R. v. Beseiso, 2018 ONSC 5042

R. v. Beseiso, 2018 ONSC 5042

COURT FILE NO.: DATE: 20180823 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ALEX BESEISO Appellant

COUNSEL: M. Coristine, for the Respondent Self-Represented

HEARD: July 25, 2018

[On appeal from the judgment of Jaffe J. dated June 23, 2017]

MILLER J.

1Alex Beseiso was found guilty on June 23, 2017 of on August 23, 2016 Causing a Disturbance and Assault Peace Officer. He appeals from his finding of guilt on these charges on the basis that the learned trial judge erred in finding no violation of s. 9 of the Charter. In his submissions on the hearing of the appeal, Mr. Beseiso also submitted that the trial judge failed to address in her Reasons for Judgment the defence of self-defence raised by him at trial.

2It is the Crown’s position that the trial judge did not err in her finding there had been no violation of Mr. Beseiso’s s. 9 Charter rights; but in the alternative, that the law does not permit the exclusion of evidence of the actus reus of an offence. The Crown submits that the trial judge’s Reasons for Judgment adequately address Mr. Beseiso’s defence of self-defence.

The Trial

3On July 25, 2016, Alex Beseiso was involved in an unrelated incident that resulted in criminal charges. On Tuesday August 23, 2016, Mr. Beseiso attended the Ontario Court of Justice in Milton, Ontario to speak to the above matter. Mr. Beseiso became involved in a verbal dispute with a court officer just outside of the courtroom. That officer called for back-up and when other officers attended the area, Alex Beseiso assumed an aggressive stance with his chest puffed out, attempting to engage the officers in a physical confrontation. The brief-yet-loud confrontation occurred outside a busy set date courtroom as members of the public and courtroom staff were coming and going. Alex Beseiso was arrested and later charged with Assaulting a Peace Officer and Causing a Disturbance.

4The trial began on March 3, 2017 before Jaffe J. at the Ontario Court of Justice in Milton, Ontario. The Crown called four witnesses. At the conclusion of the Crown's case, Alex Beseiso raised, for the first time, a Charter motion pursuant to Section 9, alleging that he had been arbitrarily detained prior to his arrest.

5All parties agreed that Alex Beseiso could call his own evidence and argue his Charter motion without the Crown re-opening its case although Mr. Beseiso had explicitly waived the need to consider the circumstances of his arrest during the Crown's in-chief of its witnesses. Mr. Beseiso and the Crown made submissions, based on the evidence before the Court, as to whether there had been a s.9 Charter violation. The trial judge deferred submissions on s. 24 (2) until she had rules on the s. 9 application. Both the Crown and Mr. Beseiso also made submissions on whether there should be a directed verdict.

6On March 24, 2017, the trial judge orally dismissed Mr. Beseiso's Charter motion, finding that no detention had crystallized prior to arrest. She also dismissed Mr. Beseiso’s motion for a directed verdict. Alex Beseiso then testified on the trial proper. After hearing Alex Beseiso's evidence, the trial judge invited him to re-address his Section 9 Charter motion during closing submissions.

7On June 23, 2017, in her Reasons for Judgment, the trial judge again dismissed Mr. Beseiso's Section 9 motion. She then found Alex Beseiso guilty of both counts -Assaulting a Peace Officer and Causing a Disturbance.

The Facts

8The evidence on the trial was that on August 23, 2016, Michael Godinho, an articling student with the Milton Crown Attorney's Office was working in the set date court, Courtroom 9. Court was scheduled to begin at 9:00 a.m. The court reporter advised Mr. Godinho that Alex Beseiso had arrived around 8:30 a.m., and became agitated when he learned he could not have his matter heard first.

9Mr. Godinho explained the normal procedure of calling counsel matters before self-represented persons to Alex Beseiso, but Alex Beseiso did not want to listen. Mr. Godinho nonetheless agreed to ask the presiding Justice of the Peace to accommodate Alex Beseiso, if possible. Mr. Godinho also advised Alex Beseiso to sign up for a judicial pre-trial to be conducted that day since Alex Beseiso wanted his matter to proceed as quickly as possible. Mr. Godinho then took Alex Beseiso out of the courtroom to show him where to go. At that point, Alex Beseiso again seemed agitated due to the wait time, but eventually calmed down and thanked Mr. Godinho for his assistance.

10As Mr. Godinho and Alex Beseiso were standing in the area in the courtroom hallway vestibule leading to Courtroom 9, Special Constable Wickett, a courtroom officer who had been in Courtroom 9 with Alex Beseiso earlier that morning, began to walk towards the two men in the vestibule. At that point, Alex Beseiso became agitated. He began asking Special Constable Wickett "why are you walking towards me?" Mr. Godinho observed that Special Constable Wickett tried to calm down Alex Beseiso, with Officer Wickett suggesting Alex Beseiso go for a walk with him. Alex Beseiso refused to go anywhere with Officer Wickett. At that point, Mr. Godinho left to go back to Courtroom 9. He could later hear some yelling from inside the courtroom, but the details were not discernable to him. In cross-examination Mr. Godhino testified that he did not observe any fighting and he would describe the voices he heard as “loud”.

11On August 23, 2016, Special Constable Wickett was assigned to Courtroom 9, where his duties involved noting the return dates of the various matters. He heard Alex Beseiso asking for disclosure, and remarking to one of the Crowns (Godinho) that he wanted to go first without waiting for the lawyers. Officer Wickett then observed Alex Beseiso pacing loudly with clenched fists at the back of the courtroom.

12Special Constable Wickett stepped out of the courtroom and approached Alex Beseiso in the hallway with the intention of calming him down. Officer Wickett suggested they go for a walk so that he could explain the court process to Alex Beseiso. Alex Beseiso refused to go anywhere with Officer Wickett. People were now beginning to file into Courtroom 9. Special Constable Wickett determined that he would not let Alex Beseiso re-enter the courtroom because he believed Alex Beseiso would be disruptive to the court proceedings.

13While Special Constable Wickett was standing with Alex Beseiso in the cramped vestibule area, Special Constable Leach arrived to join them. Apparently one of the court clerks had requested assistance due to the situation. Special Constable Wickett then received a radio call asking if he needed assistance and he confirmed that he did. Once Special Constable Leach arrived and placed himself directly beside Special Constable Wickett Alex Beseiso puffed out his chest and moved toward the chest of Special Constable Leach, while saying "I'm going to come, come at you." Special Constable Wickett testified that from his perspective Mr. Beseiso made contact with the chest of Special Constable Leach. Special Constable Guy, who had just arrived on -scene pursuant to the call for assistance, immediately placed Alex Beseiso under arrest.

14On August 23, 2016, Special Constable Leach was working at the front of the courthouse when he received information that Special Constable Wickett had called for assistance in Courtroom 9. As he made his way over to the courtroom, Officer Leach observed Alex Beseiso and Special Constable Wickett outside in the vestibule. As Special Constable Leach hurriedly approached the two men, he could hear Alex Beseiso speaking angrily and observed Special Constable Wickett attempting to calm him down.

15Special Constable Leach recalled how Alex Beseiso angrily approached him with a puffed out chest, Alex Beseiso's face coming within inches of his.· Special Constable Leach testified that Alex Beseiso did not contact him with his chest, nor did Alex Beseiso do anything threatening with his hands. Officer Leach also said Alex Beseiso did not verbally threaten him. However, Special Constable Leach saw Alex Beseiso was aggressive and believed that Alex Beseiso wanted to hit him.

16On. August 23, 2016, Special Constable Guy was in his office at the courthouse when he overhead a fellow officer on the phone discussing a call for assistance outside Courtroom 9. As Special Constable Guy ran towards Courtroom 9 he could hear loud noises.

17Special Constable Guy testified that as he arrived at the vestibule he observed Special Constables Wickett, Leach, and Alex Beseiso standing in close quarters. Alex Beseiso was facing Special Constable Leach, standing in a "bladed fighting stance", with one foot in front of the other. His hands were clenched at his sides and his chest was barrelled out. Special Constable Guy was concerned that Alex Beseiso would attempt to harm Special Constable Leach. For that reason, he immediately arrested Alex Beseiso.

18Other witnesses called by Mr. Beseiso included Special Constable Payne and Officers McCulligh, Reilly and Cook. Each of these witnesses gave evidence about Mr. Beseiso’s demeanour following his arrest. Staff Sgt. Cook’s evidence conflicted with that of other witnesses in that he recalled attended Courtroom 9 with Officer Guy and seeing Officers Wickett and Leach handcuffing Mr. Beseiso.

The Testimony of Alex Beseiso

19On August 23, 2016, Alex Beseiso arrived at the Milton courthouse 45 minutes before the start time of 9:00 a.m. He was admittedly not happy to begin with, but he became "irate" when the court staff asked him to vacate the courtroom. Despite agreeing to exit the courtroom, Alex Beseiso re-entered briefly to obtain some disclosure. Upon reading his disclosure, Alex Beseiso became "frustrated and sad".

20Deciding that he wanted to set a trial as fast as possible, Alex Beseiso approached the Crown inside Courtroom 9, Mr. Godinho. Mr. Beseiso admitted that he spoke to Mr. Godinho in an irate tone, although not yelling or screaming. Alex Beseiso could see that the courtroom officer (Wickett) was not pleased with his self-described "confrontational, irate and demanding" demeanour.

21Mr. Beseiso testified that Special Constable Wickett approached him while he was standing and talking with Mr. Godinho. Alex Beseiso testified that he was walking out of the courtroom with Mr. Godhino in a calm manner and had reached the back of the courtroom, when Special Constable Wickett pursued him, asking him to walk with him. Alex Beseiso asked in a loud, aggressive tone if he was being detained or arrested. Suddenly, Alex Beseiso was surrounded by several officers, all in his personal space.

22Alex Beseiso testified that he turned to confront Officer Leach and because he believe he was about to be assaulted, Alex Beseiso assumed a defensive stance with his fists closed and chest puffed out. He locked eyes with Special Constable Leach and asked "how can I help you". At that point Officer Guy aggressively pushed Alex Beseiso up against the wall and placed him under arrest.

S. 9 of the Charter

23Mr. Beseiso submits that the learned trial judge erred in her determination that he was not arbitrarily detained.

24Mr. Beseiso submits that Officer Wickett’s decision to call for back-up inevitably resulted in his detention as the back-up officers arrived expecting to find a problem, and surrounded him in the small vestibule thereby physically detaining him or at least psychologically detaining him. Mr. Beseiso submits that he was arbitrarily detained as there was no objective reason for Officer Wickett to call for back-up, and that this preceded any actions that could have been interpreted as assault of police or of causing a disturbance. Mr. Beseiso submits that the trial judge did not fully understand this argument and did not properly address it in her reasons for dismissing the Charter motion.

25Mr. Beseiso submit that Special Constable Wickett had no grounds to call for back up, but that his decision to do so, knowing that other officers would respond and surround Mr. Beseiso amounted to an arbitrary detention of Mr. Beseiso.

26Mr. Beseiso relies on evidence that once Officer Wicket was in the vestibule with Mr. Beseiso, Mr. Godhino left, as there was not enough space. However, within seconds, Mr. Beseiso was in a small vestibule, that barely fit two people. He submits that surrounded by three officers and a Staff Sgt. put five people in total crammed in an area that barely fits two. Mr. Beseiso submits this explains the conflicting testimony between the special constables as to whether there were chests touching or not.

27Mr. Beseiso argued that at this point he was detained by the Milton special constables, without objective or subjective ground for that detainment. He could not move around, he was not free to go anywhere. He submits that the trial judge did not understand that fully.

28Mr. Beseiso further submits that it was the result of the overwhelming police presence which disturbed the peace. In essence, had the overwhelming police presence not been there, the second essential element of the crime of charge of cause disturbance, a disruption to the use of the public space, would not have been met. Had Mr. Beseiso not been arbitrarily detained, there would not have been a disruption.

29Mr. Beseiso submits that when a citizen is arbitrarily detained, anger is a natural human response. He agrees that it is more probable that not that his body language showed anger, and aggression. He submits however that body language was not an assault on police. “It was a defensive gesture, from a frustrated man, who is knowledgeable in his rights, and knew they were being violated.”

30Mr. Beseiso further relies on evidence that following his placement in the holding pen he was questioned by O.P.P. officers who were part of an anti-terrorism team. It is Mr. Beseiso’s belief that Officer Guy charged him with assault police by gesture, not because he saw a gesture of assault, but because he was of the opinion he was dealing with a terrorist, so he interpreted the circumstances to suit an arrest and charges.

31After hearing oral submissions on both March 3, 2017 and again on May 15, 2017, the trial judge found that Alex Beseiso’s rights under Section 9 of the Charter had not been breached.

32The trial judge commenced her initial ruling on the Section 9 motion, on March 24, 2017 by reviewing the Crown's evidence, which was the only evidence before her at that time, followed by the parties' respective arguments. She then considered the applicable provisions and the relevant authorities, such as R. v. Mann 2004 SCC 52, [2004] S.C.J. No. 49 and R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32. The trial judge specifically addressed the issue of "psychological detention" and concluded that Mr. Beseiso had not been physically detained until he was arrested, and that there were grounds to do so, and that he had not been psychologically detained before that.

[33] The trial judge made findings of fact specific to Alex Beseiso's Section 9 argument: i. Her Honour accepted the evidence of Officer Wickett, that he observed Alex Beseiso to be agitated inside Courtroom 9. ii. that Officer Wickett initially approached Alex Beseiso and asked him to go for a walk with the intention of calming him down and preventing a distraction in the courtroom; iii. that Alex Beseiso returned to the vestibule to confront Officer Wickett; iv. that Officer Leach observed Officer Wickett attempting to calm down Alex Beseiso without using any aggressive language and without making physical contact; v. that Alex Beseiso was free to walk away at any point before his arrest, and that he was only precluded from re-entering the courtroom; and vi. that Officer Guy had reasonable and probable grounds to believe a criminal offence had been committed when he physically detained Alex Beseiso;

34In her oral reasons for judgment on the trial proper, the trial judge re-addressed the Section 9 motion in light of the defence evidence heard at trial. Essentially, she remained unconvinced that Alex Beseiso was psychologically detained by officers in the courtroom vestibule. She made the following personal observations of Alex Beseiso from his conduct during the trial proceedings:

Mr. Beseiso must have known that he was free to leave the courtroom or courthouse at any time. I've observed Mr. Beseiso throughout these proceedings and he certainly does not strike me as an easily intimidated individual. To the contrary, he's assertive, confident and at times loud. I do not believe that Officer Wickett's short-lived encounter with him, an invitation to go for a walk, caused Mr. Beseiso to feel as though he had no choice but to stay in the officer's company.

Self-Defence

35In the course of his oral submissions on the appeal, Mr. Beseiso also submitted that the facts support a finding that his gesture toward Special Constable Leach was a defensive gesture. He submitted that he made this argument to the trial judge and in her reasons she did not touch upon it. He submitted that this Court could make its own assessment of the defence of self-defence or set it down for a new trial on that issue.

36The Crown submits that the Reasons for Judgment were, overall, adequate in addressing this issue as well. There were several references in the Reasons for Judgment to Mr. Beseiso’s testimony and argument that he had taken only a defensive posture. The Crown submits that in rejecting Mr. Beseiso’s evidence the trial judge did adequately address the defence of self-defence.

Law

37The Crown relies on the decision of Chief Justice Mclachlin for the Supreme Court of Canada, in R. v. R.E.M. 2008 SCC 51, [2008] S.C.J. No. 52 at paragraph 32, citing the Court's decision in R. v. Dinardo:

Where credibility is a determinative issue, deference is in order and intervention will be rare. While the reasons must explain why the evidence raised no reasonable doubt"there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel".

38If this Court were to find that the trial judge erred in her conclusions in regard to s. 9 of the Charter, the Crown submits that the actus reus of an offence cannot be excluded as evidence pursuant to s. 24 (2) of the Charter. In this regard, the Crown relies on R. v. Hanneson (1989), 49 C.C.C. (3d) 467 (C.A.); R. v. Ha, 2010 ONCA 433, [2010] O.J. No. 2500 (C.A.) at paragraph 7; and R. v. Seecharran, [2016] O.J. No. 6395 (S.C.J.) at paragraph 4.

39While this statement of law may be correct, in the circumstances of this case, were there to be a finding of arbitrary detention, the essential element of Assault Peace Officer, requiring that the peace officer in question be in the execution of his duty, would be impacted. Given my findings below it is unnecessary for me to address this submission in respect of this case.

Analysis

40Alex Beseiso’s position is that the trial judge erred in finding that he was not arbitrarily detained contrary to s. 9 of the Charter. He additionally submits that the trial judge failed to adequately address his evidence and argument at trial that his gesture to police on August 23, 2016 was defensive in nature.

41It is the Crown’s position that the trial judge provided comprehensive reasons for judgment which provide an intelligible basis for the ruling in a manner sufficient to allow meaningful appellate review. The Crown submits that reasons were fully supported by the evidence before her, responsive to the live issues and key arguments of the parties, and properly considered the substance of what was in issue. Her Honour properly applied the binding authorities to her fact-finding. Alex Beseiso has not demonstrated any palpable or overriding errors. The trial judge's factual findings and legal conclusions are not only reasonable, they are entirely warranted on the evidence and are entitled to deference.

42It is the Crown’s position that the trial judge's key factual finding, that Alex Beseiso was not psychologically detained by Officer Wickett, is entitled to deference. It was based in large measure on credibility and was fully supported on the record before her. Justice Jaffe's reasons adequately explained why she concluded that, from Alex Beseiso's vantage point, he would have known that he could simply walk away from the situation at any point prior to his arrest.

43It is the Crown’s position that given the context of the record, the issues and the submissions of the parties in this case, Justice Jaffe's reasons for judgement were adequate on a "functional context-specific approach" since i) they were reasonably intelligible to the parties, ii) reveal the foundations of her decision when viewed in the context of the particular circumstances of the case and the trial record, and iii) they provide a basis for meaningful appellate review.

44While I might have reached a different conclusion, on the evidence, than the trial judge, that is not the test on appellate review. I am satisfied that there was a proper evidentiary foundation for the findings made by the trial judge and those findings are entitled to deference. The appellate court was not there to see and hear the witnesses testify. I am satisfied that the trial judge’s conclusion that Mr. Beseiso was not arbitrarily detained, either physically or psychologically was properly founded on the evidence and that in coming to that conclusion she did not err in law.

45In respect of Mr. Beseiso’s argument that the trial judge did not properly consider his evidence and argument that his gesture toward police was a defensive one, it was clear on Mr. Beseiso’s evidence that he denied that any gesture he made was assaultive in nature, but merely readying himself for an attack by the police. The trial judge’s Reasons for Judgment refer to this evidence and argument in several places, and clearly reject Mr. Beseiso’s evidence in this regard, finding that Mr. Beseiso’s gesture was an aggressive one, constituting an assault, and that throughout the interaction with police, until he was arrested, he was free to leave.

46I am satisfied both that the trial judge was alive to and addressed adequately in her Reasons for Judgment, Mr. Beseiso’s position that his gesture was only a defensive one. I find there was a proper evidentiary basis on which to do so.

47The appeal is dismissed.

MILLER J. Released: August 23, 2018

R. v. Beseiso, 2018 ONSC 5042