Court File and Parties

Date: August 2, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Furlotte

Before: Justice Neil L. Kozloff

Heard: July 3 and 4, 2012

Reasons for Judgment released on: August 2, 2012

Counsel:

• E. Behar for the Crown
• P. Brauti and L. Gridin for the defendant, Christopher Furlotte

Kozloff, J.:

OVERVIEW

[1] The defendant, Christopher Furlotte (hereinafter Furlotte) is a constable with the Peel Regional Police Service. He is charged in an Information sworn October 15, 2010 that on or about the 19th day of August, 2010 he did in committing an assault upon Robert Wilson caused (sic) bodily harm to him. The essence of the allegation is that while Furlotte and his partner Brandon Strain (hereinafter Strain) were arresting Mr. Wilson (hereinafter Wilson) for public intoxication pursuant to the Liquor License Act R.S.O. 1990, c. L-19, section 31, Wilson was taken forcibly to the ground by Furlotte and suffered bodily harm. The event, which took place at the Bramalea City Centre Bus Terminal (hereinafter terminal), was captured on the video surveillance camera of a Brampton Transit bus.

[2] The Crown proceeded summarily. The Crown chose to call two eyewitnesses to the event – Peter Marchut (hereinafter Marchut) and Halima Bazger (hereinafter Bazger) – in addition to tendering (on consent) various photos and various surveillance videos including (the one referred to above as well as) one from the Brampton Transit bus driven by Maureen Holloway (hereinafter Holloway) that brought Wilson to the terminal. In addition, I was provided with an Agreed Statement of Facts and Wilson's medical records from the William Osler Health Centre, Brampton Civic Hospital Campus.

[3] The defence called Furlotte, Holloway, and Strain. In addition, I was provided with (on consent, but subject to argument regarding admissibility) the affidavits of Stan Dlugopolski and James Webb – each of whom is a police officer that has had previous dealings with Wilson – and Wilson's unredacted criminal record.

EVIDENCE

Agreed Statement of Facts

[4] At the outset, the Crown filed as Exhibit 1 a document entitled AGREED FACTS which sets out the following:

[Jurisdiction]

This incident took place on August 19, 2010, at approximately 6:30 p.m., at the bus terminal at the Bramalea City Centre, in the City of Brampton.

[Identity of the Complainant]

The identity of the complainant in this case is admitted as Robert Wilson. Mr. Wilson can be seen in the video being dealt with by the officers.

[Bodily Harm]

Mr. Wilson sustained injuries as a result of this incident that constitute bodily harm.

[Medical Records are Admissible]

Mr. Wilson's medical records will be admitted by agreement.

[Identity of the Accused and his Partner]

Mr. Wilson was arrested by two uniformed and on-duty police officers, members of the Peel Regional Police.

The officer who positioned Mr. Wilson up against the van and applied force in this case was the accused before the Court, Mr. Furlotte.

His partner that day, who was searching Mr. Wilson's bags, was Constable Brandon Strain, #3247.

[Videos are Admissible]

The videos recorded by Brampton Transit are admitted.

[Photographs]

Photographs of the complainant's injuries taken on Friday, August 20th, 2010, are admitted on consent, along with information setting out where the photographs were taken and what they depict.

Photographs of the location, of the police van used in the incident in question, and of Mr. Wilson's bags and personal items are admitted on consent, along with information setting out where the photographs were taken and what they depict.

[Mr. Wilson's Blood Alcohol Level]

A sample of Mr. Wilson's blood was taken at the William Osler Health Centre. His blood serum was tested on August 20, 2010, and at 1:37 a.m. it contained 44.6 millimetres of alcohol per litre.

Converted to mg/100ml units, Mr. Wilson's blood alcohol concentration at the time the sample was taken was 177 mg/100ml. His projected blood alcohol concentration at the time of the incident would have been between 227 and 317 mg/100ml.

Peter Marchut

[5] Marchut is a 29 year old business analyst. On August 19, 2010, he was commuting home after his work day. He arrived at the terminal at about 6:30 pm and sat down on a bench. He observed two officers in uniform (Furlotte and Strain) talking to a gentleman (Wilson) at what he estimated was a distance of twenty to twenty-five feet away from him. His view was unobstructed, albeit there were others in the area including a Brampton Transit security guard, a transit supervisor, and various commuters - a young man with a back pack and a woman (Bazger) on a bench. Marchut drew a sketch of the scene on the day following the incident, which was filed as Exhibit 2. He could not hear the conversation, which he said lasted about five minutes and appeared to him to be "relatively casual". Then he saw Wilson turn to reach for his bag and "they restrained him", grabbing hold of him and putting handcuffs on him. Wilson did not resist.

[6] The blond officer (Furlotte) searched Wilson, who from his language Marchut could tell was angry and upset. While Furlotte had the male up against the (police) van searching his person, the other officer (Strain) moved the man's bag and began to go through it. Furlotte completed his search of Wilson, who was cuffed to the rear, restraining him against the van face first by grabbing his arm. Wilson was yelling and swearing at both officers because they were going through his belongings, threatening them with lawsuits and saying "Don't touch my fucking stuff." Wilson was moving his head back and forth, yelling over both shoulders. The officers were not responding to Wilson's yelling and screaming.

[7] Marchut took a photo of the scene (Exhibit 3) with his phone immediately after Wilson was walked over to the van, which shows Furlotte apparently searching the back left pocket of Wilson's shorts while Wilson is handcuffed to the rear and leaning against the back door of the van face first. Strain is crouched down to their right at the front right corner of the van, going through his bags. Bazger is seated on a nearby bench, a security guard is standing immediately behind her, and an unknown male is walking by in the direction of the witness. Thereafter, the officers continued to search and Wilson continued to swear and move his head side to side.

[8] As Wilson turned his head to the right toward the officer on the ground, Furlotte spun him around and put him on the ground which he hit face first. Marchut described it as a "free fall with no deceleration". When Wilson hit the ground, Marchut could "hear it"; Wilson was "out of it" if not unconscious.

[9] Marchut said he saw no aggressive actions by Wilson before he was taken down. After Wilson hit the ground, Furlotte put his knee on Wilson's back, then stood up and grabbed Wilson by the shoulders, then went on his radio. Wilson was bleeding and "out of it".

[10] Marchut said he left shortly after the ambulance arrived, about ten minutes after the impact. He sent an email to the Peel Regional Police from the bus because he felt the situation was not handled very well, explaining that the man was in handcuffs, defenceless, and should not have been treated that way.

[11] Under cross-examination, Marchut acknowledged that he had described Wilson in his interview by the SIU as "verbally assaultive", explaining that Wilson was swearing, that the things he was saying were unpleasant but not threatening, and that this was after he was detained. He described the detention as "fairly routine", a "precautionary measure". He agreed that the officers were "shrugging it off" taking Wilson's verbal abuse in stride, not aggressive towards him, not unprofessional, so he was surprised when Wilson was taken to the ground. He agreed that the distance from his location to the van was about fifty feet. He could not hear anything spoken in a normal voice.

[12] Marchut agreed that he could not say whether or not Wilson flexed his muscles, and said he did not hear a growling sound before Wilson was put to the ground. He agreed that Wilson was wearing boots, but could not say if they were steel-toed. He agreed that Wilson was telling the officers repeatedly to "get your fucking hands off my stuff", to "get the fuck away from my stuff", that "those are my fucking papers", and threatening law suits, that Wilson was extremely agitated, that the officers were letting it roll off their shoulders. He said Wilson's head was not still but his body was. He said Wilson was pressed up against the van but not with a lot of force.

[13] Asked if he saw Wilson push himself off the van, he said, "No, that's not what I saw." Asked if he saw Wilson adjust his feet to gain leverage, he said "No." He did not see Furlotte adjust himself to gain leverage, nor did he see Wilson rock himself back and forth, nor did he see Furlotte pressing himself further against Wilson, nor did he see Wilson give a massive thrust back. He agreed that he was looking at their backs, and would have had a better view from the side than from the back.

[14] Marchut said he did not see Wilson drop his right shoulder towards Strain, and did not see anything which could be construed as an aggressive move by Wilson. He denied telling the SIU when interviewed on August 20, 2010 that Wilson did drop his shoulder and how the officer might have mistaken it as an aggressive move. When the pertinent portion of his interview was put to him, he said "I recall now his shoulder may have dropped and the officer may have mistaken that for an aggressive move." He agreed that Furlotte was in a better position to make that assessment, and in a better position to say what force was used by Wilson.

[15] When it was suggested to him that Wilson thrust himself at Strain, Marchut disagreed, saying he did not see that. When it was suggested to him that there was no way for him to tell what way Wilson attempted to thrust himself and what force Furlotte would have had to use to resist it, he agreed. He also agreed that Wilson was spun away from Strain who was crouched down searching Wilson's bag.

[16] Marchut said that Furlotte looked remorseful as a result of Wilson hitting the ground, and said it was possible that Furlotte may have intended to subdue Wilson but that the situation happened faster than expected. Asked if he agreed that Furlotte did not intend to cause the injuries, he said, "I agree, definitely," adding that both officers were concerned for Wilson, wasted no time checking on his well-being, immediately got on to the radio and called an ambulance within thirty seconds.

Halima Bazger

[17] Bazger is a 28 year old who works in courts administration. On August, 19, 2010, she was at the terminal waiting to take the bus home as usual after her work day. She had arrived there by bus from Yorkdale about 6:00 p.m. She sat on a bench near her stop on the platform. She had a brief interaction with a man (Wilson) who she said arrived about ten minutes after she did, and asked her the time and whether the bus had left. She described him as white, wearing a hat, and a little intoxicated, adding that the smell of alcohol was very strong from a distance of five to six feet away. She said he was a little bit drunk "from the way he was walking", describing his balance as "not normal." He was not violent or aggressive, and was not falling or stumbling. She told him that the bus hadn't come yet, and Wilson walked away. Then she saw a security guard come up from behind and speak to Wilson for a few minutes about twenty feet away from her. She could not hear their conversation but it "seemed civil, no raised voices."

[18] Bazger was looking at her GO bus map and reading her book when a police van pulled up to the curb. She said that while the officers were still in the van, the officer on the passenger side asked Wilson to come closer to speak to them. She heard Wilson raise his voice and curse the officer(s). She thought they asked for his ID and he refused, saying he had not done anything and cursing, saying "asshole" and "the f word" while the officers were still in the van. The officers got out of the van, the officer on the passenger side (Furlotte) placed Wilson against the van and handcuffed him and the officer on the driver's side (Strain) went through Wilson's bags. She could hear Wilson saying something about a law suit and that they "can't go through my bags."

[19] Bazger estimated that it was about five minutes until Wilson was handcuffed. She could not hear the officers. Wilson was struggling against being cuffed. Furlotte put his knee behind Wilson's legs to hold him against the van as he cuffed him to the rear. Wilson was struggling, moving as if to get away. He was using the "f" word which he directed at Furlotte. She said Strain was going through the man's bags on the ground about ten feet away. Wilson was yelling at Strain saying he should not go through his bags.

[20] Bazger said there was "moving ... struggling ... I think the officer wanted to turn him around. As soon as he started turning him, the male went face first to the ground." Asked how Wilson was held just before going to the ground, she said, "As he moved him ... it was with a little bit of force ... held by the handcuffs ... Because of his intoxication, I think from his own imbalance the male went with force to the ground."

[21] When her memory was refreshed by reading the pertinent portion of the transcript of her SIU interview, Bazger recalled that when Wilson was on the ground Furlotte put his knee on Wilson's back to hold him. She also recalled that earlier, when Furlotte was holding Wilson against the van, he put his knee against Wilson's leg. Asked to describe how Wilson went to the ground, she said Furlotte "wanted to move him around or put him to the ground" ... Wilson "went with force". As she said this, the witness made a clenching motion with both hands out in front of her body moving them from left to right. She said Wilson made a loud sound as he hit the ground, face first, and there was no movement. Furlotte put his knee on Wilson's back to make sure he didn't move, while Strain stood by. An ambulance was called, a transit supervisor and another police officer arrived, and then her bus arrived and she left at about 6:40 p.m.

[22] Under cross-examination, Bazger reiterated that when Wilson approached her, the odour of alcohol coming from him at a distance of five to ten feet away was very strong, and that she believed him to be drunk because he was unsteady on his feet and slurring his speech. She heard him swearing and shouting at the officers and (agreed he was) agitated before he was handcuffed. She saw him struggle as he was handcuffed and placed against the van. She agreed that the officers were calm and professional. Asked if Wilson was moving around, she said "... subject to Furlotte holding him against the van with his arm and leg", then added " trying to hold him against the van". (Emphasis added)

[23] Bazger agreed that while this was going on, Strain was going through Wilson's bag four to five feet to the right, and Wilson was yelling at Strain not to go through his stuff. Furlotte continued to remain calm, not responding. Wilson was resisting a little. She agreed that she could not tell how much force Wilson and/or Furlotte were using, nor could she tell if Wilson was tensing or flexing his muscles. Asked if she heard Wilson growl, she said "maybe" ... "not sure".

[24] Bazger said that things then happened very quickly. Wilson was taken across Furlotte's body in a semi-circular movement. She disagreed with the suggestions that Wilson started the move, and that he was pushing, and that he fell as opposed to being driven to the ground, responding that "the officer wanted him on the ground". Asked if there was a shift in weight leading to the fall, she said, "No, he went with his own weight."

[25] When asked if she recalled that Furlotte pulled Wilson away from Strain who was about four to five feet away, Bazger replied, "Ten feet." Her interview by the SIU on August 26, 2010 was then put to her, in particular page 12 lines 16-24 in which she said "maybe five feet -- four feet." She responded, "Maybe a little more." When it was suggested that Wilson began to go in the direction of Strain, she said, "No. The officer moved him toward the ground." Asked if Furlotte pulled Wilson away from Strain, she replied that it bore no relation to the officer on the ground. She agreed that Furlotte used both hands, that Wilson moved – or was moved – to the right first, and then moved – or was moved – away from Strain.

[26] Bazger agreed that Wilson's drunken state was a factor in how he fell to the ground, and that it was associated with the velocity of the fall. She was asked (again) if there was an unexpected shift in weight, and (this time) replied affirmatively. She agreed that Wilson ended up falling even though he was initially pulled by Furlotte, and that it was an accident, and that that there was no intent to injure.

[27] The portion of her SIU interview beginning at page 17 line 24 was then put to her. It will be useful to reproduce it here:

Q: Okay and then you describe him rocking a bit and moving...

A: Yeah

Q: ...and then the officer taking him to the ground.

A: Yes

Q: Do you think the officer deliberately tried to hurt him?

A: No

Q: Okay did – was the officer hanging onto him when he took him to the ground?

A: Yes. They didn't just drop him.

Q: So do you – was he

A: Yeah, they were kind of...

Q: ...trying to hold him from hitting the ground? Is that what you think?

A: But I think it was too late.

Q: Okay.

A: He couldn't have He just – I think he just slipped out of their hands too. I don't know.

Q: Okay. Okay.

A: See, I don't remember that, it's just...

Q: ...and is that why you think the part where, you know, he started to come down but then he couldn't hold him and he fell?

A: Yeah, something...

Q: It's a comb...a comb...

A: ...something like that

Q: ...are you telling us it's a combination of everything?

A: Yeah, maybe.

Bazger said that was still her recollection, adding that she could not tell if they (sic) were trying to hold him from hitting the ground, explaining that it happened too fast. She agreed with the suggestion that Furlotte couldn't hold on to Wilson as he started to fall.

Video Surveillance Tapes

[28] The next part of the Crown's case consisted of the playing of video surveillance tapes: the first from Brampton Transit bus # 0619 (Exhibit 4A), the next from the terminal itself (Exhibit 4B), and finally the one from Brampton Transit bus # 0806. The court was provided with a guide setting out a summary of the recordings with times noted (Exhibit 4D).

[29] Exhibit 4A is informed by the evidence of Holloway and I will address its contents more fully when I deal with her evidence. In summary, it shows Wilson boarding bus 0619 at or about 18:16:36, engaging with Holloway at various times when boarding, en route to and on arrival and when and after disembarking at the terminal, and otherwise (shows Wilson) during the ride. The tape ends at 18:20:00.

[30] Exhibit 4B consists of a series of clips from various vantage points at the terminal. These show the police van being driven around the terminal taken from various locations at or about between 18:31:21 and 18:31:40, Wilson at various times from at about 18:20:51 to 18:28:18 including walking along the terminal platform accompanied by a security guard between at or about 18:26:36 and 18:28:18, Wilson being brought over to the police van at or about 18:34:35 , bus 0806 approaching a terminal bus slip at or about 18:36:03, a police cruiser arriving on scene at or about 18:41:00, Wilson on the ground at or about 18:41:46, and an ambulance arriving on scene at or about 18:48:19.

[31] Exhibit 4C was recorded by the front window road view camera on board bus 0806. It shows bus 0806 pulling in to a bus slip behind the police van at or about 18:36:15, at which time Furlotte can be seen with Wilson at the van and Strain can be seen crouched down at the right front corner of the van. Wilson can be seen going to the ground at or about 18:37:43.07.

[32] Exhibit 4C is helpful, but not decisive, in determining what and particularly how things occurred on this occasion. The angle of the recording device as well as its fixed position, the distance between the recording device and the parties, the quality of the picture and decrease in quality when one attempts to zoom in, and the absence of sound, all place limitations on its utility. Having said that, it is undoubtedly of assistance in establishing when events occurred, and to an extent in assessing the eyewitness evidence including that of the defendant. (Emphasis added)

Medical Records and Photographs

[33] The Crown filed the medical records of Wilson from the William Osler Health Centre, Brampton Civic Hospital, on consent. It is not in dispute that Wilson presented with the following injuries:

• Comminuted fracture of the nasal bone with deviation of the septum to the left
• Bone fracture through the anterior and posterior walls of the right frontal sinus
• Possible undisplaced fracture of the right maxillary sinus
• Laceration to the right cheek (2 cm)
• Superficial laceration to the forehead
• Hematoma to the right side of the forehead
• Hematoma and eye swelling to both eyes ("racoon eyes" with purplish-blue eyelids)
• Neck pain, back pain, and headache

[34] The Crown also filed photographs of Wilson taken at the hospital on August 20, 2010 (Exhibit 6A-I), photographs of the two bags of personal items carried by Wilson (Exhibit 7A-I), photographs of the Bramalea City Centre bus terminal (Exhibit 8A-D), and photographs of the grey police van (Exhibit 9A-C).

Robert Wilson

[35] The Crown closed its case without having called the complainant. By way of explanation, Mr. Behar informed me that the complainant has "no memory of the incident".

Christopher Furlotte

[36] The defendant is a 30 year old police officer with the Peel Regional Police. He is a graduate of Sheridan College in Law and Security Administration, served on active duty with the Canadian Military and is still in the Canadian Forces Reserve. He became a police officer in 2008. He has no criminal record and no history of Police Services Act discipline. His work evaluations have all been positive, meeting or exceeding the standards. He is currently a field training officer.

[37] Furlotte received Use of Force training at the Ontario Police College (including training and testing) which training has been updated annually. He testified regarding the Use of Force Model which he was taught from the outset and is still the model today. The defence filed as Exhibit 10 the Ontario Use of Force Model [2004]. It is a series of concentric circles with "situation" at its centre, then "assess", "plan", "act", then "cooperative", passive resistant", "active resistant", "assaultive", "serious bodily harm or death", then "officer presence", "perception", "tactical considerations", then "communication", then, "soft", "physical control", "hard", and then "intermediate weapons" and finally "lethal force". The document indicates that the officer is to continually assess the situation and select the most reasonable option relative to those circumstances as perceived at that point in time.

[38] Furlotte explained that the officer is to continually assess, plan, and act according to the situation (ranging from cooperative to serious bodily harm and death) and depending on the attitude of the subject. He gave as examples of "passive resistant" the protester who does not cooperate, of "active resistant" a subject who is pulling away", and of "assaultive" one who is actually or perceived to be assaultive. The officer is to employ the appropriate amount of physical control. He gave examples for "soft" (pressure points and joint manipulation), for "hard" (punches, kicks, knees, and elbows), and for "intermediate weapons" (taser and baton). In response to the passive resistant subject, the officer will employ soft techniques; in response to the active resistant subject, soft techniques and perhaps intermediate weapons; and, in response to the assaultive subject, hard techniques.

[39] Furlotte testified that he had acted in accordance with the Ontario Use of Force Model in his dealings with Wilson. Asked where he would put Wilson's conduct, he responded, "definitely assaultive", adding that Wilson had pushed against him and lunged at his partner.

[40] On August 19, 2010, Furlotte was working a 2 p.m. to midnight shift. His partner for the day was Strain. Furlotte has known Strain since he joined the police force in 2008. They are on the same platoon and see one another daily at work; in addition, they are friends and often golf together.

[41] Furlotte and Strain were assigned to a special "Lawless Public Behaviour" project pursuant to which they were to patrol parks and other common areas to which the public has access - in particular known trouble areas - and to enforce inter alia the Criminal Code, Controlled Drugs and Substances Act, Highway Traffic Act, Liquor Licence Act, and Trespass to Property Act. They were operating an unmarked grey Chevrolet Astro van which was not equipped with a "caged" area, meaning it was unsuitable for the transport of prisoners.

[42] At approximately 6:30 p.m., they were on mobile patrol checking the parking lot of the Bramalea City Centre. While in the vicinity of the bus loop, Furlotte observed a security officer dealing with an individual. Sensing something was amiss, the officers stopped to check, exited their vehicle and approached the two men. Furlotte spoke to the security officer, who told him that the male he was dealing with (Wilson) was intoxicated.

[43] Furlotte then spoke to, and was immediately met with verbal abuse from, Wilson, who was "yelling and screaming and calling me every name in the book". Furlotte said that he was not initially intending to arrest Wilson, but just to speak to him. Wilson told him to "fuck off", that if he did anything there would be a lawsuit, and that he was an "asshole" because he had made Wilson miss his bus.

[44] From a distance of two to three feet, Furlotte detected an odour of alcohol, observed that Wilson was unsteady on his feet, that his eyes were red and watery, and that his speech was slurred. As a result, he concluded that Wilson was impaired by alcohol. Furlotte became concerned for Wilson's safety as well as the safety of the officers and other pedestrians. He explained that this was a busy terminal, and that someone in an intoxicated condition could fall into the path of one of the many moving buses.

[45] Wilson was asked by Strain to identify himself and refused, saying, "Fuck you. I don't have to provide you with any ID. He reached down to pick up his bags. Having concluded that Wilson was intoxicated and that it would not be safe for him to leave, and having considered the available options, Furlotte determined that he would be neglectful of his duty if he did not place Wilson under arrest for public intoxication. He and Strain moved in, affected Wilson's arrest and handcuffed him to the rear. They moved Wilson over to their police van, away from other pedestrians. Wilson was wearing a tank top, shorts, and steel-toed construction boots. While Furlotte kept control of Wilson, Strain had his bags.

[46] Furlotte positioned Wilson face first against the van because, as he explained it, Wilson's stability was an issue. He held Wilson's right wrist with his right hand and his right shoulder with his left hand, and placed his left leg between Wilson's legs. Wilson was swaying back and forth, left and right, and then began to aggressively push off and away from the van. Furlotte responded by using significant force to press Wilson against the van.

[47] Wilson told Furlotte that he had served time and that Furlotte was nothing to him. Wilson was upset because Strain was going through his bags. He yelled "Leave my fucking bags alone" and "Don't touch my fucking papers. Suddenly, Wilson began to flex the muscles of his entire upper body while swearing at Furlotte and Strain. He became more and more assaultive. Furlotte tried to change positions to get into a more protective stance by bringing his right leg forward. Wilson was continuing to sway, his body still rigid, and began moving his feet. Furlotte was still trying to maintain control by pushing all his weight against Wilson to keep him against the van.

[48] Then Wilson dropped his right shoulder and pushed off the van toward Strain. Furlotte pulled Wilson backwards and toward him, away from Strain. Wilson went limp and began to fall toward the ground. Furlotte used all of his force to try to prevent Wilson from hitting the ground, but was unsuccessful, explaining it was due to a combination of Wilson's body weight, and the fact that he went limp.

[49] A still photograph taken from Exhibit 4C bearing the time stamp 19/08/2010 18:37:42.79 was shown to Furlotte and made Exhibit 11. It shows Furlotte's right leg extended straight out to the right with his toe pointed upward and his heel on the ground. Furlotte said Exhibit 11 demonstrates that he was trying to pull Wilson up rather than drive him to the ground, and he adamantly denied using force to drive Wilson to the ground.

[50] According to Furlotte, Strain was four to eight feet to their right when Wilson dropped his shoulder and pushed off the van. Asked if he was concerned that Wilson was a threat to Strain – who was crouched down going through Wilson's bags – Furlotte replied, "Absolutely. He was in striking distance of a boot to the face." Asked what his intention was when he pulled Wilson away, Furlotte said it was to move Wilson away from Strain so that he would be of no threat to him. He wasn't expecting the sudden weight shift as Wilson went from being extremely aggressive to limp. He was not intending to "ground" Wilson but rather to move him away from Strain and unable to kick him. Furlotte was using both hands to hold onto Wilson's forearm and elbow. The weather was hot and humid, Wilson was agitated and worked up, and both of them had been physically exerting themselves. Consequently, they were both sweaty. This affected Furlotte's ability to hold onto Wilson.

[51] Asked how he reacted to the fall, Furlotte said he was taken aback, concerned, and fearful that Wilson would fight on or need some help. Initially, he assessed whether the physical struggle would continue, then turned his mind to Wilson's well being. Anticipating a fight, he briefly placed his knee across Wilson's lower back, and then rolled Wilson into the recovery position. He maintained that he never intended to hurt Wilson.

[52] The officers immediately summoned an ambulance and a supervisor. Wilson pleaded with them to give him a ticket (presumably for public intoxication) and let him go home. Furlotte said he did not consider that option because Wilson was under arrest and still intoxicated.

[53] Various excerpts of Exhibit 4C in both motion and still form were shown to Furlotte for his comments. In (the portion time stamped) from 18:37:01 to 18:37:09, Furlotte says Wilson is moving his upper torso, swaying and actively pushing off the van. At 18:37:12, he says he is switching to a more protective stance. At 18:37:19, he says Wilson rocks forward and thrusts his chest off the van as Furlotte applies his body weight. At 18:37:21, Furlotte says he pushes Wilson against the van and changes his stance again to counter Wilson's actions. At 18:37:39, he says Wilson takes his left leg and extends it back between his legs as Furlotte uses his weight to push Wilson up. Furlotte says that at this point he is paying attention to Wilson's feet. He is concerned that Wilson is about to direct a kick at his partner on the ground. At 18:37:41, he says Wilson has brought his right leg back parallel to his left leg and thrust himself back using his thighs. Furlotte is now very concerned, fearing that Wilson is about to deliver a kick at Strain.

[54] At 18:37:42, Furlotte says Wilson has just made a growling noise, lowered his right shoulder down and to the right, and made a lunging motion toward Strain. Furlotte says he steps back in shock and tries to pull Wilson in and toward himself, his arms in tight to try to control Wilson. At this point Wilson suddenly goes limp. Furlotte says his left foot in the air indicates he is pulling. At 18:37:42.66, Furlotte says Wilson's whole body has gone limp and as Furlotte pulls him in Wilson falls. At 18:37:42.79, Furlotte's right leg is straight out (in the direction opposite the van) with the heel on the ground and the toe in the air. Furlotte explains that this is because he needed to do something to control Wilson's body weight. At 18:37:42.92, Furlotte says he is trying with all his strength to keep Wilson from hitting the ground. His knee is in a bent position and he tries to use his lower body in conjunction with his upper body to maintain control. At 18:37:43.07, Furlotte says that Wilson slips out of his grasp as he is trying to brace Wilson's fall. At 18:37:43.66, Furlotte says "you can see my knees bent trying to pull him up."

[55] At 18:38:01.95, Furlotte says he is assessing the situation, making the determination about whether the fight is on and (then) about whether medical assistance is required. At 18:38:10.59, Strain is using his radio, Furlotte having asked him to get a supervisor and an ambulance. At 18:38:27.24, Furlotte has determined that Wilson is no longer a threat and rolls him in to a recovery position.

[56] The portion from 18:37:02.96 to 18:37.45.83 was replayed. Furlotte says the time span between Wilson's thrust and his pull was "milliseconds ... so quick from the moment he thrust to pulling him away from my partner." Asked whether he made the right decision, Furlotte said "absolutely" , adding that he had a split second to make a decision, that he had no intent to injure Wilson, and that his intention was to control him.

[57] At the hospital, Wilson continued to be ignorant, obnoxious and rude with everyone. Furlotte issued Wilson a POA notice for Intoxication in a Public Place. I was advised by counsel that in due course he was found guilty of that offence, presumably following a plea of guilty.

[58] Under cross-examination, Furlotte reiterated that the basis for his opinion that Wilson was intoxicated was the information received from the security guard and his own observations that included Wilson's unsteadiness, the odour of alcohol, his red and watery eyes and slurred speech, adding that by unsteady he meant that Wilson was swaying and taking mini steps to maintain his balance. He could have added that Wilson immediately responded to Furlotte with verbal abuse, "yelling and screaming and calling me every name in the book". He said he arrested Wilson for his own safety and the safety of the community, and insisted that there was no more reasonable way to protect him.

[59] He said Wilson was angry from the "get go", and that his anger escalated when he was arrested. Asked if that was to be expected, Furlotte replied that in his experience the majority of intoxicated persons calm down when arrested. Asked if he had other options available to him - such as sitting with him or arranging for someone to take Wilson home or giving him a ticket and releasing him at the scene - Furlotte explained that he had requested a unit for transport and, given Wilson's refusal to identify himself and his angry response, he would have been neglectful of his duty to release him, adding that he had taken Wilson's safety, his own safety, and the safety of the public into account when arresting him.

[60] Furlotte was asked whether Wilson fell or if he had "grounded" him. He replied that when he pulled Wilson in, he lost control and Wilson went to the ground. Asked if he had intended to ground him, he responded, "Absolutely not. I intended to pull him away from Strain." Asked if he became angry as Wilson was insulting and swearing at him while being held up against the van, Furlotte said, "Absolutely not. You can see on the video that my demeanour never changed."

[61] It was suggested to Furlotte that he took a big step backwards just before he took Wilson down. The portion of Exhibit 4C time stamped from 18:37:35 to 18:37:42 was played at full and half speed. Furlotte said that he had taken a half step on an angle as he pulled Wilson toward him and that rather than taking a step back and pulling Wilson back and down, he had pulled Wilson toward him and away from Strain.

[62] Furlotte reiterated that he had intended to keep Wilson on his feet. The following entry at page 4 of Furlotte's notebook made that same day was put to him: "Male attempted to lunge at P/C Strain. To gain control of male attempt to ground." Furlotte explained that in essence it – which I took to be a reference to taking Wilson to the ground - was what happened, that he did not intend it, (that) it is what transpired. The notes were made that evening when there was lots going through his mind. He repeated that he had no intention to "ground". Mr. Behar put to him that "attempt to ground" suggests intent. Furlotte replied that he had taken control of Wilson and put him to the ground, explaining that he had used the wrong word - which I took to be a reference to "attempt".

[63] Furlotte was asked if he thought Wilson was a danger to his partner just before the fall, and responded, "Yes, at that point." He was asked why, if Wilson was a danger, he had his partner searching the bag. Furlotte said he could not comment, which I took him to mean that he could not speak for Strain. Asked why he did not suggest that Strain step back, he said it happened quickly. When it was suggested that he could have told Strain to move, he agreed. When asked why he did not summon Strain's assistance, he reiterated that it all happened quickly, and that he thought he had it under control.

[64] The portion of Exhibit 4C at 18:37:22 was put to Furlotte. He said that Wilson's feet are moving, that he pushes off the van and lunges toward Strain. It was suggested to Furlotte that Wilson pushes back from the van and back toward the van and then is pulled down. Furlotte replied that Wilson is pushing off and turning toward his partner.

[65] With regard to Furlotte's stated concern about Wilson kicking (or being about to kick) his partner, Mr. Behar suggested that Wilson was too far away. Furlotte insisted that Wilson was within striking distance, and reiterated that he did not raise his concern with Strain because he didn't get the opportunity. When it was suggested that they were in that position – which I took to mean Furlotte with Wilson at the van and Strain crouched down to their right going through Wilson's bags - for some time, he said the situation was fluid and repeated that he didn't have the opportunity (to raise his concern with Strain).

Maureen Holloway

[66] Holloway is 61 and has been employed as a bus driver with Brampton Transit for 8 years. On August 19, 2010, she started her work shift at 4:30 p.m. assigned as "vacation relief" to route 1020 for the first four hours. She advised that her contact with Wilson that day caused her to fill out an incident report. She was subsequently interviewed on video by the SIU on August 26, 2010.

[67] Holloway testified that she was west bound when she picked up Wilson at the Clark and King's Cross stop, which she explained is a stop for both Brampton Transit and GO Transit. Wilson, who had been seated on the bench, boarded her bus and walked by her without paying the fare. He was carrying two bags. He came back, and was apparently upset that the GO bus had not picked him up. He told her that he wanted to go to Orangeville, and that he had been refused a ride on the GO bus, but did not explain why. Holloway explained that the GO bus at that stop would not go to Orangeville; rather, it goes west bound to the Bramalea City Centre, then to Brampton, and then on to Kitchener.

[68] Holloway said that Wilson smelled of alcohol and didn't make sense. She told him how he could get to Orangeville, repeating herself many times. Wilson went back and stood on the driver's side of the bus, out of her sight. She drove to the Bramalea Transit terminal and stopped at the proper spot. The other passengers got off.

[69] Wilson took his time. He came to the front and asked her again about getting to Orangeville. He appeared to be very aggravated and was very aggressive. She observed an open can of beer in his bag. Holloway reiterated that Wilson smelled of alcohol, said that his speech was slurred and that he was unsteady on his feet, and concluded that (in her opinion) Wilson was drunk. She said that she just wanted him off her bus.

[70] Wilson had been told to get on another Brampton Transit bus to go to downtown Brampton where he was to get the bus for Orangeville. He was getting mouthy and aggressive. He did not make sense, and did not (appear to) comprehend her. He got off her bus, turned, there was more conversation, and then he gave Holloway "the finger" for no reason. He went over to a bench.

[71] Holloway got off the bus, found a security guard, and told him that Wilson was drunk and had open alcohol and that he should keep an eye on him. She filed an incident report the next day, explaining: "If we have a problem on the bus, we are required to file an incident report." In that report, she noted that Wilson was "staggering". She said that at the time she wrote the report she knew the police had dealt with Wilson, did not know about his injuries, and would have filed a report in any event.

[72] Exhibit 4A was shown in its entirety to the witness for her comments. The tape commences at 18:16:00.27. Wilson boards at 18:16:36.14, walks past Holloway at 18:16:40.10, puts down his bags on a seat on the driver's side of the bus, and returns to speak to her at 18:16:51.18. Holloway reiterated that Wilson was talking about going to Orangeville and upset about not being picked up by the GO bus, and that she explained to him how he was going to get to Orangeville. Wilson was within two to three feet of her. At 18:17:14.11, Wilson pays the fare and takes a transfer. Holloway said Wilson was not happy about paying the fare, that he threw the coins in the fare box and grabbed the transfer.

[73] At 18:18:02.28, Wilson returns to the front of the bus and hangs on to a pole and the fare box. Holloway said that he was questioning her again about going to Orangeville by Go bus. Wilson is swaying back and forth. Holloway explained that she would not normally permit a rider to stand next to her, but only when (like here) she would want to "diffuse" the situation. She said she was concerned the moment Wilson got on the bus about her safety and the safety of her passengers. She said these concerns were raised because Wilson was really angry, had been drinking, and was in a "nasty" state, and that her concerns only increased with contact.

[74] At 18:19:59.34, her bus has now stopped at the Bramalea City Centre bus terminal. At 18:20:20.23, Wilson returns to the front of the bus with his bags. At this point, Holloway saw the open can of beer in one of his bags. She said there was yet another discussion about how Wilson was going to get to Orangeville. She told him where in the terminal he had to walk to board the next bus. According to Holloway, his mood worsened: he was impatient, angry, and volatile, and she wanted him off her bus.

[75] At 18:20:39.06, Wilson can be seen making several hand gestures. Holloway motions with her hand to give Wilson directions. Holloway said Wilson was "talking nonsense", explaining that he was talking about the colour of his hair and her hair. At 18:20:43.47, Wilson is off the bus but still engaged with her, and gives her the finger (she says) for no reason, adding that she was firm but polite with him. At 18:20:54.55, Wilson is making more hand gestures and continuing to talk nonsense, still angry and still volatile. At that point, she boarded the waiting passengers, and at 18:21:00.29 the tape ends. Holloway said that she got off the bus, found a security guard, and pointed Wilson out to him.

[76] Under cross-examination, Holloway agreed that it sometimes happens that passengers walk by the driver on boarding and come back to pay, but added that normally they will ask her to give them a minute and Wilson did not.

[77] Portions of Exhibit 4A were shown to the witness during which the bus makes a series of turns at (what she estimated was about) 20 kph. She was asked if she could see him staggering. Holloway replied that Wilson was unsteady when he got on the bus, and unsteady on the occasions when he came back to her side. It was suggested that Wilson was not staggering. She replied that he was unsteady and staggering.

[78] I asked the witness why she spoke to security. She explained that Wilson was volatile, drunk, had open alcohol, and was about to get on another bus. She said she was concerned for the next driver.

Brandon Strain

[79] Strain is a 26 year old police constable who has been with the Peel Regional Police for five years. At the time of these events, he had about three years of policing experience. He is a graduate of the University of Ontario Institute of Technology in Justice Studies.

[80] Strain met the defendant in 2008 when Furlotte joined his platoon as a rookie. They would occasionally be assigned as to work together as partners (he estimated less than ten times before this incident).

[81] On August 19, 2010, they were working a 2 p.m. to midnight shift, assigned to work together on a "parks project" looking for Liquor Licence Act and Controlled Drugs and Substances Act offences. At about 6:30 p.m., they were driving near the Bramalea bus terminal when he observed a security guard dealing with Wilson. The officers made a decision to become involved, and were advised by the security guard that Wilson was probably intoxicated. Wilson seemed agitated, the security guard was unarmed, and Strain believed that Wilson "was more than he could handle". They got out of the van and spoke to Wilson.

[82] Strain said that Wilson was "immediately mad at us because he had missed his bus to Orangeville", adding that Wilson pointed at a bus leaving the platform. At this point, they had barely begun to engage Wilson in conversation. They were standing next to a bench about ten to fifteen feet from the van. Strain observed that Wilson was unsteady on his feet. He could smell alcohol coming from Wilson at a distance of about six feet. His eyes were very red and watery. His reactions were slow and delayed.

[83] The officers spoke to Wilson for about five minutes before placing him under arrest. His speech was slurred. He was swearing at them, raising his voice, and generally uncooperative. He admitted to having consumed six to eight beers. Strain formed the opinion that it wasn't safe for Wilson to continue on his way, citing concerns that in his condition Wilson might fall, pass out, or walk out into traffic. He observed that the terminal was quite busy with buses frequently arriving and departing, and was not safe (if one was intoxicated to the degree Wilson was). Moreover, Strain was concerned that if he "was that way with us" Wilson could be a danger to others if provoked.

[84] The decision to arrest Wilson was made when he went to reach for his bags and leave. Strain said there was no other reasonable alternative open to the officers. Wilson had refused to identify himself, so the officers could not have called anyone on his behalf or driven him home assuming that was a practical option.

[85] When he grabbed his bags, each of the officers grabbed an arm. Wilson was advised he was under arrest and Strain handcuffed him to the rear. He was escorted over to their van by Furlotte while Strain picked up Wilson's bags and placed them next to the front passenger tire. Furlotte leaned Wilson face first against the van's back door. Strain began to go through Wilson's bags in an effort to identify who he was. Strain said he was crouched down about four to five feet from Furlotte and Wilson to their right. Wilson became more agitated as Strain went through his bags, raising his voice louder and louder, swearing, saying "you can't do that" and threatening to sue.

[86] As he searched the bags, Strain located two loose unopened 473 ml. cans of beer and some papers bearing Wilson's full name. He requested a transport unit to attend as the van was not equipped with a cage and therefore unsuitable for transporting prisoners. Strain explained that while he was searching he was also looking up from time to time to make sure that Wilson was under the control of Furlotte.

[87] Strain said that he observed Wilson take a step toward him and Furlotte try to pull Wilson back and away from him. Strain demonstrated how Wilson dropped his right shoulder and took a step to the right in Strain's direction. He heard Wilson make a growling sound, and was concerned that Wilson would try to kick him or otherwise hurt him.

[88] Furlotte had his left arm against Wilson's back and his right hand on Wilson's right elbow. Furlotte pulled Wilson straight back toward himself and away from Strain. Wilson fell sideways as he rotated around Furlotte and landed on the ground striking his head and side. Strain said the fall was unexpected, that Wilson did not brace himself in any way, and that (it appeared to Strain that) Furlotte could not hold Wilson up.

[89] Strain got up and went to Wilson, who was bleeding (from a cut to the side of the head), breathing and talking. Strain requested the attendance of a supervisor (pursuant to police procedure) and an ambulance.

[90] Strain said this was not an intentional grounding, that Furlotte did not use force to drive Wilson to the ground, and that it was more of a pull. Later he said that Furlotte did not act out of anger or spite, that he was reacting to (what he perceived was) an attack by Wilson on (him) Strain, and that it was a pull and nothing more.

[91] Strain said that as they waited for the ambulance Wilson kept saying "Just give me my ticket and let me go home." Strain said he would not (let Wilson go with a ticket) then, as he wasn't prepared to do it earlier and there hadn't been any change or improvement in Wilson's condition.

[92] Strain said Wilson was put into the ambulance against his wishes and that he rode with him to the hospital where he stayed with him. At the hospital, Wilson was impolite and rude and apparently annoyed with the staff and wanted to go home.

[93] According to Strain, while they were at the hospital Wilson thanked him, telling Strain that sometimes he does stupid things when drunk and he might have walked into a bus.

[94] Strain spoke to Furlotte's general reputation in their policing community for having a high moral character, for being very calm and not easily riled, for being a caring individual, and for being very professional.

[95] Under cross-examination, Strain said that Wilson had been arrested for public intoxication because he was at risk of hurting himself, and that he had been handcuffed to the rear for his own safety. He agreed that Wilson was not physically violent or threatening violence to anyone prior to his arrest.

[96] Strain said that Wilson had been swaying back and forth and that his balance "wasn't the greatest". He agreed that Wilson was obnoxious and insulting to both officers.

[97] Strain agreed that Furlotte had Wilson pushed up against the van while he was searching Wilson's bags. When it was suggested to him that if he had felt there was any danger he would have moved, Strain replied that he had not been concerned up to the point when Wilson made a movement toward him.

[98] Strain agreed that he did not note the "growling noise" in his note book, nor did he recall if he had told the SIU investigators about it when he was interviewed shortly after the incident. He denied the suggestion that Furlotte had told him about Wilson's growling.

[99] The portion of Exhibit 4C commencing at 18:37:21.69 was shown to Strain, who agreed that he is alternately looking down (at the bags) and up (at Wilson and Furlotte). Strain said that "it looks like I'm stepping back just as he (Wilson) steps toward me", which was the moment he became concerned. The video clearly shows that Strain was on his feet before Wilson hit the ground. Strain did not recall seeing Furlotte step back. When it was suggested that Furlotte pulled Wilson back and down , Strain said Furlotte pulled Wilson away from him. (Emphasis added)

[100] Strain was asked what he meant when he told Sgt. Baxter that the "male became very upset and lunged toward me." He replied that Wilson had turned toward him, taken a half step, and lowered his shoulder "moving his whole body toward me". He said he couldn't say how much force Furlotte was using to prevent it. He said that Wilson kept readjusting his feet, that he bent his knees, and that it looked like Wilson was taking a step. He acknowledged that it was hard to see the lunge, or even a step, on the video.

Affidavit and Documentary Evidence

[101] The defence filed as Exhibit 13 and 14 the affidavits of Stan Dlugopolski (sworn the 26th of June, 2012) and of James Webb (sworn the 4th of July, 2012). The affidavit of Dlugopolski recounts an interaction he had with Wilson on April 19, 2010 when he had occasion to arrest an apparently intoxicated Wilson for assaulting a peace officer. The affidavit of Webb recounts an interaction he had with Wilson on March 29, 2001 when he had occasion to arrest Wilson for being intoxicated in a public place. The defence also filed as Exhibit 15 the unredacted criminal record of Robert Francis Wilson.

[102] The Crown took no issue with the form of this evidence but took the position that their contents are not relevant and do not assist the court.

ISSUES

[103] Counsel agree that there are two issues in this case: first, the lawfulness of the arrest of Robert Wilson; and, second, assuming the arrest was lawful, whether the amount of force used by Christopher Furlotte during the arrest was excessive.

APPLICABLE LAW

The Requirements for a Lawful Arrest under s. 34(5) of the Liquor Licence Act

[104] The Liquor Licence Act R.S.O. 1990, Chapter L.19 is a provincial regulatory statute. In s. 34(4) it enacts the offence of being "in an intoxicated condition in a place to which the general public is invited or permitted access". It then enacts a limited power of warrantless arrest in s. 34(5), where a police officer "finds" a person committing the offence and where the officer forms "the opinion" that arrest is "necessary for the safety of any person": R. v. Toronto (City) Police Service RE: R. and Edward Ing and John Cruz, [2012] O.J. No. 932 Ontario Superior Court of Justice, M.A. Code J., paragraph 23

[105] There are three requirements for a lawful arrest under s. 34(5) of this Ontario statute. Section 25 of the Criminal Code would provide a defence of "justification" to the officers in this case unless the Crown proved the absence of "reasonable grounds" in relation to one or more of these three conjunctive requirements:

(a) first, reasonable grounds to believe Wilson was intoxicated in a public place;

(b) second, reasonable grounds to believe that there was risk to Wilson's safety or someone else's safety; and

(c) third, reasonable grounds to believe that arrest was "necessary in the sense that there were no other reasonable ways of preventing the risk to safety.

R. v. Toronto (City) Police Service RE: R. and Edward Ing and John Cruz, (supra) paragraph 24.

Excessive Use of Force by Police

[106] The relevant portions of s. 25 of the Criminal Code provide as follows:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of law

(b) as a peace officer

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.

26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

[107] Police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity, and reasonableness: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.) LeBel, J. at paragraph 32

[108] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he believes that it is necessary to protect him, or another person under his protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis: R. v. Nasogaluak, (supra) at paragraph 34

[109] Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances: R. v. Nasogaluak, (supra) at paragraph 35

Reasonable Doubt

[110] The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence. It rests with the prosecution throughout the trial and never shifts to the accused. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320

[111] On the issue of credibility, (i) if I believe the evidence of the accused, I must acquit; (ii) if I do not believe the evidence of the accused, but am left in a reasonable doubt by it, I must acquit; and, (iii) if I do not believe and am not left in a reasonable doubt by the evidence of the accused, I must consider whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused: R. v. W. (D.), [1991] 1 S.C.R. 742

ANALYSIS

[112] I place no reliance whatsoever upon Wilson's purported expression of thanks at the hospital. It suffices to say that, assuming Wilson said the words attributed to him by Strain, the utterance is inadmissible hearsay if tendered for the truth of its contents, and is otherwise unhelpful.

[113] Likewise, I place no reliance whatsoever on Exhibits 13, 14, and 15. It is trite to say that absent the vive voce evidence of Wilson, his credibility is not an issue in this trial. As I understand the position of the defence, it is that the contents (of the affidavits and of Wilson's criminal record) lend credence to the versions of events testified to by Furlotte and Strain and/or make them more likely to be true. In my view, this evidence, even if marginally relevant, is neither material nor admissible. Moreover, it would be unsafe to place any reliance on them for that purpose, and I decline to do so. (Emphasis added)

[114] Turning to the application of the principles in R. v. W. (D.), I believe the evidence of Furlotte. I do so because I was impressed with his overall demeanour and in particular his forthright responses as a witness; and, because his evidence was supported by the evidence of other witnesses whose evidence I had no difficulty in accepting, including Holloway's on the issue of the degree of Wilson's state of intoxication, and Strain's generally; and, because his evidence is supported to a great extent (and uncontradicted in any meaningful way) by the evidence of both Crown witnesses.

[115] Moreover, there is nothing on the video (Exhibit 4C) which is in my view inconsistent with Furlotte's evidence. The video is inconclusive on a number of points, the most salient of those being (a) the force being exerted by Wilson at the material time, (b) the force being exerted by Furlotte at the material time, and (c) whether there was a sudden and unexpected weight shift as a result of Wilson going limp. I did not have the advantage – or at any rate the opportunity – to hear from Wilson. With regard to those matters that only Furlotte and Wilson could address, I have only Furlotte's evidence, which evidence I believe and accept.

[116] On the basis of Furlotte's evidence and the evidence of Strain, supported by the evidence of Holloway and both Crown witnesses and by the portion of the Agreed Statement of Facts regarding Wilson's projected blood alcohol level at the material time, I find that:

(a) Furlotte (and Strain) had reasonable grounds to believe that Wilson was intoxicated in a public place;

(b) Furlotte (and Strain) had reasonable grounds to believe that there was a risk to Wilson's safety or somebody else's safety (namely anybody who might come into contact with him while he was in that condition); and

(c) Furlotte (and Strain) had reasonable grounds to believe that Wilson's arrest was necessary in the sense that there were no other reasonable ways of preventing the risk to safety

[117] In the result, I find that the arrest of Robert Wilson for being intoxicated in a public place by Constables Furlotte and Strain was a lawful arrest.

[118] On the evidence which I do accept, I find that Wilson's physical movements and his words - including both content and tone - in the moments immediately prior to the take down, caused Furlotte to reasonably believe that Wilson was about to strike out at his partner, that Furlotte's primary intent was to pull Wilson back and away from Strain, that as he was being pulled back Wilson suddenly went limp, that the effect of this was to create an unexpected shift in weight that caused Furlotte to lose control of Wilson's body and resulted in a violent, face first fall to the sidewalk by Wilson that was unintended and that was not and could not have been foreseen by Furlotte.

[119] In the result, I find that the force used by Furlotte to control Wilson and to prevent Wilson from striking out at Strain with steel-toed boots – which I find was Furlotte's honest and reasonably held belief - was no more than necessary in the circumstances and was not excessive.

CONCLUSION

[120] On the single count of assault causing bodily harm, I find Christopher Furlotte not guilty.

Date: August 2, 2012

Signed: "Justice Neil L. Kozloff"