from Mr. Costain during this period.
[43] The Crown further submits that when the video from cruiser 5152 is frozen at the frame at 1:30:31, it appears, although not with great clarity, that at that time Mr. Costain’s arm was already pulled back. Nonetheless, Officer Dobbs continues to strike after that time.
[44] Officer Dobbs, at the time of the arrest, was relying on information that Mr. Costain had just attempted to run over a police officer, and he had a reasonable concern that Mr. Costain had a weapon. The arm movement of Mr. Costain that purportedly caused Officer Dobbs to act as he did is not visible on the video. It is only Officer Dobbs’ actions that are visible. Officer Dobbs’ evidence is that after the momentary static period of some 12 seconds, Mr. Costain again began resisting and that it was a struggle to place him in the cuffs in order to control him. The evidence that cuffing Mr. Costain required two sets of cuffs linked together, and the combined efforts of both Officers Dobbs and Nyznick to secure the cuffs is not in dispute. It is plausible that the tensing of the arm and the opposition to it being pulled back would not cause the jostling that the Crown submits is indicative of resistance. Further, the body language of Officer Dobbs shown on the video and upon which the Crown relies does not definitively contradict his evidence.
[45] In my view, the frame-by-frame analysis put forth by the Crown is not how Officer Dobbs’ conduct should be examined. Rather, the entire circumstances must be reviewed in context. To engage in freeze-frame, second-by-second reconstruction is to engage in the reflective hindsight or the “Monday morning quarterbacking” of police conduct that the courts caution against: see R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24.
[46] That said, let me be clear. There is no issue that the video depicting 10 or more hard blows in a row is shocking. The optics of the force used by Officer Dobbs are not good, and trigger a visceral reaction that the aggression was unnecessary.
[47] However, in establishing the contextual background to support its position that the use of force was excessive, the Crown cannot rely on the evidence of Mr. Costain. It is entirely unreliable and at times unbelievable. The Crown is left with the videos.
[48] The Crown points to the facts in R. v. Rice, 2015 ONCA 478, in support of its position that the force used was excessive. In Rice, during a police investigation into a disturbance at an apartment building, a surveillance video captured the police officer leaning over a suspect as he was lying on the stairwell floor. The video shows the respondent hitting the suspect in the face with an open palm and twice kicking him, once in the ribcage area and once in the back. The trial judge found that hitting the suspect in the face was not excessive force. However, he found that the two kicks to the suspect, evidenced on the video, were unnecessary, amounting to excessive force. He convicted the police officer of assault, a conviction that was upheld by the Ontario Court of Appeal. The trial judge referred to the video in that case as the “tie breaker”. The Court of Appeal described it as a “very telling video”.
[49] In contrast, the videos in this case provide only half the picture. The videos are inconclusive on what actions Mr. Costain was taking, and in particular, if he was tensing his arms in resistance and trying to place them as Officer Dobbs described.
Conclusion
[50] In sum, in all the circumstances, it cannot be said that Officer Dobbs did not have a subjective belief that the force he applied was necessary to restrain Mr. Costain and ensure that he did not have a weapon, and that this belief was not objectively reasonable. Nor can it be said, given the evidentiary vacuum about what Mr. Costain was doing and Mr. Costain’s own evidence that any injuries he suffered were as a result of the initial takedown, that the degree of force used was not a proportionate response in the circumstances, or that it was excessive. In these circumstances, the officer cannot be expected to measure the force used with exactitude: see Nasogaluak at paras. 32, 35.
[51] It may indeed be the case that the force applied was excessive, but, as we all know, the standard of proof for the Crown is proof beyond a reasonable doubt. In large part, the Crown relies on the “body language” of Officer Dobbs as seen on the video to establish guilt. However, the body language is indeterminate.
[52] I am mindful of the principles of W.(D.), [1991] S.C.J. No. 26 (S.C.C.). In the end, after considering all of the evidence, I am left with some reasonable doubt that the force Officer Dobbs applied to arrest Mr. Costain was excessive.
[53] Christian Dobbs is found not guilty of assault.
B.L. Croll J.
Released: August 4, 2016