R. v. Howser

Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Citation: 2012 ONCJ 476

Date of Judgment: July 19, 2012

Judge: Melvyn Green, J.

Parties

Crown: Her Majesty the Queen

Counsel for Crown: O. Delgado

Defendant: Peter Howser

Counsel for Defendant: E. Rolfe

Hearing Dates

October 26-27, November 17, 21 and 23, 2011 and January 17, 20 and 27, March 1, April 19, May 22 and 23, 2012

Reasons for Judgment

A. Introduction

[1] Peter Howser, the defendant, celebrated his 26th birthday with a number of friends on the evening of July 10-11, 2010. They spent several hours in a club in Toronto's "entertainment district". They left about 3am, joining hundreds, if not thousands, of other late-night revellers then making their way home as the bars and clubs closed. There was, as always at that hour, a substantial police presence in the area, including mounted officers and some teams on bicycles. The defendant, it is alleged, shouted various offensive remarks at a senior officer directing traffic at the busy corner of Richmond and Peter Streets and at a number of bike-riding officers passing through the same intersection. A few minutes later and about a block east, the defendant is said to have engaged in an altercation with several other police officers at the junction of Richmond and Widmer Streets. The first set of allegations resulted in the defendant later being charged with uttering threats to damage property of the Toronto Police Service (TPS) and to cause serious bodily harm to an officer (S/Sgt. Gregory Thorpe). The latter incident gives rise to additional charges of assaulting a police officer (Cst. Neill Cameron) with intent to resist arrest and causing a disturbance in a public place, "to wit: Richmond Street West and Widmer Street", by "fighting and screaming and shouting and swearing". Although spanning two locations, at least a dozen participants and a small host of charges, the entire incident lasted no longer than about ten to twelve minutes.

[2] Some eight TPS officers testified at the defendant's trial, one of whom (the officer in charge) did so at the behest of the defence. The defendant also testified. His position, in brief, is that he never uttered any threats or caused a disturbance. Further, he says that he was never lawfully arrested and, in any event, rather than assaulting any officer he himself was severely battered by the police. In addition, the defendant claims that the state's failure to preserve potentially material videotapes taken by police-controlled CCTV cameras in the entertainment district may well have deprived him of exculpatory evidence in breach of his Charter s. 7 right to make full answer and defence and that the just and appropriate remedy for this constitutional violation, and/or for that arising from the physical abuse he endured, is a stay of the charges he faces.

[3] The evidentiary hearing of the defendant's constitutional claims and the trial proper were conducted in tandem by way of a blended proceeding. The defendant carries the burden, on a balance of probabilities, of establishing any breaches of his Charter-protected rights and the legal correctness of the remedy sought. The Crown, as always, bears the onus of proof, on a standard of proof beyond reasonable doubt, with respect to all essential elements of each of the four offences charged. My reasons for judgement, which follow, address only the merits of the Crown's prosecution of the defendant. The defendant's application for Charter relief need only be reached if I find him guilty of one or more of the counts on which he was arraigned. Accordingly, argument and any rulings respecting the constitutional claims are deferred pending my determination, exclusively on the merits, of the charges faced by the defendant.

B. Evidence

(a) Introduction

[4] The events of July 10th and 11th lend themselves to dramaturgical organization. Conceived as a three-act play, the first act encompasses the period during which the defendant directed abusive comments to the police at a busy intersection. The second relates to the relatively brief transition from there to an intersection about a block removed. The third and climactic scene deals with the physical altercation between the police and the defendant, culminating in the latter's detention and his transport to a police station. A prologue, told solely in the words of the defendant, precedes his first contact with the police. An epilogue of sorts, spanning parts of the day or so after the defendant's arrest, comprehends some events bearing on my assessment of the police allegations and the competing defence claims.

[5] There are several important factual considerations that help frame and inform the July 11th narrative:

[6] First, the Toronto G20 Summit occurred a mere two weeks earlier. A small minority of the G20 protestors engaged in violent tactics, including the burning of police cars, which rightly earned them public notoriety. On the other hand, at least some of the police response to even peaceful demonstrators was such as to attract wide-scale criticism from local media and a number of public figures for the excessive use of force. Many Torontonians appear to have shared this latter assessment. In any event, the emotional impact of the G20 confrontations was still fresh and raw on July 11, 2010.

[7] Second, closing time in the entertainment district is notoriously loud, boisterous and potentially volatile. The patrons of many dozens of clubs and bars return to the streets at almost the same time. Many are intoxicated. Some are belligerent. Inhibitions are generally relaxed. The police witnesses uniformly describe an elevated level of violence and anti-social behaviour. Confrontations, some graduating into fights, are commonplace, and the police are routinely challenged by what they see as these and other threats to public decorum and safety.

[8] Finally, the defendant is an obese man. His excessive weight had exposed him to hurtful comments through much of his life. He is understandably sensitive about his weight. He carried between 320 and 340 pounds in July 2010. He was a little heavier by the time he testified at trial.

(b) Prologue

[9] The defendant is employed in the car rental industry. He has never previously been charged, let alone convicted, of a criminal offence. He and several friends planned to celebrate his 26th birthday on the evening of July 10, 2010. All five are Caucasian males. They first gathered at the defendant's apartment where they shared a bottle of Crown Royal and coke, the defendant imbibing two or three drinks. The defendant did not consume any drugs. He initially testified that he and his friends were watching a Leafs hockey game while they had a few drinks. Pressed in cross-examination as to the unlikelihood of watching a Leafs game in mid-July, the defendant allowed that there was no game that night and that he and his friends had simply been watching TV and talking. He could not recall the programming and explained his earlier reference to a Leafs game as an innocent mistake provoked by his nervousness as a witness and the fact that he never misses a Leafs game and subscribes to a cable channel that broadcasts or rebroadcasts Leafs games every day of the year. He had, in short, simply assumed when testifying that if he was in front of a TV set a Leafs game must have been on.

[10] The defendant and his friends had booked a booth at the Embassy nightclub in the entertainment district and arrived there in a minivan cab at about 11:30pm. The group ordered two 26-ounce bottles of clear rum for their table, and the defendant had five or six mixed drinks during those several hours. The bottles were emptied by 2:00am and the defendant ordered a final drink, again a rum and coke. The defendant is "not a drinker by nature". He was feeling inebriated when he and his friends finally left the club. By that time, on his own calculation, he had consumed between seven and nine alcoholic drinks over the course of the evening. Nonetheless, he says he was coherent and fully aware of his situation as he merged with hundreds of others on the street.

[11] The defendant agreed that, after leaving the club, his level of intoxication adversely affected both his judgement and his memory of the ensuing events. His alcohol consumption, he says, made him loud and provided some "liquid courage"; he denied that it made him angry.

(c) Act I: The Events at Peter and Richmond Streets

(i) Introduction

[12] The conjunction of Peter and Richmond Streets is the busiest intersection in Toronto's entertainment district. Richmond is a one-way street and the major westbound exit from the district. To reduce congestion, efficiently drain the area and minimize confrontations, the police routinely close Peter to southbound traffic below Richmond as the bars close.

[13] Staff/Sgt. Greg Thorpe and Sgt. Nancy VanVegheil were conducting uniformed traffic enforcement at the intersection of Peter and Richmond in the early hours of July 11, 2010. Both are very experienced officers who had each served with the TPS for more than two decades. Thorpe had trained many other officers in the use of force, maintaining public order and crowd management. He had also developed related training procedures for the Police College. As the senior assigned officer, he was also in charge of all police activities in the entertainment district on July 11th. There were approximately 40 to 45 officers under his command, including tactical anti-violence, bike and mounted squads.

[14] The structure of the defendant's account of his confrontation with the police at Peter and Richmond is not significantly different from that tendered through Thorpe and VanVegheil. What differs, and crucially so, is the content of their exchange. No witnesses other than these three testified directly as to the words spoken. Other than general noise, none of the bike crew officers heard any shouting, or any comments directed towards them, as they rode through the intersection during the critical minutes when the defendant is alleged to have verbally threatened each of them.

(ii) The Police Account

1. S/Sgt. Greg Thorpe

[15] S/Sgt. Thorpe was monitoring the situation as the bars closed at 3:00am. There were a few hundred persons in the immediate vicinity of Richmond and Peter and heavy traffic. On his police radio he heard police being called to assist at a fight at Peter and Adelaide, a block south of his position. Led by Sgt. Hayward, a number of conspicuously uniformed officers on bikes headed south through the Peter and Richmond intersection in the direction of the reported fight at about 3:10am. As they did, he heard comments directed to them by four young men standing on the southeast corner of the intersection, across Peter Street from where Thorpe and VanVegheil were stationed. The defendant was one of these four men. He was carrying a hotdog or a burrito.

[16] Thorpe read the defendant as the vocal ringleader of this small chorus. As each of the four or five members of the police bike squad rode through the intersection, he shouted, "Go get 'em you G20 fucks. We'll get you next time. Wahoo. We'll burn your police cars again and fuck you up". The defendant's zeal was echoed by and cheered on by those with him. It also attracted the attention of passing pedestrians. One of the men with the defendant yelled, "Go get 'em G20 fucking losers. Burn 'em up". Thorpe well understood the reference to the G20. He expressed having real concerns about the timing and location of the defendant's inflammatory comments and the risk of a fight breaking out. He told the defendant to "Just relax and go home". Instead, the defendant stepped off the curb, took a few steps toward Thorpe and said, "We should have fucked all of you up. Next time we will and we'll burn all your fucking cars". Thorpe told the defendant to get off the street. "I don't have to", the defendant responded. Thorpe repeated his command and the defendant, he says, replied, "Fuck that nigger". The defendant's body was still facing Thorpe but he had turned his head toward his friends as he uttered these words.

[17] Thorpe is a light-complexioned black man of Caribbean descent. Asked in cross-examination about the difference between the words "nigger" and "nigga", he explained that the latter is simply a slang form of "nigger" and carries the same pejorative moral connotation. The word Thorpe says he heard was "nigger" not "nigga"; in either case, he construed the defendant's language as derogatory and racially offensive. The defendant did not make any physically threatening gestures and he did not appear drunk.

[18] Thorpe motioned to his radio as though he were summoning police assistance. One of the other three men at the opposite corner then stepped off the curb, put his hand on the defendant's back and said, "C'mon, let's go". As he walked him away the defendant said, "No! No! Fuck that nigger". The defendant was not facing him at the time, but it appeared to Thorpe that he was trying to pull away from his friend and re-engage the officer.

[19] Rather than risk escalating the situation, Thorpe allowed the defendant and his friend to walk away, eastbound on Richmond. He then used his radio to contact Sgt. Hayward who returned within a couple of minutes with a few other officers on bikes.

[20] The entire interchange between Thorpe and the defendant at the Peter and Richmond intersection lasted no longer than three minutes. Thorpe denied "waddling" during the exchange or otherwise mocking the defendant's weight. He agreed that the word "fat" can be offensive and that he had repeatedly described the defendant as "the fat guy" in his notes, but explained that he only used this expression to help distinguish the defendant from the other unknown suspects and that he had not vocally directed the word "fat" towards the defendant. Thorpe says he was never physically closer than about eight feet from the defendant.

2. Sgt. Nancy VanVegheil

[21] Sgt. VanVegheil joined S/Sgt. Thorpe at the corner of Peter and Richmond at about 3:10am. There were hundreds of pedestrians in the area. Several officers on bikes rode south through the intersection in response to a call. The defendant, who was standing across the street with some cheering friends, yelled at the biking officers as they went by: "Go get 'em you G20 fucks. We'll get you next time. Wa-hoo. We'll burn your police cars again and fuck you up". The defendant appeared angry and aggressive. Some members of the passing crowd stopped to watch the entertainment. One of the men with the defendant yelled, "Go get 'em. G20 fucking losers. Burn 'em up". The defendant then yelled out at Thorpe: "You nigger. You fucking nigger".

[22] Thorpe advised the defendant to calm down. The defendant responded by walking into the intersection and yelling, "We should have fucked all of you up. Next time we will and will burn all your fucking cars". Thorpe directed the defendant to get off the road. "I don't have to" was the response. Thorpe's second command to clear the road was met with a "fuck that nigger" from the defendant, who was then facing his friends. Thorpe walked to within a couple of feet of the defendant and several times repeated his direction as they faced off. The defendant remained silent as a friend escorted him off the road and then, in the company of a few buddies, eastward on Richmond. Like Thorpe, VanVegheil heard the defendant say "nigger", not "nigga", and, again like Thorpe, she attributes the same pejorative meaning to both words. VanVegheil had no recall of Thorpe mocking the defendant's obesity.

3. The Officers' Notes

[23] By agreement of counsel, S/Sgt. Thorpe's and Sgt. VanVegheil's notes were admitted as exhibits at the defendant's trial. The officers had earlier adopted the content of their notes.

[24] VanVegheil's notebook includes a reference to the defendant shouting, "You nigger. You fucking nigger." As earlier reviewed, VanVegheil says these patently offensive words were directed towards Thorpe as the defendant left the curb and walked into the intersection. Other than this racist epithet (which appears in neither Thorpe's notes nor his testimony), and a couple of spelling inconsistencies, the two officers' recordings of the approximately 50 words they attribute to the defendant are identical.

[25] The officers quoting of the defendant's offensive language is interrupted by their descriptions of his conduct and the surrounding events. However, the single above-noted racial phrase aside, an exact transcription of the entirety of the words ascribed to the defendant by Thorpe and VanVegheil, as sequentially recorded and punctuated in each officer's notebook, and as echoed in their testimony, is set out below for comparative purposes:

S/Sgt. Thorpe	Sgt. VanVegheil
Go get 'em you G20 fucks – We'll get you next time. Wahoo! We'll burn you police cars again and fuck you up.	Go get 'em you G-20 fucks. We'll get you next time. Wa-hoo. We'll burn your police cars again and fuck you up.
We should have fucked all of you up. Next time we will and we'll burn all your fucking cars.	We should have fucked all of you up. Next time we will and will burn all your fucking cars
Fuck that nigger!	Fuck that nigger.

The single vocalization ascribed by both officers to a second member of the defendant's party is, again, written in identical language in both Thorpe's and VanVegheil's notebooks: "Go get 'em G20 fucking losers. Burn em up".

[26] Both officers testified to first setting pen to paper some 20 or 30 minutes after the exchange at Richmond and Peter. And both officers denied "fixing" their evidence or otherwise endeavouring to reconcile or harmonize their recollection of the words used by the defendant. Thorpe conceded discussing the defendant's outbursts with VanVegheil "on scene". He wrote up his notes while seated in a police vehicle with VanVegheil near Richmond and Widmer, the location of the defendant's arrest. He denied, however, discussing the defendant's utterances with her while they were in the police car; each was then writing their independent notebook entries referable to the incident. Thorpe expressed no surprise that his and VanVegheil's notes of the utterances attributed to the defendant were identical given, he said, the simplicity of what was said.

[27] VanVegheil recalled writing her notes at the scene and at the station sometime after 4:00am that morning; she was not sure where the interruption in her recording occurred other than that her notes of at least some of the defendant's quoted words were entered at the station. The words she assigned to the defendant in her notes and set down within quotation marks were, to the best of her recollection, his exact words. VanVegheil recalled discussing the words used by the defendant and his associates with Thorpe while they were seated in the scout near Richmond and Widmer, but insisted she "wrote down what [she] heard" and that, other than the "nigger" quote, she did not review each of the defendant's threats with Thorpe. Later she somewhat recast her exchange with Thorpe, allowing that they had discussed the incident in general terms while seated in the police car but she had no recall of discussing any of the specific quotes attributed to the defendant. She was, she said, "somewhat surprised" to learn that her notation of the defendant's utterances was identical to Thorpe's.

(iii) The Defendant's Account

[28] After leaving the Embassy nightclub, the defendant recalled standing on the southeast corner of the Richmond and Peter intersection with two of his friends, Caleb Paul and Tyler Leslie. Another friend, Stephen Hanna, had crossed the street to buy some burritos and the final member of his party, Kelly Paul, was trying to talk to some women he had met at the club. There were a number of police officers, including some on bicycles, blocking the intersection. One of the officers was S/Sgt. Thorpe. Other than Thorpe and PC Cameron (with whom he later had a physical altercation), the defendant did not recognize any of the other police witnesses who testified in the course of these proceedings.

[29] The officers on bicycles rode through the intersection and the defendant and his friends repeatedly shouted at them, "Go get 'em guys. Yahoo! There they go". He could not recall the exact words used, but their tone was clearly one of sarcasm. As the officers biked south the defendant saw Thorpe, who was then standing across the street, about 20 or 30 feet distant, gesture in his direction. His arms were extended so as to create the impression of something rotund and he pantomimed a waddle. The defendant believed that Thorpe was mocking his weight. He had suffered being called "fat" all his life but had never experienced this kind of derision from a police officer. Hurt and offended, the defendant stepped onto the street and rhetorically asked Thorpe, "Are you going to arrest me for being fat? Is it a crime to be overweight in Canada?" Thorpe replied, "No, but I'm going to arrest you for jaywalking". The defendant stepped back onto the sidewalk, turned to Thorpe and yelled, "That's why all your cop cars got burned last week. You guys are all a bunch of fucking assholes". The defendant allowed that he was angry, even furious, and peppered his screaming with expletives.

[30] The defended agreed that he was disgusted by what he had seen on TV of the police conduct during the G20 summit. He denied telling Thorpe he didn't have to get off the street. He also denied saying, "Go get 'em you G20 fucks. We'll get you next time". He had no recall of any of his friends uttering these words or making any explicit references to the G20. No one, the defendant testified, said, "We're going to fuck the police" or "We're going to burn your cop cars". He did agree that his level of speech, tone of voice and the words he used were aggressive.

[31] Steve Hanna, one of the defendant's friends, yelled, "Pete, shut the fuck up". He turned in Hanna's direction and said to him, "No, fuck that nigga". The defendant insisted he used the word "nigga" and not "nigger" and that he only used the word on a single occasion. In essence, the defendant was saying, "No, fuck that dude". Although the word "nigga" referred to Thorpe, the defendant says he would at the time "have made that comment regardless of the ethnicity of the officer". Indeed, the defendant says he thought Thorpe was white when he used the N-word and did not become aware that S/Sgt. Thorpe is a black man until advised by his lawyer on his first scheduled trial date. He then felt ashamed.

[32] Differentiating their moral connotation, the defendant characterized "nigger" as a hateful, offensive, racial slur while "nigga", the word he had used, was more akin to the slang or sub-cultural expressions "man" or "brother" or "more specifically, dude". The defendant is a fan of hip-hop music. As he explained, in that "culture" the term is a "reclaimed" word that is "used on a regular basis". The "problem", the defendant explained,

… is that I'm not of the race of people that should be reclaiming that word. It's not a word that I should've used that night under any circumstances. But it was not in the slightest fashion intended to be a racial slur.

And later:

…it ["nigger"] is a word that was created by white people to specifically demean black people and black people took that word and reclaimed it for themselves to throw it back in the face of people that used it to insult them. And it's not appropriate for me to use it. That does not mean that it is a racist term, but it certainly is not appropriate for me to have used that word.

The defendant agreed he felt embarrassed when he used the term. He also agreed that Thorpe was close enough to hear what he said to his friend. He ought not to have used the word, he testified, adding that he was "not at all" a racist and would have never used the word if he knew Thorpe was black. The word was not part of the defendant's routine vocabulary. He had not previously used the term except when among black friends at college who, he said, effectively gave him permission to do so.

[33] The defendant was still shouting at Thorpe when his friend Steve Hanna physically pulled him away and escorted him east on Richmond Street. Along the way, Steve handed the defendant a burrito.

(d) Act II: Moving East on Richmond

(i) Introduction

[34] Only a block of Richmond Street separates Peter from Widmer – about a 150 yards east, and the location of the defendant's altercation with the police and his ultimate arrest. The defendant's account of this transition is relatively uneventful: He chatted with his friends as they ambled east. Elevated voices from behind the defendant captured his attention a little west of Widmer. He turned to see Tyler Leslie involved in a verbal dispute with a group of twenty-something black men at the stoop of a shawarma shop. The defendant denied engaging with this group. The next thing he knew he was forcefully taken down from behind.

(ii) The Police Accounts

[35] The police accounts of the events at Richmond and Peter following the defendant's departure help explain the expectations and response of those officers who pursued him and his friends.

[36] Thorpe, Sgt. Hayward and all the members of his bike crew testified to meeting at the corner of Richmond and Peter within a couple of minutes of Thorpe summoning Hayward by police radio. S/Sgt. Thorpe says he advised them of the disturbing comments he had heard, described the four men, and directed the officers eastward on Richmond to investigate the defendant and his friends. His primary concern was that the defendant would repeat his aggressive conduct, provoking violence with others. The defendant's comments also caused him concern that the defendant was involved in criminal acts associated with the G20 events. Although he did not tell Hayward that the defendant was "arrestable", Thorpe says he did provide him with enough information to afford reasonable and probable grounds to arrest the defendant for threatening and causing a disturbance.

[37] Sgt. VanVegheil's account of the events immediately following the defendant's departure differs significantly from that tendered through Thorpe and members of Sgt. Hayward's bike crew. Despite claiming to have a good independent recollection of the incident, VanVegheil had no testimonial recall of any officers attending at Peter and Richmond. She remembered Thorpe radioing Sgt. Hayward as the defendant walked east on Richmond and telling him to watch out for four "rowdy and threatening" men, who he described and who he said were coming east on Richmond. VanVegheil believed Hayward was then at the next intersection east, that of Richmond and Widmer. Indeed, she testified to not seeing Hayward that evening until she and Thorpe drove to Richmond and Widmer, about 20 minutes after Thorpe's exchange with the defendant. In re-examination, VanVegheil was taken to a notebook entry she made the same evening in which she recorded Thorpe advising Hayward of the incident with the defendant when he and three other officers attended at Richmond and Peter. While not doubting the accuracy of her notes, she had no recall of this occurrence through her evidence. Indeed, she testified otherwise.

[38] Sgt. Mark Hayward attended at the intersection of Richmond and Peter with his bike team following Thorpe's radio call. VanVegheil and Thorpe were then the only other officers present. Thorpe told Hayward of threatening comments made by two of four males, including the defendant, who he described along with the others. The four young men had since headed east on Richmond. Hayward recalled Thorpe telling him about the racial slur he heard; he acknowledged that it could not ground a criminal charge. He and Thorpe did not discuss any potential charges arising from the exchange at Richmond and Peter. He believed, however, that he had grounds to arrest for threatening bodily harm and mischief to property. He had no basis, he said, to believe that the defendant or any of his associates were involved in the G20 events.

[38] Sgt. Mark Hayward attended at the intersection of Richmond and Peter with his bike team following Thorpe's radio call. VanVegheil and Thorpe were then the only other officers present. Thorpe told Hayward of threatening comments made by two of four males, including the defendant, who he described along with the others. The four young men had since headed east on Richmond. Hayward recalled Thorpe telling him about the racial slur he heard; he acknowledged that it could not ground a criminal charge. He and Thorpe did not discuss any potential charges arising from the exchange at Richmond and Peter. He believed, however, that he had grounds to arrest for threatening bodily harm and mischief to property. He had no basis, he said, to believe that the defendant or any of his associates were involved in the G20 events.

[39] Hayward shared this information with the four other members of his crew: PCs O'Neil, Chouryguine, Manserra and Cameron. All five then biked down Richmond in pursuit of the defendant and his associates. When he reached Widmer Street, Hayward recognized the four men described to him by Thorpe. They were in a "heated conversation" with a similar number of other young men. Hayward feared a physical altercation was imminent.

[40] Cst. Neill Cameron claimed to overhear "most" of the conversation between Thorpe and Hayward, including the opinion that two of the young men were "arrestable for cause disturbance". Descriptions, including that of the defendant, were provided. Cameron did not hear any references to threats to persons or vehicles. His assumption, as he and his colleagues biked east on Richmond, was that they were to investigate this group of young men, not arrest them. Like Hayward, he recalled seeing the defendant and three others in a "heated confrontation" with a second group of young men as he approached the corner of Richmond and Widmer on his bike. It looked, he said, as though they were "squaring off" for a fight.

[41] Cst. Dmitry Chouryguine could not hear the brief conversation between Hayward and Thorpe. Hayward subsequently provided descriptions of the four young men and their direction and advised him that all four were wanted for "cause disturbance" and "death threats". Chouryguine says he deferred to Hayward any decision as to whether the suspects would be arrested. He spotted the four men at the corner of Richmond and Peter after a 30-second bike ride. They were in a verbal altercation with another group of men and he believed that a fight was imminent.

[42] Cst. David Manserra learned about the events at Richmond and Peter from Hayward, including that S/Sgt. Thorpe had been the subject of racial slurs and threats. He was provided with descriptions of the four men who, he believed, were arrestable for threatening bodily harm and mischief to property. He biked east with his crew and almost immediately recognized the defendant and his friends. They were involved in a verbally aggressive argument with another group of men at the southwest corner of Richmond and Widmer.

(e) Act III: Altercation and Arrest

(i) Introduction

[43] In brief, the defendant says he was taken to the ground from behind by the police without warning, was severely beaten without reason, and was then arrested for offences he never committed. The police accounts are materially different. Although there are patent variations and some cross-officer inconsistencies, the core police narrative is simple enough: The police intervened with the defendant to prevent what they perceived as an inevitable dust-up with other pedestrians. The defendant resisted the police efforts and physically assaulted them while they endeavoured to affect his arrest. Given the volatility of the situation, the police were unable to express words of arrest until immediately after the defendant was physically detained.

[44] I begin with the accounts of the officers.

(ii) The Police Accounts

[45] Sgt. Hayward, like the other members of his team, was concerned that a fight might break out between the two groups of young men at Richmond and Widmer. There was some shouting and swearing, but the confrontation had not drawn a crowd; the pedestrians in the vicinity were generally walking around the two posturing groups. Hayward was sure the two groups of young men recognized the police presence as they arrived and dismounted, but it had no apparent effect on their behaviour.

[46] They were "all involved", said Hayward, but the defendant seemed a little louder and more verbal than his associates. Hayward approached him and, in a "very direct" voice, said, "Break it up, guys". The defendant, says Hayward, may have had a few drinks but he did not appear drunk. He looked at Hayward with indifference and then returned to his heated exchange with the second group of men. Hayward feared the situation might become violent. To prevent this turn of events, Hayward took the defendant by the left arm and, as he put it, "tried to gently remove him from the situation". The defendant pulled away while saying, "Fuck you". Hayward did not intend to arrest the defendant when he took him by the arm. Although unarticulated, his motives were to remove the defendant from a volatile situation and, secondly, to investigate him respecting the incident at the intersection of Richmond and Peter Streets. Hayward agreed that the defendant had the right to pull away as he was not under arrest. However, the defendant's motion and his accompanying language signalled a disturbing belligerence to Hayward.

[47] With the exception of PC O'Neil, all the officers in Hayward's bike detail immediately stepped forward to arrest the defendant. Hayward's view was partly obscured by his men, but he could see the defendant "flailing" and "struggling" as the three officers tried to "gain control" of him. The defendant was taken to the ground within a second. He was initially grounded on the sidewalk but his "final resting position" – about 30 seconds after the officers first moved in – was on his back on the roadway. PC Cameron (a patently large and very strong officer) was on top of the defendant as he was squirming and flailing. Hayward heard Cameron yell, "Let go of my arm" on several occasions. Cameron then ploughed two or three punches into the centre of the defendant face. Hayward viewed these blows as a "reasonable" distractionary application of force given the defendant's insolence and his apparent refusal to release his grip on the officer. Hayward did not see the defendant strike out or grab Cameron. His attention was divided between the defendant, the arrest of one of his associates by PC O'Neil, and other unrelated developments. There were not, in Hayward's recall, many spectators to the events surrounding the defendant's arrest.

[48] Hayward agreed that the two essential elements of a valid arrest were words of arrest and taking physical control of the person being arrested. These two elements, he suggested, are sometimes separated in time, as in the instant situation where the words of arrest were delayed until after the defendant was taken to the ground. Hayward himself did not hear any words of arrest as he left to assist another officer while the defendant was still being taken under control.

[49] The defendant had no visible injuries when Hayward first observed him at the corner of Richmond and Widmer. He had a bloody nose, consistent with the blows he had sustained, when helped to his feet in handcuffs a few minutes later. Hayward had no recall of seeing any other injuries on the defendant or any of his officers. Shown photographs of the defendant taken within a day of the incident, Cameron could offer no explanation for apparent injuries to the top of the defendant's head. He identified images of redness and scraping on the left side of the defendant's face as "road rash" consistent with that portion of his body having come into contact with concrete or pavement.

[50] Hayward's account of the initial stages of the dynamic at the corner of Richmond and Widmer is mirrored in the testimony of all three of the officers in his bike detail who were involved in the defendant's take-down: Given the physical descriptions provided by Thorpe, the defendant was immediately recognizable as the officers' bikes approached Widmer. Like Hayward, they feared the defendant and his friends might come to blows with members of the second group of young men. Some officers spoke of other pedestrians stopping to watch the heated argument while others, like Cameron, had no recall of the confrontation (or even the subsequent altercation with the police) having any effect on anyone in the area. Hayward's attempt to intervene by taking the defendant's arm was met by a pulling away and a profane rebuke. PC Cameron and other officers then immediately and physically responded. There is some divergence in the officers' accounts of their intervention, as detailed below.

[51] Cst. Cameron agreed that the defendant expressed no threatening words or gestures. Nonetheless, Cameron construed his conduct as demonstrating an assaultive demeanour. As soon as the defendant shrugged off Hayward, "immediately", as he put it, "myself, PC Manserra and PC Chouryguine go to arrest him". He wanted to contain a situation he feared would develop into a physical altercation. He intended to place the defendant under arrest, but the defendant, as put by Cameron, "began to struggle", to "pull away" and "resist arrest". Cameron took the defendant to the ground as soon as he began to resist the police intervention. He explained that he believed the defendant was arrestable for causing a disturbance at the intersection of Richmond and Peter and for assault with intent to resist arrest as a result of the manner in which he had just pulled away from Hayward.

[52] Cameron could not recall in chief how the defendant was grounded. In cross-examination he allowed that he grabbed the defendant, perhaps in a bear-hug, before taking him to the street. He was sure the defendant landed on his back and that he was never face down before being fully restrained by the police. Cameron could not recall his own exact position, other than that he was likely kneeling. He could not shake off the defendant's grasp on a portion of his left arm just above the wrist, nor did the defendant comply with his repeated demands that he let go of his arm. Cameron rejected the suggestion that the defendant's grip was a "knee jerk reaction". He did allow for the possibility, if no higher, that the defendant was protecting himself, and agreed that the defendant did not punch or lash out at him. Cameron is right-handed. Using that hand, he struck four or five "distractionary" blows to the eyes and nose area of the defendant's face, stopping only when the defendant finally released his grip and ceased struggling. Cameron did not otherwise strike the defendant, nor did any other officer.

[53] Other than some redness to the defendant's face, there were no visible injuries. Nor did Cameron see any blood. He made no note of any injuries in his notebook. Cameron explained that he employed no more physical force than was necessary to secure his objective of affecting the defendant's release of his arm. He estimated that three and five minutes passed between the time Hayward first approached the defendant and the time the defendant relaxed his grip. Of this period, the defendant was standing for less than one minute.

[54] Cameron rolled the defendant onto his chest to allow another officer to cuff the defendant from behind. Only then was the defendant told that he was under arrest. He first could not recall which officer uttered the words of arrest or placed cuffs on the defendant. He was sure, however, that plastic "quick" or "flex" cuffs (which Cameron viewed as more flexible and comfortable) were employed as the use of steel or metal cuffs would, given his girth, have dislocated the defendant's shoulders. The flex cuffs, he recalled, were borrowed from Emergency Task Force personnel who were in the area.

[55] Cameron later recalled that he placed the defendant "under arrest" at 3:25am for assaulting the police and causing a disturbance. Cameron read him his rights to counsel at 3:27am. Asked if he wanted to call a lawyer, the defendant replied, "This is bullshit". Cameron remained with the defendant until he was placed into a police wagon for transport to 52 Division at 4:11am. The defendant, he says, never complained about any pain associated with his restraints.

[56] Cameron was later directed by a superior officer to prepare a "Use of Force Report" regarding the events at Richmond and Widmer. He admitted, in the course of his direct examination, to making a number of errors in completing the form which had the effect of minimizing his use of force. In particular, he had checked-off the "soft" option respecting the use of his hands when, given the nature of his blows, he should properly have ticked the "hard" box. Cameron testified on November 23, 2011 to last seeing the Report when he submitted it before going off shift on July 11, 2010. He had not discussed the Report with anyone since that date. Nor, more specifically, did he recall discussing the Use of Force Report with Det. Jason Shankaran in October 2011 in anticipation of his testifying, nor of being advised to educate himself about TPS rules governing the use of force. Cameron's evidence in these latter regards was contradicted by Det. Shankaran, the officer in charge of the case and, as such, the instructing officer who sat in court throughout the trial. Shankaran testified to showing Cameron his own Use of Force Report in the courtroom hallway on October 27, 2011 as he, Cameron, waited to be called as a witness. Shankaran instructed Cameron to familiarize himself with the Report and with TPS protocols respecting the use of force. Cameron looked at the Report during this meeting and they discussed it for approximately five minutes. On witnessing Cameron later deny under oath ever seeing the Report since filing it on July 11, 2010, Shankaran drafted a "will-say" respecting the matter. It was subsequently disclosed to the defence. Shankaran was called as a defence witness at the close of the Crown's case and reported the events I have just summarized. The Crown had no questions of the officer nor otherwise made any effort to discredit him or his testimony. In conducting himself as he did, Det. Shankaran acted with commendable integrity.

[57] Cst. Chouryguine's recall was that he and Cameron intervened to prevent a potential fight, tackling the defendant and quickly taking him to the ground. While all three were down, the defendant grabbed and refused to release Cameron's arm. He also kicked Chouryguine on the leg on more than one occasion. Cameron punched the defendant several times in the face, which effectively immobilized him. After rolling him onto his front, the two officers had difficulty cuffing the defendant with conventional steel cuffs. Eventually flex cuffs were located and used to restrain the defendant.

[58] Chouryguine says Cameron was the officer who arrested the defendant, although he could not recall the words of arrest. This occurred after the defendant had been restrained.

[59] Chouryguine noticed that the defendant had a bloody nose while they waited for a police wagon. He recalled no other injuries, and certainly no sign of those that appear in photographs taken of the defendant following his release the next day. He did recall that the defendant's stomach and chest made contact with the pavement during his struggle with the arresting officers. The defendant, he says, was "fairly intoxicated": his speech was slurred and his eyes were bloodshot.

[60] Cst. Manserra saw a couple of officers in his team move in and take the defendant to the ground after he pulled away from Hayward. As he was kicking and flailing, Manserra added his weight to help restrain the defendant. Manserra heard Cameron yell, "Let go of my arm". He did not see Cameron physically respond to the defendant's grip. Once the defendant was cuffed, Manserra left to assist with another arrest. He did not see the defendant being cuffed. He did not hear any words of arrest. He did not see any officer strike the defendant. He did not see any injuries on the defendant.

[61] S/Sgt. Thorpe and Sgt. VanVegheil drove to Richmond and Widmer about 10 to 20 minutes after the incident at Richmond and Peter. Thorpe says he identified the defendant at the latter intersection, but never got closer than 10 to 15 feet from the man. Neither he nor VanVegheil noticed any signs of injury on the defendant.

(iii) The Defendant's Account

[62] The defendant denied being involved in a confrontation when he says he was suddenly grabbed from behind about, on his recall, 20 to 30 feet west of Widmer on the south side of Richmond. He could not recall Sgt. Hayward intervening at any point, nor any officer commanding him to "break it up". He heard no words of arrest or detention before or during the assault he described enduring.

[63] The defendant says he was quickly taken to the ground, first to his knees and then onto his stomach. He was repeatedly pummelled and, after about 30 to 45 seconds, rolled onto his back, cuffed from behind with plastic "flex cuffs" and helped into a sitting position. Only then did he realize that his assailants were police officers. Until then, he testified, he had no idea there were police in the vicinity. While facedown, the left side of his face was pushed into the pavement, his hands were forced behind him, and he was punched and kicked from both sides. Although he was squirming and trying to free himself by rolling around, he could not liberate his hands to even protect himself let alone grab any of those attacking him. Nor was he flailing his arms as they were quickly pulled behind his back. While his feet may have made incidental contact with an officer, he was not trying to kick anyone. No officer, in his recall, told him to "let go of my arm" or "stop resisting". The defendant claimed a "fine recollection" of the details of the altercation.

[64] It was only after he was cuffed and sitting on the sidewalk that the defendant first learned that he was arrested. He could not recall being told the charge or being given his rights to counsel before being taken to the station. The flex cuffs were very painful, especially because of the unremitting pressure they exerted on his shoulders. He was angry, upset and hurt and very loud and vocal in expressing these emotions. Again, he endured sarcastic comments from the police, including one officer saying the OSPCA had been called to deal with a "beached whale on the road". The defendant had blood on his face and (as some officers confirmed) was treated by a medic in the approximately half-hour he waited before being transported to 52 Division. He says his repeated requests to loosen or replace his flex cuffs were ignored.

(f) Epilogue

(i) Introduction

[65] The defendant answered various questions while paraded at 52 Division. No issue is taken as to the voluntariness of the defendant's statements to the police. He was then searched, placed in a cell and later transported to a hospital to address his injuries. The defendant was released on bail the next day. Hours later a friend photographed the defendant's visible injuries. Without conceding the source of these injuries, Crown counsel does not challenge the accuracy or integrity of the photos.

[66] To the limited extent that the exchange during the defendant's booking and his injuries are relevant to a determination of the defendant's charges on the merits, I address them below.

(ii) The Booking at 52 Division

[67] The defendant's booking at 52 Division was videotaped. He appears coherent, responsive and polite throughout the booking procedure. Asked if he knows why he is at the police station, the defendant answers, "Not particularly. No". Asked if he has any "medical conditions", the defendant rhymes off diabetes and high blood pressure. When prompted with the question, "Anything else?", he adds a concern about an unfilled drug prescription. He says nothing about his treatment by the police or of suffering any injuries. Asked about his alcohol consumption, he indicates that he is "somewhat intoxicated". Asked to quantify, he responds, "more than I'm supposed to". The defendant is removed for a Level 3 (strip) search, briefly returned to the booking room and then escorted to a cell. The officers share crude jokes, captured on video, about the defendant's obesity after he leaves the booking room. Many hours later, at 4:37pm, the defendant is rushed through the booking room on his way to the Toronto General Hospital (TGH) to "look after his injuries". He next appears on the booking room video as he is returned from the hospital nearly eight hours later.

(iii) The Defendant's Injuries

[68] The defendant says his shoulder pain was excruciating while in the police van. The officers transporting him to 52 Division responded to his pleas by cutting off the flex cuffs while they waited in the sallyport. The defendant assumed he was being thrown into a drunk-tank and would be released in the morning; he was shocked to learn he was being charged. He did not complain about his treatment by the police since the pain of the cuffs had been relieved, he did not think there was anything the booking officer would do and, in any event, he believed the injuries to his face were obvious. His primary concern at that stage, he explained, was to retrieve his driver's license as his employment depended on it.

[69] The defendant appears to have been examined at the TGH sometime after 10pm on July 12, 2010. The clinical assessment reports "soft tissue swelling … in the right parietal scalp and … significant soft tissue swelling … about the left aspect of the face and periorbital region". In addition, the defendant suffered "a minimally displaced nasal bone fracture". The general "impression" was of "soft tissue injury to the left face [without] facial bone fractures".

[70] The photographs taken after the defendant was released on bail on July 13th appear consistent with this clinical assessment. They display a black and almost swollen shut left eye, abrasions on the temple that extend to the defendant's left ear, further abrasions on the top or crown of his head, a small cut or scratch on the left side of his nasal passage, and blood stains on the front of the defendant's jeans. According to the defendant, the injuries he suffered numbed any feeling in his right thumb for about 30 days and left his face swollen and tender for a couple of weeks.

C. Analysis

(a) Introduction

[71] Although not a classic he-say/she-say scenario, the direct and salient contradictions between the evidence of the defendant and that proffered through the police witnesses mandates a close analysis of the credibility – in the sense of both honesty and reliability – of those involved in the events that here give rise to the allegations of criminal conduct.

[72] This exercise is inevitably grounded in the logic of R. v. W.(D.) and, in particular, its central instruction that even disbelief of an accused's evidence does not shift or satisfy the persuasive burden which, throughout, remains on the Crown. Earlier this year, in R. v. Myrtaj, at paras. 31-32, I rather compendiously set out what I view as the principles governing the assessment of credibility in criminal cases such as the one now before me. After adverting to R. v. W.(D.), I went on to note that,

As explained by the [Supreme] Court in R. v. J.H.S., W.(D.) "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". (See also, R. v. C.L.Y., at para. 8.) Put otherwise, even where a case presents as a bald contest of credibility, the adjudicative focus must remain fixed on the standard of reasonable doubt. (See, for example, R. v. Avetysan, esp. at paras. 20-2; R. v. Minuskin, at 550; R. v. Rattray.) Further, the W.(D.) formulation applies not only to the resolution of directly conflicting evidence between an accused and a complainant but, as said in R. v. B.D., at para. 114, to "credibility findings … arising out of evidence favourable to the defence in the Crown's case". (See, also, R. v. Robinson, at para. 35.)

Like any trier of fact I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S., at para. 10; R. v. Francois, at para. 14; R. v. M.R., at para. 6; R. v. Abdallah, at paras. 4-5. I can, again with reason, also accord different weight to different parts of the evidence that I do accept: R. v. Howe, at para. 44. Further, where, as here, a defendant has testified, his evidence – like that of any witness – cannot be assessed in a vacuum. As said by Code J. in R. v. Humphrey, at para. 152, "the first and second stages of the W.(D.) framework for analysis can only be undertaken by weighing the accused's evidence together with the conflicting Crown evidence". (See, also, R. v. Newton, at para. 5; R. v. Hull, at para. 5; and R. v. Snider, at para. 37; R. v. Hoohing, at para. 15.)

[73] I begin my analysis of the specific charges with the two allegations of threatening arising from the incident at the intersection of Richmond and Peter Streets. I then address the assault and cause disturbance charges laid as a result of the altercation at Richmond and Widmer.

(b) The Events at Richmond and Peter

(i) Introduction

[74] S/Sgt. Thorpe and Sgt. VanVegheil testified to hearing the defendant express utterances which, the Crown contends, prove the occurrence of the two threatening offences charged: first, that of threatening "to burn real property … to wit: police vehicles" and, second, threatening to "cause serious bodily harm" to S/Sgt. Thorpe. The defendant denies saying words that amounted to threats in law. While the sentiments may be as morally reprehensible, he says that his comments referenced past events rather than threatened future menace and, accordingly, fall outside the compass of the criminally prohibited conduct with which he is charged.

[75] Although of general application, the principles set out in W.(D.) are particularly germane to the proper disposition of the two threatening charges. While physical gestures or mechanical contrivances may sometimes satisfy the necessary physical element, in many cases, as the one before me, the offence of uttering threats requires close if not granular scrutiny of the words expressed by an accused person. On the narrow fact pattern presented here, I must acquit the defendant if I believe his account of the utterances he made within Thorpe's and VanVegheil's hearing. If I do not accept the defendant's evidence, I must still acquit him if I am left in doubt as to whether he uttered the threats to cause property damage and bodily harm. Even if I positively and entirely reject the defendant's testimonial recall of his words, the police officers' evidence must still satisfy me to the requisite standard that the defendant uttered words amounting to threats in law before I can find him guilty of these two offences.

[76] I soon turn to the resolution of these credibility issues. I intend first to address two independent matters, both of which arise from the particularization of the threatening counts. The initial concern affects only the charge of threatening damage to property and requires some attention to the proper statutory construction of the charging provision. The second issue relates to the second count, that of threatening to cause bodily harm to S/Sgt. Thorpe.

(ii) Threats to Damage Property

[77] The first count on which the defendant was arraigned is that of threatening "to burn real property". Section 264.1(1)(b) of the Criminal Code makes it an offence to "burn, destroy or damage real or personal property". The Crown has here particularized the object of the alleged threat as "real property" and the threatened manner by which this harm is to be achieved as by way of "burn"-ing. Consistent with further particularization in the first count and the evidence of both police officers, the defendant's threats were directed to "police vehicles".

[78] A fundamental division in the law of property, as reflected in the language of s. 264.1(1)(b), is that drawn between "real property" and "personal property". The former generally refers to realty in the sense of land or real estate and to buildings or other structures permanently affixed to the ground. On the other hand, personal property embraces intangibles and those things that are portable or mobile or capable of being moved in the ordinary course ("chattel" in the language of property law).

[79] Police vehicles are not "real property"; their very function is to afford mobility. Does this make any difference to the validity of the threat-to-property offence? In answering this question regard may be had to s. 2(a) of the Code which defines the word "property", in part, as "real and personal property of every description". Had Parliament not considered the distinction between the two classes of property significant there would have been no need to statutorily advert to both "real" and "personal" property in s. 264.1(1)(b); the word "property" simpliciter would have sufficed as that word, through the definitional provision in s. 2, encompasses all types of property. In short, I construe the distinction between fundamental genera of property drawn in s. 264.1(1)(b) as meaningful rather than as a legislated redundancy; the reference to one category does not include the other. Accordingly: having pled a threat to only "real property", having led evidence of threats to only "personal property", and having at no time sought an amendment to conform the pleadings to such evidence, the Crown has simply failed to lead any evidence of a threat to burn "real property". As a result, I find the defendant not guilty of this count.

(iii) Threats to Cause Bodily Harm to S/Sgt. Thorpe

[80] As particularized in the second count, the defendant is charged that he "did by word of mouth knowingly utter a threat to Gregory Joseph Thorpe to cause serious bodily harm to Gregory Joseph Thorpe". The key question then is whether I am satisfied beyond reasonable doubt that the defendant uttered words that, in law, amount to a serious threat to cause bodily harm to S/Sgt. Thorpe? Accepting, for the sake of this analysis only, that the defendant did say every word attributed to him by Thorpe and VanVegheil, I am still left with a doubt whether the impugned words legally constitute the threat charged.

[81] I begin by observing that the racially charged comments attributed to the defendant, no matter how blatantly offensive, are not in themselves threats. This leaves two sets of phrases to scrutinize. The first consists of the words: "Go get 'em you G20 fucks. We'll get you next time. Wahoo. We'll burn your police cars again and fuck you up". The evidence of both Thorpe and VanVegheil is that these words were directed to the officers on bikes as they rode through the intersection. Assuming they were said and assuming that "We'll … fuck you up" reflects the expression of an intention to cause bodily harm, this threat is not directed at Thorpe and therefore cannot amount to the threat particularized in the second count.

[82] The second exchange requires closer examination. According to VanVegheil, the defendant yelled "You nigger. You fucking nigger" at Thorpe after the officers had biked through the intersection. Thorpe has neither a notation nor testimonial recollection of these words being spoken. However, Thorpe, like VanVegheil, recalls that he instructed the defendant to calm down. The defendant then left the curb, took a few steps in Thorpe's direction and said, "We should have fucked all of you up. Next time we will and we'll [or "will" in VanVegheil's notes] burn all your fucking cars". Again assuming the defendant is accurately quoted, and accepting that his words were directed to Thorpe, do the words "We should have fucked all of you up. Next time we will …" legally constitute a threat to cause Thorpe bodily harm?

[83] It is long settled that the proper approach to charges of threatening is an objective one. As said by the Supreme Court in R. v. McGraw, at pp. 82-83:

… the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?

This construction was unanimously affirmed in R. v. Clemente where the Supreme Court, in addressing the mental element, went on to note that,

[T]he question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.

[84] In R. v. Batista, at para. 20, the Court of Appeal noted that a determination of whether the defendant's words attract criminal liability "requires a reasonable person to consider the context or circumstances in which [they were] made". Later, at paras. 24 and 26, the Court expanded on this theme:

[A] reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic.

…As the Supreme Court of Canada stated in McGraw, whether the impugned words amount to a threat is a question of law. … [T]he legal test … asks whether a reasonable person, fully informed of the circumstances, considering the matter objectively, would consider the impugned words as a threat ….

The Court went on to note that the opinion of the object of an alleged threat as to the menacing connotation of the words at issue is, as I find here, "subjective rather than objective" and, although of some evidentiary value, "different" from the "perspective of the reasonable person" that must apply in conducting the critical assessment.

[85] What is required, then, is an objective, contextual analysis. Applying the formulation in Batista, I am not satisfied to the appropriate standard that "a reasonable person, fully informed of the circumstances, considering the matter objectively, would consider the impugned words a threat" – or, at least, not a serious one – to cause bodily harm to Thorpe. I accept that the defendant was angry when he shouted across the intersection. I accept further that an expression like "fuck you up" can intimate an intention to cause bodily harm. Here, however, the purported menace is not directed to Thorpe personally or specifically but, rather, to "all of you" – meaning, I take it, the police generally. It is said only once. It is not accompanied by any hostile gestures. There is no history of animus or, indeed, any prior relationship between Thorpe and the defendant. The words are spoken in a very loud voice, at a busy street corner, and to a uniformed officer. The defendant is almost blatantly conspicuous and he makes no effort to evade detection or expedite his departure. In my view, the picture presented to the "ordinary reasonable person" by the defendant as he spoke the impugned words was that of a loud-mouthed, likely intoxicated buffoon shooting off his mouth with much more bravado than substance. Put otherwise, the reasonable person – "dispassionate, practical and realistic", as said in Batista – would not take the defendant's oafish braggadocio seriously.

[86] The essential elements of the offence are succinctly set out in Batista, supra, at para. 18 (emphasis added): "First, the Crown must establish that the [defendant] made a threat to cause [bodily harm]; and second, that he made the threat knowing that it would be taken seriously". Approaching these issues objectively and upon consideration of the constellation of circumstances I have just recited, I am left with substantial doubt that the "ordinary reasonable person" would conclude that the defendant "made the threat knowing that it would be taken seriously". Accordingly, the defendant is also found not guilty of this second count.

(iv) Credibility: What Did the Defendant Actually Say?

[87] To this point I have approached the validity of the threatening charges on the footing that the defendant spoke the words attributed to him by officers Thorpe and VanVegheil. Independent of the determinations I have already reached respecting these two first counts, I now return to the question of whether the Crown has in fact established that the defendant uttered the words advanced as evidence of the charged threatening behaviour.

[88] The defendant denied uttering any threats, towards the officer on bikes, towards police vehicles or towards Thorpe. Yes, he says, he swore at the police, called them "fucking assholes" and made sarcastic comments about the police conduct during the G20 Summit. What he did not do, he says, is threaten any future menace to any officer or any police property. The defendant says he made notes of the events along Richmond within 36 hours of their occurrence and while the incidents were still fresh in him mind, and that he is confident of his recall.

[89] I do not share the defendant's confidence. To be clear, I do not conclude that he has consciously lied about or fabricated his account of the events at issue or, in particular, the words exchanged with Thorpe. I simply do not believe that the defendant is a reliable reporter of these events. In so concluding, I do not extend any generally compromising effect to his unthinking reference to watching a Leafs game in mid-July; I am prepared to accept this account as an immaterial factual error that does not taint the entirety of the defendant's testimony. I am much more concerned, however, about the defendant's consumption of alcohol.

[90] The defendant resisted Crown counsel's repeated efforts to push him beyond his estimates of the amount of alcohol he imbibed. Nonetheless, he testified to having consumed between seven and nine drinks in the hours preceding his confrontation with Thorpe. He claimed to be coherent and aware at that point, and yet conceded, without hesitation, that he was intoxicated and that his level of alcohol consumption adversely affected his judgement and his memory. I accept these latter self-assessments. They are consistent with the defendant's estimate of his alcohol intake and his limited drinking experience, which I also accept. They are also consistent with the evidence of at least one police officer, PC Chouryguine, who (unlike Thorpe) was in very close physical contact with the defendant and who described him as "fairly intoxicated" with classic indicia of slurred speech and bloodshot eyes. While not necessarily out of control, I do infer that the defendant's behaviour at Peter and Richmond was out-of-character, fuelled as it was by the excessive alcohol that accompanied the celebration of his birthday. In that state, the defendant's normal, circumspect articulateness, as displayed throughout his testimony, gave way to something more primal and unguarded. I doubt that he fully understood what he was saying at the time. I doubt even more strongly that he could recall his precise words – and, in particular, that absolutely none of them conveyed a threatening message – many hours after a serious physical altercation, a trip to the hospital and at least some return to sobriety, let alone after almost two years when, finally, he had the opportunity to testify as to the exact content of his comments in the early hours of July 11, 2010.

[91] I do not, in short, accept the defendant's evidence as to the words he shouted at the police officers, including S/Sgt. Thorpe, at Richmond and Peter. Nor does his account alone leave me with a reasonable doubt respecting the allegations that he uttered threats. Although not legally necessary, I note that none of the defendant's evidence as to the words he spoke is confirmed. More importantly, his anger, aggression and the inevitable and conceded impact of alcohol consumption on his cognitive and memory functions simply renders his account of the words spoken and unspoken too unreliable to inspire either confidence or reasonable doubt. I find equally unreliable, particularly in the face the officers' denials, the defendant's allegation that Thorpe lampooned his obesity across the intersection of Richmond and Peter.

[92] The remaining question, then, is whether Thorpe's and VanVegheil's accounts of the defendant's comments make out the threats charged to the requisite degree of proof. Unlike the defendant's situation, the evidence of both Thorpe and VanVegheil is confirmed – by, of course, each other. However, in my view this affords little comfort in the instant case.

[93] The words said to amount to legal threats are spoken rather than, as in at least some analogous cases, written, texted or stored on a voice mail system. Their expression here is ephemeral. The only record of these words, other than the defendant's unreliable recall, is that tendered through Thorpe and VanVegheil. The words themselves are crucial to a determination of whether the defendant expressed threats and the seriousness with which they were uttered. In the case of the first count, the critical words, and the only ones attributed to the defendant that may be construed as a threat to damage property, are: "We'll burn your police cars again" and "Next time we'll burn all your fucking cars". The gravamen of the second count, the alleged threat to cause bodily harm to Thorpe, rests on a single vocal iteration said to be directed to that officer: "We should have fucked all of you up. Next time we will".

[94] Whatever the defendant actually said, his words, while shouted, were delivered across what the police were almost at pains to describe as the busiest intersection in the entertainment district at the rowdiest time of the evening. Indeed, the scene appears to have been so noisy that not a single one of the officers who biked through the intersection as the defendant hurled repeated insults, and perhaps threats, at them could, when testifying, recall hearing any of the allegedly offensive remarks. Yet Thorpe and VanVegheil, who were further from the defendant than the bike officers, and who were charged with and endeavouring to maintain some semblance of order in the near-chaos that descends at closing time, claimed to hear and remember every word yelled at the bike-mounted officers and, a minute or two later, at Thorpe. Further, they were, each says, able to independently record these offensive words approximately a half-hour later and recall them, as recorded, a year and a half after that when testifying at the defendant's trial.

[95] As I have earlier noted, both officers' accounts of the words attributed to the defendant and "independently" recorded are completely verbatim. Thorpe denies collaborating on or even discussing the defendant's words with VanVegheil as the two officers prepared their notes while seated in a police scout. VanVegheil's recall is somewhat more elastic, as she first recalled discussing the specifics of the defendant's language with Thorpe and, later, suggested that their discussion was solely of a general nature and that she, in fact, did not complete her notes, including some of the quotes attributed to the defendant, until sometime later when she had returned to the station.

[96] In the end, I find that VanVegheil is simply not a reliable witness to the events that evening. I do not for a second believe that she was trying to consciously fix her evidence or unfairly secure a conviction, but I simply find her memory defective and, accordingly, her testimony less than creditworthy. Her waffling on the process by which she captured and recorded the defendant's comments is unsettling. More telling is her unqualified recall that she did not see Sgt. Hayward and his bike crew until she and Thorpe attended at Richmond and Widmer some 20 minutes after the incident at Peter Street. This recall directly contradicts the evidence of Thorpe, Hayward and all the other bike officers who testified on this matter. It is also contrary to her own notes of the incident. Where I do agree with Sgt. VanVegheil is in the sense of "surprise" she expressed in learning during her cross-examination that her recording of the defendant's utterances was identical to Thorpe's.

[97] In Schaeffer v. Wood, the Court of Appeal had recent occasion to address the importance of police notes and, in particular, their independent preparation. As Sharpe, J.A., writing for the Court, commented, at paras. 69-70 (emphasis added):

Reliable independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice. …

The police officer's notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to the reliability and integrity of the officer's evidence that the notes used record the officer's own independent recollection. In R. v. Green, Malloy J. stated:

An officer's notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best. If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing" his or her own memory with observations made by someone else. In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else written into the notes without attribution.

Thorpe's and VanVegheil's notes of the utterances attributed to the defendant, and their testimony founded on those notes, fails to meet this essential standard of "independent recollection".

[98] However experienced these two officers, I find it impossible to accept the suggestion that their independent recall of the offensive ravings of the defendant during the course of the near mayhem that characterizes closing time in the entertainment district could generate sequentially verbatim written accounts. Either one officer copied the work product of the other or their notes are the result of or shared recall or, perhaps, careful collaboration. I do not need to decide which of these alternatives, or any other possibility, explains the textual identity of their written recordings. Given the nature of the allegations and the very few words on which to found a determination of the threatening charges, the virtue of independent recollection is plainly evident. Failing satisfaction of that condition, I simply cannot rely on the testimony of Thorpe or VanVegheil to conclude that the defendant is culpable of either charge of threatening. Accordingly, and on this clearly alternative basis, I am left with a reasonable doubt as to whether the threats attributed to the defendant were ever actually uttered. The defendant is thus found not guilty of the counts of threatening.

(v) The "N"-Word

[99] Much evidence was led on the defendant's use or otherwise of the word "nigger". Thorpe and VanVegheil testified to the defendant several times using what is likely the most racially loaded word in North American speech. The defendant says he used a connotatively different word, "nigga", and only on one occasion. I offer very brief commentary, and only because of the considerable attention paid to this dispute during the course of the trial.

[100] First, and as Sgt. Hayward correctly observed, the word "nigger" in the context in which it is alleged to have been uttered does not constitute a criminal offence.

[101] Second, and perhaps contrary to conventional wisdom, judges do not live in hermetically sealed containers, thereby protected from the travails and insults of whatever passes for "real life". Through the late-adolescent and twenty-something children of friends, I have been exposed to devotees of hip-hop culture and, alas, their occasional cultural appropriation of the word "nigga". It makes me very uncomfortable on every hearing.

[102] Third, as I comprehend the police evidence led at this trial, the defendant's body was turned towards one of his friends on those few occasions when he is alleged to have used – in whichever form – the "N"-word. The sole exception lies in the evidence of Sgt. VanVegheil who testified to the defendant at one point yelling directly to Thorpe: "You nigger. You fucking nigger". As I have earlier commented, I have serious doubts about VanVegheil's evidence. My difficulty in relying on her recollection is especially enhanced in this instance as S/Sgt. Thorpe – the purported target of this racialized abuse – expressed no recall of this particular incident.

[103] Finally, S/Sgt. Thorpe is an accomplished officer and an impressive witness. That said, I did not realize he was of black ancestry until mid-way through his testimony when his examination began to focus on issues of race. On this point, I accept the defendant's evidence to the effect that he was not aware that Thorpe was a black man until sometime after the evening of July 11, 2010.

(c) The Events at Richmond and Widmer

(i) Introduction

[104] The defendant faces two further charges as a result of the incident at Richmond and Peter Streets: assaulting PC Cameron with intent to resist lawful arrest and, secondly, causing a disturbance at that intersection. As to the latter prosecution, the defendant's position, in brief, is that there was no disturbance in law and, even if there was, he was not reponsible for its occurrrence. As to the former charge, the defendant says his purported arrest was unlawful and, as a result, his resistance, if any, to the police efforts to apprehend him were perfectly justifiable. Again there are direct contradictions between the testimony of the defendant and that tendered through, in this case, four different officers. I begin with the charge of cause disturbance.

(ii) Cause Disturbance

[105] Pursuant to s. 175(1)(a)(i) of the Code, the defendant is charged with causing a disturbance in or near a public place by "fighting and screaming and shouting and swearing". The place particularized in the Information is "Richmond Street West and Widmer Street" – not Richmond and Peter. It is not disputed that this municipal location is a "public place".

[106] Other than the defendant's vain efforts to free himself after being tackled by the police, there does not appear to have been any "fighting". Undoubtedly there was some "screaming and shouting and swearing", although the evidence of the police is mixed as to whether any public attention, let alone disturbance, followed, with most suggesting that pedestrians stepped around the commotion and that the occurrence was, regrettably, fairly run-of-the-mill given the place and time. Although arising in a very different legal arena, there is some value in recalling then Justice Lamer's sage observation on behalf of the Supreme Court in Descoteaux et al. v. Mierzwinski and A.-G. Que. et al., at 410-411, that, "[o]ne does not enter a church in the same way as a lion's den, or a warehouse in the same way as a lawyer's office". Similarly, public tolerance for what some might define as potentially disturbing behaviour – such as shouting and swearing – is undoubtedly much broader at closing hour in an entertainment district than is likely at many other times and venues. Put otherwise, a charge of cause disturbance invites a contextual analysis.

[107] The Supreme Court endorsed exactly this approach some two decades ago. In R. v. Lohnes, at 296, McLachlin J., as she then was, concluded for the Court that,

[T]he weight of the authority, whether viewed from the point of view of theory or result, suggests that before an offence can arise under s. 175(1) of the Criminal Code, the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question. [Emphasis added.]

In R. v. Swinkels, at para. 11, the Court of Appeal explained that, "the ordinary and customary use of public space is dependent in part on the time and way in which the place is used".

[108] The facts in Swinkels are very close to those in the case before me: a mid-summer closing hour in an entertainment district centred on a Richmond Street (although in London rather than Toronto) as the appellant's obscene and offensive carryings-on drew a small crowd outside a bar. The following portion of LaForme J.A.'s majority opinion (paras. 24-25 and 28-29) conveys the factual similarities and the Court's rationale for ultimately allowing the appeal and entering an acquittal:

The "packed" and noisy streets of downtown London, just after the closing of the bars forms the context against which the disruptiveness of the appellant's conduct must be measured. The "nature of the peace" that could be expected at this time and place is not the same as what one would expect in the library, or at the super market. While Mr. Swinkels' behaviour was loud and raucous, its "disruptiveness" is dependent on the surroundings.

In this context, and based on the evidence noted above, it appears unlikely that the presence of a crowd around or near Mr. Swinkels was a disturbance, as contemplated by Lohnes.

I agree with the holding in Osbourne that a "public disturbance" requires more than a crowd observing – or even shouting anti-police sentiments at – police officers in the course of arrest. In the words of the trial judge in that case, at para. 21:

[T]he law is clear that yelling and swearing in a public place is not in itself a criminal offence. Equally, the existence of emotional disturbance, such as [a witness officer's] belief that the defendant's language was vulgar. aggressive and inappropriate, is insufficient to establish a disturbance within section 175(1)(a).

This is consistent with the appellate jurisprudence: in order to satisfy the actus reus of causing a public disturbance by using obscene language, the offending language must cause an externally manifested disturbance. That is not the evidence here. In the words of the only two witnesses, the "large group of onlookers" congregated only after the police had begun to effect the arrest.

[109] Similarly here, the evidence of events at Richmond and Widmer, especially those in advance of the physical intervention by the police, is not such as to persuade me that the defendant's conduct "cause[d] an externally manifested disturbance" and certainly not one that "constitutes an interference with the ordinary and customary use by the public of the place in question" at that time. Accordingly, upon application of Lohnes and Swinkels I find the defendant not guilty of the charge of causing a disturbance.

(iii) Assault Resist Arrest

[110] As earlier canvassed, the defendant's evidence is that he was, in effect, minding his own business when he was tackled from behind. He did not realize that his assailants were police officers until after he was cuffed and pulled to a seated position. According to all four police officers who participated in his apprehension at Richmond and Widmer, the defendant could not have failed to appreciate that Sgt. Hayward was a policeman. I have already expressed my concerns about the reliability of the defendant's account. In any event, I am of the view that the primary legal issues here pertain to the lawfulness of the defendant's arrest and, in this regard, I need go no further than the evidence of the attending police officers to properly determine the matter.

[111] Those accounts, although not entirely consistent, share a number of common themes. All four officers had returned to Richmond and Peter when summoned by Thorpe. They learned there, directly or indirectly, that a number of young men, each of whom was described, had made comments that afforded grounds for the arrest of at least a couple of them for threatening and cause disturbance. Their intention, however, was to investigate the targets identified by Thorpe, not arrest them.

[112] As directed, the officers biked east on Richmond and almost immediately spotted the described men in an animated exchange with a group of other young men. The officers feared an imminent physical altercation. However, prior to the police intervention there was no altercation. Indeed, none of the officers testify to any show or threats of force, or aggressive gestures, or raised arms or fists, or even threatening words. What the police uniformly observed was not a fight but a heated argument.

[113] Sgt. Hayward, on his own account and those of the other officers, pursued a preventative strategy. He took the defendant's arm and tried to remove him from the confrontation. He was rewarded with a shrug and an obscene rebuke. Hayward is clear that he was not trying to arrest the defendant. He is also clear that as the defendant was not under arrest he was free to pull away from him. I agree with Hayward's legal analysis. Certain other officers in Hayward's crew appear to have had a different opinion. In my view, they erred.

[114] Sgt. Hayward was the senior officer on the scene. As PC Chouryguine testified, any arrest decisions founded on the information provided by Thorpe were properly to be deferred to him. He had not arrested the defendant when he touched his arm; he did not then intend to; he uttered no words of arrest; and he never instructed any of his officers to arrest the defendant. It is important to note that, with rare exception, the entire scope of police powers to arrest a person without a warrant is set out in s. 495 of the Code. Said otherwise, a warrantless police arrest will only be lawful if it finds purchase in one of the powers expressly granted the police in s. 495.

[115] Technically, Hayward's touching of the defendant amounted to an assault justifying the defendant's physical rebuff. However, as I read the evidence, PC Cameron treated that rebuff as an affront to the police and immediately tackled the defendant on the pretence of arresting him. There is no evidence that the defendant at that point was perpetrating any offence: he was not engaged in any assaultive contact with those on the other side of the verbal argument; he had not raised his fist or uttered belligerent words; he was not causing a disturbance; and he had certainly not assaulted Hayward. Having not actually witnessed any criminal offences, there was no lawful basis, as afforded by s. 495(1)(a), for Cameron or the other officers to arrest the defendant as "a person who has committed an indictable offence": R. v. Klimchuk. Nor was an arrest authorized under s. 495(1)(b) as the defendant was not "a person whom [the officers] finds committing a criminal offence".

[116] Further, I see no "reasonable grounds", as required for the lawful exercise of the preventative detention power provided in s. 495(1)(a), for arresting the defendant on the basis that he was "about to commit an indictable offence". The defendant's inappropriate conduct to that point had consisted solely of heated words. His pulling away from Hayward was, as that officer explained, legally justified, and he had made no effort to pursue, threaten or otherwise challenge Hayward or, for that matter, any other person. While Cameron, and perhaps his colleagues, may well have subjectively apprehended an imminent physical confrontation and ancillary criminal conduct, I find that the evidentiary record simply does not support the requisite objective foundation for an arrest founded on this platform. As recently said by the Court of Appeal in R. v. Brown, at para 14:

[T]here must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances. The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers.

See, also, R. v. Storrey, esp. at 324 (S.C.C.).

[117] Finally, I can see no lawful arrest power arising from Cameron's claim that he intended to arrest the defendant for causing a disturbance at the corner of Richmond and Peter earlier in the evening. The power extended a peace officer in s. 495(1)(a) to arrest on the basis of the officer's belief that a suspect "has committed" an offence is restricted to "indictable offences". The offence of causing a disturbance is a summary conviction offence only (see s. 175(1)); persons – like the defendant – believed, however reasonably, to have committed this offence at sometime in the past are simply not subject to arrest without a warrant, at least not on this basis.

[118] The defendant is charged with assaulting PC Cameron with intent to resist his lawful arrest. On my assessment there was no "lawful arrest". Nor were there even words of arrest until after the defendant was taken down by three police officers, repeatedly punched in the face by one of them and then rolled over and cuffed. The defendant was legally entitled to use proportionate force in response to this unwarranted attack. The comments of the Court of Appeal in R. v. Plummer, at paras. 48-49, although primarily focused on a closely related charge of assaulting an officer in the execution of his duty, are particularly apt:

Because there was no power of arrest, the arrest of the appellant was unlawful. The [summary conviction] appeal judge observed in obiter that it would have been better had the appellant submitted to the arrest and not resorted to self-help. No doubt, it would have been better, but a person is entitled to resist an unlawful arrest, even where the unlawful arrest is attempted by a police officer. …

Further, in attempting to arrest the appellant without legal authority, the officer unlawfully assaulted him. The appellant was therefore not guilty of the included offence of assault. Section 34(1) of the Criminal Code gave him the right to resist the unlawful assault by the officer provided the force used was not intended to cause death or grievous bodily harm and was no more than necessary to defend himself. There was no suggestion that the force used by the appellant in resisting the arrest was capable of depriving him of the defence in s. 34(1). A similar analysis applies to the other charge of assault with intent to resist arrest. Since the appellant was unlawfully assaulted he had a lawful right to resist the arrest.

Applying this analytical framework, I find the defendant not guilty of the charge of assaulting PC Cameron to resist his lawful arrest. Following the the same logic, the defendant is not guilty of any included offence of assault.

D. Conclusion

[119] The defendant is found not guilty of all four charges on which he was arraigned. In the result, there is no need to entertain his claims of violation of his Charter protected rights.

[120] The defendant, in the course of his testimony, expressed shame for at least some of his discreditable conduct. His acquittals properly reflect the application of the law to the facts as I have found them. They do not, however, morally vindicate his patently bad, although not unlawful, behaviour at Richmond and Peter on the night in question. I have some confidence that Mr. Howser, a man of manifest intelligence, understands this and will govern his future conduct accordingly.

Released on July 19, 2012

Justice Melvyn Green