Court File and Parties
Court File No.: Halton 10-4092 Date: 2013-04-08 Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Douglas Brown
Before: Justice Stephen D. Brown
Heard on: January 17, 18, July 25, October 16, December 4, 2012 and January 10, 2013
Reasons for Judgment released on: April 8, 2013
Counsel:
- Mary Ward, for the Crown
- Wendy Oughtred, for the accused Douglas Brown
Brown, J.:
1.0 Introduction
[1] On December 15, 2010 Douglas Brown was taken to Joseph Brant Memorial Hospital in Burlington. He suffers from psychiatric difficulties.
[2] He was admitted to the hospital under the authority of the Mental Health Act and, when advised that he was going to be given an injectable medication, he allegedly became threatening and assaultive to the staff. He is alleged to have thrown a chair against a locked metal door of the room that he was in while stating that he refused to take the medication.
[3] The police were called and when they entered the small locked psychiatric intensive care seclusion room to arrest him for the assault charge, he allegedly struggled with them.
[4] He was Tasered by the police and was struck several times about his head. During this time he allegedly grabbed at the gun of Sergeant Carroll.
[5] He is charged with assaulting nurse Katherine Szostak and social worker Carol Veecock contrary to s. 266 of the Criminal Code and attempting to disarm Sergeant Stephen Carroll contrary to s. 270.1(1) of the Criminal Code.
[6] The Crown elected by way of summary conviction and the trial proceeded in front of me over the course of several days spanning a considerable period of time.
[7] For the reasons that follow Mr. Brown will be found not guilty of all charges.
2.0 THE EVIDENCE AT TRIAL
2.1 The Evidence of Carroll Veecock
[8] Carroll Veecock is a clinical social worker on the crisis team at the hospital and had been so employed since March 2010. She works at the hospital on a part-time basis and has a full-time position in a similar capacity at Lakeridge Health for the past five years.
[9] She is attached to the psychiatric teams at these hospitals and some of her duties involve assessing patients presenting in the emergency ward, consulting with doctors and psychiatrists and following their directions regarding a patient's needs.
[10] On December 15th she was called to assess Mr. Brown. He was known to hospital staff having had prior admissions to the hospital and a previous diagnosis of schizophrenia. He was seen in Emergency and deemed to be a danger to himself, having ingested an overdose of Valium and some alcohol and was put on a Form 1 by the Emergency Room doctor.
[11] She first started talking to him at about 7:30 p.m. and spoke to him for about one half of an hour inside the seclusion room. She kept the door open. Mr. Brown was crying at times in the interview when he talked of past sexual abuse. After the initial assessment she contacted the on-call psychiatrist, Dr. Colonne, and discussed the matter with him.
[12] After discussing the matter with him, she returned at about 9:00 p.m. to advise Mr. Brown that he was going to be admitted to the psychiatric unit. Mr. Brown was in the locked seclusion room that should have been empty of items that could be used as a weapon. Instead, it contained chairs, an IV stand, a table, and an oxygen bottle. Clearly hospital procedure had not been followed in lodging Mr. Brown in the room with these items, or in allowing him to remain in the room with these items.
[13] As she was talking to him and after she advised him that he was going to be admitted and that he was going to be given an injection of Haldol he began to yell at her and lifted the chair and started to bang it on the locked door of the room three times. He wanted to go home to feed his pet ferret and to get his contact lens solution. He said that he was going to hurt her, that the police were "fuckers" and that he wanted them to shoot him.
[14] Her evidence concerning telling him of his admission and his impending injection is found at page 29-30 of the January 17, 2012 transcript and is as follows:
Q. And again, just for my clarification when the psychiatrist told you, although he wasn't giving you an order obviously to do it, but when he explained to you that this would have to be done was that when you initially talked to him after you're initial assessment?
A. Oh, yeah after the assessment I go back and I usually say to patients and this is what I did to him at approximately nine. I said, you know, "You're going to be admitted", you know, "They're going to give you some medication. It's going to be in the form of a needle", you know and he did not want to—he didn't want to hear that. He just wanted to leave. "I need to leave", that's all he kept saying, "I need to leave, I need to go home, I need to take care of my ferret and I need to get some eye contact solution."
[15] Ms. Veecock wisely chose not to enter the room and, because of the commotion that Mr. Brown was causing, a "silent code white" was called. This is a procedure where security and other personnel are summoned to the location when a patient is being aggressive or unmanageable.
[16] There were about ten people around at this time, she estimated. One of them was nurse Katherine Szostak, although Ms. Veecock doesn't remember any interaction that she had with Mr. Brown. At some point it was decided to call the police "for backup".
[17] She stated that at some unknown later time about 5 or 6 police officers arrived and they formed a plan on how to enter the room.
[18] Ms. Veecock described what occurred next commencing at page 34 of the transcript of January 17, 2012 as follows:
A. Well, when the police arrive basically what happened is we collaborate as a team as to what would be the right approach...
Q. Uh-hum.
A. ...right, because you can't just—and even in a code white you always have to say, okay you're going to take the right arm, the left arm, the right leg, the—you know what I mean? You have to be organized. You just don't rush in and just—you know what I mean? You have to be very careful because of how you're, you're responding to a code because this person also is fighting you. So, you have to protect yourself, as well. So, we collaborated as a team, you know, how we're going to approach entering and then, of course, they assign a nurse who is going to have the IM needle, right, because you need to have the person that's actually going to be giving the needle to him.
Q. Stop you there for a second. When you say that as a team, are you including the police in that?
A. Yeah, yeah.
Q. Okay and how many officers were there initially?
A. I don't know, five, six. It, it, it was—there were so many of them.
Q. Yeah, okay and do you know who the nurse was assigned to do the needle?
A. No.
Q. Okay and were you going to be part of the entry or not?
A. Yes.
Q. Okay.
MS. OUGHTRED: I'm sorry, yes?
A. Yes, yeah because I'm part of the crises team, yeah.
MS. WARD: Q. And what—only if you remember, but do you remember what was your assignment or what was discussed in terms of when you would enter and what you would do? Do you remember that?
A. Yeah, I basically—I, I basically was the one that's going to keep doing the talking because at this point, I mean, he was really, he was just dialoguing with me. It was like, you know, "I'm going to talk to Carrol, I'm going to turn on my side, you can come in and give me the needle", like you know he was...
Q. Did, did he say that?
A. ...saying that. These are the thing he was saying. He kept saying that. He said, "You can come in." I, I'm, you know "You guys can give me the needle", you know. "I'm going to turn on my left side and, you know, and I'm going to take the needle." He did say that and he said that in a very, very calm voice, he did.
Q. Okay and was that after...
A. So.....
Q. ...the police arrived or before?
A. Yes and he was aware that the police were out there because, you know, I, you know I said "Yes the police are here." I says "We're going to need to come in. We need to give you the needle" and he did say that he was going to turn on his left side.
Q. Okay. So, you're talking to him...
A. Uh-hum.
Q. ...through the window, right?
A. Uh-hum.
Q. You can see him, is that right?
A. Yeah.
Q. Okay and you tell him the police are here, that the police are going to come in?
A. Uh-hum.
Q. And what else did—and, and you indicated to give you the needle, is that right?
A. Yes, that's just what he was told.
Q. Okay.
A. And he did turn on his left side.
Q. Okay, just, just give me one second here, okay. I just want to step back just for a second...
A. Okay.
Q. ...before that conversation with him. When the police initially arrive and there's a discussion with whatever members of the hospital team are there and the police officers and again I don't want you to guess; do you know how long that discussion might've taken place before anybody entered the room once the police came?
A. That could be 10, could be 15 minutes. I really don't know, like I mean I, I didn't write all that detail down ma'am.
Q. No, no, that's why I'm asking...
A. No, I didn't, yeah.
Q. ...you not to guess if you don't remember.
A. Yeah.
Q. And there was discussion of who would do what and then your job you said was to keep talking to him...
A. Yes.
Q. ...and, and you said you told them the police are here and we're going to come in and give you the needle, right?
A. Yes, ma'am.
Q. And then how long after he said, "Come in, I'll turn on my left side. I'll take the needle" and he turned on his side; how long after that did the entry take place?
A. I wouldn't even—it's not even, not even five minutes after that, like I mean like we did, you know, we unlocked the door.
[19] At one point when the police arrived she stated that Mr. Brown became aggressive again and said he wanted the police to shoot him, but he eventually calmed down again and said that he would take the needle. He turned on his side on the bed facing the wall and had his buttock exposed to allow them to give him the needle.
[20] She stated that as soon as the police entered the room he became very violent. He was up on his feet with the chair in his arms coming at them. He was yelling profanities at the police and saying he wanted them to shoot him. Every other witness who testified before me contradicted her evidence of Mr. Brown raising the chair over his head and coming at the police.
[21] She said he went after the Sergeant's gun and she heard a click and then the Sergeant's flashlight fell on the floor.
[22] She testified that she saw Mr. Brown being Tasered but it seemed to have no effect on him. She only saw him Tasered in the back.
[23] She said while this was going on she was at the outside edge of the door and, despite there being several people in the room, she could see what was happening.
[24] In cross-examination, she clarified that the only emotion that she noted when she first interviewed Mr. Brown was that he was crying at times when discussing his past sexual abuse. Although she had testified in-Chief that he had become aggressive, she clarified that it was only after her first interview when she went to tell him he was being admitted and would have an injection that he became that way.
[25] She confirmed that she was not afraid of him breaking out of the door with the chair because the door was a heavy one and it was locked.
[26] She stated in cross-examination that one of the nurses was in the room with the police officers when they entered and that she put the bed up against the wall. Every other witness who testified later contradicted this evidence.
[27] She stated that he was on his feet as soon as the police entered the room and when they got the chair away from him he was kicking and punching at people and landing punches.
[28] Notwithstanding that there are several police officers struggling in the room with Mr. Brown, Ms. Veecock says that there are two nurses in the room and they are able to remove the stretcher from the room while the struggle ensues, as well as the chair and the table. Again, this evidence is strangely inconsistent with the evidence from the other witnesses that I heard in this trial.
[29] She then goes on to state that after these items are removed, Mr. Brown is face down on the floor with the police kneeling down beside him trying to restrain him when she sees the Taser applied to his back just once.
[30] He was still fighting and the Taser did not seem to have an effect.
[31] He was screaming but she didn't think it was from the pain of being Tasered, just that he was continuing to be aggressive. Shortly after this he was handcuffed. She testified that she did not see any officer punching him in the head (notwithstanding that a later officer testified that he did so).
[32] She testified that Mr. Brown was standing fighting after the chair was removed from him and she saw him grab at Sergeant Carroll's gun and heard a click. He was facing the officer and yelling "shoot me, shoot me". She cannot recall if he grabbed for the gun with his left or his right hand. This evidence was not found in her statement to the police.
[33] She then saw Sergeant Carroll's flashlight fall to the ground. He later picked it up, she said. She saw nothing else fall from Sergeant Carroll during the time in the room. She testified that she noticed some blood from the area where the Taser was applied to his back, but noticed no injuries on his face or head.
2.2 The Evidence of Katherine Szostak
[34] Ms. Szostak is a registered nurse and was working in the Emergency Department on the evening of December 15, 2010. She has 17 years of experience. She commenced work at 7:30 p.m. that evening and received a note from the day nurse about Mr. Brown. She knew that he had attempted suicide that day and had been medically cleared and was in a seclusion room on a Form 1.
[35] She said she first went into Mr. Brown's room around 8:45 to 8:50 p.m. and that he was calm and cooperative at the time.
[36] She noted that at 9:02 p.m. she went down to speak with him after hearing pounding on the door and at that time he came at her with a table. She said that when she arrived at the room he was sitting on the bed with a serious look on his face and when she unlocked the door and opened it he jumped up, grabbed the over-the-bed table that was about four feet away from her and ran at her with the table. She had the door open about two or three feet and managed to get it closed and locked as he rushed towards her. He got about two feet from her when she managed to close and lock the door.
[37] He then started hitting the door with the table. She asked him to calm down and he then responded by picking up a chair and ran the chair at the door and was hitting the door with it. His lips were moving but she couldn't hear what he was saying.
[38] It is notable that the evidence that she opened the door appears nowhere in her nursing notes or in the statement that she gave to the police. A fair reading of those statements leaves one with the distinct impression that she would not have opened or attempted to open the door as Mr. Brown was agitated at that time.
[39] She went to find Ms. Veecock but couldn't find her. She discussed with another nurse about getting a doctor's order to calm him down with an injectable medication and she called a code white which brings all medical personal security and porters to the scene of a violently acting out patient.
[40] She wanted to develop a plan to get the items out of the room that had been mistakenly left in there that could be used as weapons and to give him the calming medication.
[41] She said when everyone was there they tried to open the door on four or five occasions over the course of about an hour, but each time he used either the table or chair to ram the door.
[42] At that time, a decision was made to call the police and they were called and they arrived about 15 to 20 minutes later. The nurse apprised them of the situation and the plan was to take all of the equipment out of the room and to administer the medication to him.
[43] She testified that they tried to talk to him for about 30 to 40 minutes, asking him to back away from the door and leave the equipment so that they could enter. She said that he responded by putting the table in front of the door.
[44] Sergeant Carroll was called, she stated, because the police thought he might have to be Tasered and none of them had a Taser with them. He arrived a short time later and a plan was devised by the police to enter the room and to subdue him.
[45] She indicates that the last view she had of Mr. Brown prior to the entry was that he was sitting on the edge of the stretcher, his hands were on the stretcher and his legs were slightly apart and he was leaning forward.
[46] She estimates that five officers entered the room and that she could not see because the police who were in front of her blocked her vision. She says that she was about two feet back from the door and that Ms. Veecock was to her side.
[47] She cannot recall anything that Mr. Brown may have said immediately prior to or shortly after the police entered the room. They entered quickly and she then recalls a struggle and a statement that "he is grabbing my gun".
[48] She heard some discussion about the Taser and then saw it applied to his back on, she thinks, two occasions.
[49] She was traumatized by the events and saw him struggling with the police and moved away slightly from the door for safety reasons after he was Tasered. She did not see any of the equipment being removed from the room until after he was subdued.
[50] Once he was down and handcuffed a nurse came in and injected him with the medication and the porters removed the equipment.
[51] She testified that she completed a nursing note indicating that she had injected Mr. Brown, but that was in error and some other unknown nurse had done so. She attributed this error to stress and fatigue.
[52] In cross-examination, she indicated that Mr. Brown had been put on a Form 1 at 4:00 pm and transferred to the seclusion room at 6:40 p.m.
[53] She described the seclusion room as being a room approximately 8 feet by 8 or 10 feet, of square dimensions, and acknowledged that it is to be clear of items when a patient who is on a Form 1 is put into that room. This witness had no explanation why Mr. Brown was put in a room, after having tried to overdose and expressing a desire to have the police cause him harm, that contained items that could be used as weapons, and also items that could be used for self harm.
[54] The seclusion room has no windows other than the one on the door that is about three feet in height and six inches across.
[55] It is a secure room with a heavy metal door with very thick glass in the viewing window.
[56] There is a deadbolt locking system comprised of a lock at the top and the bottom of the door.
[57] She never recalls the door being broken through. It is, in essence, a door designed to restrain sometimes violent and aggressive patients in a controlled contained area.
[58] In cross-examination, she agreed that when she came on duty she contacted Ms. Veecock to find out what the plan of care was for Mr. Brown. When she first spoke to him she believed that he was to remain in the hospital. There is a nurse's note authored by her that says at 7:51 p.m. he is comfortable, resting quietly, and having an interview with the crisis team worker.
[59] She was pressed on cross-examination about how her evidence in-Chief departed from her nursing notes and the statement that she had given the police in that she had not previously noted that he had come at her when she opened the door.
[60] Her responses on cross-examination were, I found, baffling and confusing and inconsistent. It defies common sense that she would attempt entry into the room when he was showing aggressive tendencies, and her testimony that he had calmed down for two minutes so she decided to enter seems contrived to me.
[61] Her testimony where she says that his lips were moving but she could not hear what he was saying, in my mind, is more consistent with the fact that he was behind a strong thick secure door rather than he was speaking in a quiet voice while obviously agitated.
[62] Her evidence that they tried to open the door four or five times over a subsequent 45-minute period of time is inconsistent with the evidence of Ms. Veecock or with any other witness.
[63] In her police statement she omits to state this and the following exchange in cross-examination found at page 31 of the January 18, 2012 transcript indicates to me why her evidence is suspect:
Q. Then, again, returning to your statement, you were asked a question: "Were you threatened by his actions?" And your answer was, "It shocked me for a second," right?
A. Right.
Q. And the officer asked again, "Do you believe your safety was threatened?" Basically asking you the same question, right?
A. Right.
Q. And on that occasion you said, "I do think so. He flexed his muscles and was looking at me intently. His behaviour and demeanor was that he was ready to spring into action," right? That's what your statement said?
A. Right.
Q. And, again, you don't talk about being at risk when you opened the door, right?
A. Right.
Q. And it would seem to me that throughout all of your behaviour, all of your—not your behaviour, your actions, in this, the thing that happened that put you at the most risk was opening the door, would you agree?
A. I agree.
Q. Okay, but you don't even mention that?
A. No, I didn't.
[64] When pressed on cross-examination about whether she opened the door, she became upset and was excused from the courtroom. During that break she communicated with Crown counsel and said "I feel like I am protecting other people".
[65] When the Crown disclosed this to the defence, Ms. Oughtred questioned her about that utterance and she stated that she was concerned about the lack of notation about who called the code white and the error in her notes where she said she administered the needle but she had not, rang hollow with me.
[66] I approach her evidence with a great deal of caution and do not afford it any weight in most areas.
2.3 Evidence of Jennifer Wozny
[67] Jennifer Wozny is a constable with the Halton Regional Police and has been a police officer for 9 years.
[68] She received a dispatch to the hospital at 9:26 p.m. on December 15th and arrived at the hospital shortly afterwards. The dispatch said that there was a large male throwing things at nurses and acting violently.
[69] Upon arrival at 9:28 p.m. Constable Egerter met her and they waited outside for the Acting Sergeant, Sergeant Stapleton, to arrive.
[70] They entered the hospital and she observed Mr. Brown in seclusion room A. She saw that Mr. Brown was in the room, had moved the table in front of the door and was sitting on the stretcher.
[71] Further officers arrived about 20 minutes later, and they developed a plan for entering the room and subduing him. Just prior to entering the room he had laid down on his left side, exposing his buttocks and facing the wall and said that he would comply with his meds. He had said that Carol could come in with his meds.
[72] The plan was to execute a tactical entry to rush into the room with each officer entering behind the other. Constable Wozny's role was to go in last and be the observer.
[73] She indicated that the door was swung open to the outside, the table was removed and the police entered the room quickly. She did not see if Sergeant Carroll had the Taser in his hand when he entered the room.
[74] She said that as soon as the officers approached Mr. Brown, he turned on his back and with his right open hand swiped towards Sergeant Carroll's firearm and at this time she heard the first stage of his holster safety disengage.
[75] To disengage this, a button has to be depressed in the inside of the holster closest to the belt. As the other officers were attempting to control him, he reached for a second time towards the sergeant's gun and grabbed the butt of the gun.
[76] At this point the Sergeant dropped the Taser to the floor and covered the holster with his hand. At that point Constable Wozny stepped in and picked up the Taser and gave it to the Sergeant after he had secured Mr. Brown's arms.
[77] She said she heard Sergeant Carroll call out "Taser" twice and then heard the sound of the device being deployed before Sergeant Carroll dropped it to the floor.
[78] She testified that she did not see Sergeant Carroll use the Taser after she picked it up and gave it back to him. She did not see him being Tasered after he was on the floor and did not see any officer punching Mr. Brown in the head. She as well did not hear any officer yelling that he was going for a gun.
[79] With respect to the evidence that she gave at one point in her direct evidence, she attempted to resile from the statement where she says the Taser was deployed before it hit the floor to indicate that she can only recall that it must have been drawn before it hit the floor. I was not satisfied with her evidence in this regard and I think that her evidence in cross-examination was more reliable indicating that the Taser was deployed or used before it was dropped. This would be more logically consistent with the calling out of "Taser" before it was dropped.
[80] Accordingly it is my view that based upon all of the evidence, the Taser was deployed during the time of or shortly before it was dropped to the floor, so that would be contemporaneously with Mr. Brown swiping at Sergeant Carroll's sidearm.
2.4 Evidence of Blair Egerter
[81] Constable Egerter was an officer with three years of service when this incident occurred on December 15, 2010.
[82] At 9:26 p.m. that evening he was dispatched to the hospital, arriving at 9:28 p.m.
[83] Present with him were Constable Wozny and Acting Sergeant Stapleton. They entered the hospital and spoke with Ms. Veecock who advised them that Mr. Brown, upon being told that he was to be admitted, became violent, picking up a chair and began slamming it against the door. She stated that she was not in the room with him when this occurred. She also stated that he said that he would hurt her with the chair.
[84] Constable Egerter testified that he then looked into the small window that was about two-and-a-half feet vertical and about six inches wide. He saw the defendant sitting on the bed facing the window and when he looked in he said the defendant said, "fuck you".
[85] He was then advised by Ms. Veecock that the defendant had said to her that "he wanted the police to shoot him".
[86] Constable Egerter then spoke with Acting Sergeant Stapleton who advised that Sergeant Carroll would be attending the hospital so that there were more officers in case things got out of hand.
[87] Sergeant Carroll arrived on scene at 10:10 p.m. and, as well, Constable Bibawi had arrived on scene.
[88] The officers discussed how they would enter the room and Constable Egerter was assigned to control the defendant's shoulders.
[89] Just prior to the entry, he saw the accused still sitting on the bed and he believes that Sergeant Carroll asked him to lie down and face the wall with his back towards them and he complied with this. Sergeant Carroll later testified that he had no communication whatsoever with Mr. Brown prior to entering the room.
[90] Constable Egerter entered the room first with Sergeant Carroll behind him. The bed was about 10 feet from the door. Constable Egerter approached Mr. Brown who was lying down on the bed on his left side, still facing away from them.
[91] He put his hand on Mr. Brown's right shoulder and then Mr. Brown spun around very quickly and with his right arm reached for Sergeant Carroll's firearm.
[92] He stated that the accused was now facing them and his upper body and head was slightly up off of the bed.
[93] He states that Sergeant Carroll had the Taser out but dropped it when Mr. Brown reached for the firearm. He didn't actually see whether Mr. Brown touched the firearm, but as soon as he saw him reaching for it he started punching the defendant in the head three times.
[94] He said at that time Mr. Brown stopped reaching for the firearm, but then he again reached for it. Again, Constable Egerter did not see if he touched it because he was trying to control Mr. Brown's shoulders. When he saw him reach for it the second time he punched him again in the face two or more times.
[95] Constable Egerter was not sure but he believed that Sergeant Carroll got the Taser back and used it in the drive stun mode, which is a method where the Taser is deployed by pressing it against the skin.
[96] He did not recall where on Mr. Brown's body the Taser was used as he was still trying to restrain Mr. Brown. He said when the Taser was deployed they were able to control him but when it stopped it was a struggle again.
[97] Constable Egerter estimates that it felt like about 10 seconds of struggling but could not be sure.
[98] When they managed to handcuff Mr. Brown he was on the floor, although Constable Egerter cannot recall when he got on the floor. He stated that after he was handcuffed he had blood on his face and had calmed considerably.
[99] He can't recall what words the defendant or the officers uttered during the struggle.
[100] In cross-examination he agreed that Ms. Veecock told him that Mr. Brown became agitated when he was told that he would be receiving medication.
[101] He stated that when he first saw Mr. Brown there was a chair in front of him, but he does not recall seeing a table. He stated that when they entered the room his purpose was to arrest Mr. Brown for the assault on Ms. Veecock and that he intended to control the area of the body that he was assigned to, being his head and shoulders.
[102] When Mr. Brown turned over and reached towards Sergeant Carroll's gun, he did not hear Carroll say anything and did not hear a click. He did not see the defendant's hand touch the firearm at any time, but thought from Carroll's reaction that he was trying to do that.
[103] He conceded on cross-examination that the Taser could have been fired immediately upon entering the room but he does not recall that. He does recall Carroll having the Taser in his right hand when he entered the room.
[104] He denied that the police entered the room to assist the nursing staff in administering medication to Mr. Brown; his intention was only to arrest Mr. Brown for the assault. He stated that he was aware that the police had previously had dealings with Mr. Brown for mental health issues. He was told by one of the nurses that Mr. Brown wanted the police to shoot him.
[105] He conceded that Carroll arrived on the scene at 10:10 p.m. and that by 10:15 p.m. Constable Egerter was reading his rights to Mr. Brown who was handcuffed and groggy from the medication.
[106] Constable Egerter in cross-examination stated that he did not have to move a table or a chair when he entered the room and that he had a clear path to Mr. Brown.
2.5 Evidence of Brian Stapleton
[107] Sergeant Stapleton is a 13-year member of the Halton Regional Police Service. He was the acting sergeant that evening and arrived at the hospital at 9:27 p.m. When he spoke to Constable Egerter he was advised that two nurses had been assaulted and that they were trying to get into the seclusion room to sedate Mr. Brown. Dr. Cherion, the emergency room doctor, advised the police that Mr. Brown needed to be sedated because of the condition that he was in.
[108] The nurses told Sergeant Stapleton that they were concerned that there was a chair and an oxygen tank in the room. He looked in the room and saw Mr. Brown sitting on the edge of the bed, but there was no conversation.
[109] He was going to arrest Mr. Brown for assaulting the nurses but was not comfortable with having just three officers effect the arrest, so he requested that another officer attend and spoke to Sergeant Carroll on the telephone who was at the police station. He said that Sergeant Carroll had more experience dealing with these types of things and that he was a former tactical officer.
[110] Sergeant Stapleton had a Taser with him but had never used it before.
[111] They waited for Carroll to arrive and when he did arrive they formulated the plan to go into the room and arrest him for the assaults.
[112] When he looked in just prior to entry, he saw Mr. Brown laying on his left side facing the wall away from them.
[113] As they entered the room, and were approaching Mr. Brown, Constable Bibawi was to Sergeant Stapleton's right, Sergeant Carroll was to his immediate left and Constable Egerter was to the left of Sergeant Carroll.
[114] He said that as they approached Mr. Brown he turned towards them and Sergeant Stapleton tried to secure his hands and there was a struggle. He told the defendant to stop resisting and he tried to secure his arms. He saw that one of Mr. Brown's arms were on the butt of Carroll's firearm.
[115] He stated that he saw Carroll back away and at that point he saw the defendant's hand on the butt of the gun. He only saw this the one time. He can't recall any words that were uttered in the room.
[116] While attempting to secure his arms he said the defendant moved more onto his stomach and the struggle continued until Mr. Brown went to the floor.
[117] He said at some point Sergeant Carroll had his Taser out and used it in the drive stun mode on Mr. Brown's back area. He can't say how many times the Taser was used.
[118] Once he was handcuffed, the nurses sedated him.
[119] Sergeant Stapleton's notes of the entire incident only comprised three and one-half pages in his notebook and are, to be charitable, sparse and lacking in many details.
[120] In cross-examination Sergeant Stapleton was somewhat evasive when it was suggested that his notes were sparse and lacking in detail. He confirmed that he did not do a will-say statement in this case, although he usually does one. He has no explanation for not doing one regarding this incident.
[121] He did not remember seeing a table in the room but said there was a chair that was off to the left about five feet in from the door. He estimated the room size to be 10 feet by 10 feet.
[122] He stated that the nurses were worried about the oxygen bottle in the room, but he said that was under the bed and covered with sheets.
[123] During the wait for Carroll to arrive he did not recall Mr. Brown being aggressive while in the room or yelling or causing any disturbance.
[124] He was not aware that Mr. Brown had agreed to take the medication at this point and he said that when he looked into the room just before entry that Mr. Brown was laying on his left side facing away from them and that he did not do this as a result of any direction from the police.
[125] He disagreed with Ms. Oughtred when she suggested that he only started to struggle when the police touched him.
[126] He said that the whole incident took about 30 seconds and that after he saw his hand briefly on the butt of the gun he was flipped over on to his stomach on the stretcher and the struggle continued. Stapleton was trying to control his upper thighs and his hands while he was struggling.
[127] He says the Taser was deployed in drive stun mode into his back just after Mr. Brown first touched the gun and while Sergeant Stapleton was trying to control his hands and while Mr. Brown was on his stomach on the stretcher. He did not recall Carroll dropping the Taser at all. He does not recall how many times the Taser was deployed. It is not suggested that he heard any clicking sound of a holster safety being released when he was in the room, directly beside Sergeant Carroll.
[128] I found Sergeant Stapleton's evidence to be unsatisfactory due in part to the brevity of his notes and the lack of detail in them, and the manner in which he gave his evidence.
2.6 Evidence of Stephen Carroll
[129] This officer testified before me as a retired police officer.
[130] He was held out as an officer who had considerable expertise in dealing with people with mental health issues, indeed, that is in part why he was called to assist in this incident.
[131] I do not dispute that he may have had that perceived expertise with his colleagues, but I believe that his views and procedures were more suited to decades long past.
[132] He seemed rigid and inflexible in his approach to this event and in his testimony.
[133] I truly hope that the standard that he has passed is to other officers who have a better understanding of the delicate needs required in dealing with enforcing the law in a more humane and understanding way towards people with mental health issues than were employed in this case.
[134] Sergeant Carroll testified that at the shift change when he commenced duty he was briefed on the fact that officers had taken Mr. Brown to the hospital earlier that day.
[135] His next involvement was when he received a telephone call from Acting Sergeant Stapleton who told him that the same person had assaulted two nurses and that there were grounds to arrest him for this.
[136] He says he arrived at the hospital at 10:00 p.m., spoke with the other officers there and they formed a plan to enter the room and arrest Mr. Brown for the assault charges.
[137] He looked through the window and saw Mr. Brown laying on his left side facing the other wall with his back towards the door and said that he appeared calm and docile at that time.
[138] He entered the room with the other officers with his Taser holstered and they approached Mr. Brown. Before any officer touched him, he rolled over and grabbed at his holstered firearm for a second or two and Sergeant Carroll grabbed his wrist and made a quarter turn to break the grip on the gun. Mr. Brown was very agitated and assaultive. Just after Sergeant Carroll broke his grip on the gun, he took out the Taser. He was yelling at him to calm down.
[139] At that time Constable Egerter struck him in the head with some punches. The other officers were trying to control his legs. The whole incident happened very quickly and was over in a few seconds. He was taken to the floor and handcuffed.
[140] He explained that he used the Taser on Mr. Brown in a drive stun mode. He said he used one pull of the trigger, which would deliver a five second burst of energy. He was not certain how many times he used the Taser. He said he used it on Mr. Brown's torso and belly area.
[141] He said that he did not know that his safety on his firearm holster had been disengaged until Constable Wozny told him afterwards. He said that Mr. Brown had his firearm gripped with his right hand, palm up, between his body and the firearm.
[142] In cross-examination Sergeant Carroll maintained that he only used the Taser in drive stun mode and that he used it against Mr. Brown's stomach and abdomen area. He strongly denied using it on his groin and said was adamant that there was not even a possibility that he used it on his groin.
[143] He denied using it on Mr. Brown's back when he was flipped over, either on the stretcher or on the floor. This evidence is contradicted by many different witnesses who witnessed the Taser being applied to Mr. Brown's back, either on the bed or on the floor.
[144] He disagreed that the plan was to go in and arrest him and then have the nurses inject him with medication. Indeed, he stated that he did not even know that the nurses wanted to inject him with medication. He was unaware that when the alleged assault took place Mr. Brown was in a locked room.
[145] He denied that there was any plan for the entry, that any officers were assigned to control certain body parts and testified that the police just walked into the room at a normal walking pace. This is contrary to the evidence of Constable Egerter.
[146] Again in cross-examination, he denied that he used the Taser in full deployment mode, which occurs when the Taser is aimed from a distance away from the target and then shoots out two darts, which lodge into the flesh or clothing, and the energy is then conducted through wires to those darts.
[147] During the cross-examination, the CEW (Conducted Energy Weapon) report concerning this Taser that is downloaded from the device was put to this officer, together with the Use of Force Report that, although he did not compose, would have been created from information that he provided.
[148] The software download from the Taser shows the device was discharged initially at 22:04:55 for a five second burst. Another burst occurred three seconds later and lasted for one second. Another burst occurs at 22:05:02 and lasts for 4 seconds in duration. Six seconds later at 22:04:58 a further five-second burst is discharged. Nine seconds later at 22:05:17 there is another five-second duration burst. And fourteen seconds later there is another six second burst.
[149] Ms. Oughtred suggested to Sergeant Carroll that the timing of these bursts suggests that he deployed the Taser almost immediately after entering the room. He denied this.
[150] Sergeant Carroll agreed with Ms. Oughtred that the Taser might cause involuntary muscle movement in the person who receiving the shock, and that a burst of three to five seconds can render someone immobilized or incapacitated.
[151] Ms. Oughtred suggested that Sergeant Carroll, when he entered the room, fired the Taser in full deployment mode into Mr. Brown's back. He disagreed with that suggestion, having stated earlier that he never used the weapon in full deployment.
[152] She suggested that after Mr. Brown was Tasered in the back he rolled over onto his side and brushed against the sidearm and that he knocked the Taser out of Sergeant Carroll's hand. He disagreed with this.
[153] He agreed that he used the Taser on Mr. Brown's midsection when Constable Egerter was punching Mr. Brown in the face. He disagreed that he used the Taser on Mr. Brown's groin area.
[154] In other cross-examination, Sergeant Carroll said after he made the initial turn to break the defendant's grip on his gun butt, he kept himself turned to the right so that there could not be another touching of the gun. He testified that Mr. Brown only touched his gun once and not twice as some other witnesses attested to.
[155] He denied that he entered the room with his Taser drawn even when it was put to him that another officer testified to that effect.
[156] My assessment of Sergeant Carroll's evidence and credibility was not favourable and, in essence, his evidence fatally taints the Crown's entire case on the charge of disarm police officer, as I will discuss further in these reasons.
2.7 Evidence of Phil Bibawi
[157] Constable Bibawi has been a member of the Halton Regional Police for just under four years when this incident occurred.
[158] He was dispatched to the hospital on December 15, 2010 at 9:26 p.m. to assist officers with an aggressive male who had earlier been sent to the hospital and who had been formed under the Mental Health Act. He received information that he had assaulted staff members at the hospital. He also had information that he had a history of what Constable Bibawi described as suicidal tendencies and "suicide by cop".
[159] Upon arrival, he received information from Constable Egerter that Mr. Brown had assaulted two nurses at the hospital, that he had exhibited aggressive behaviour and that they needed to medicate him for his aggressive behaviour.
[160] They had a brief conversation about arresting the accused for the assaults and entered the room and approached Mr. Brown.
[161] Constable Bibawi stated that as they approached, the defendant began to act in an aggressive manner and he recalls a punch being thrown by Mr. Brown. It is significant that no other witness describes Mr. Brown as throwing a punch at any time during this confrontation (with the exception of Carol Veecock).
[162] Constable Bibawi then says that he wrapped his arms around Mr. Brown's legs to try to control him and tucked his chin in to protect himself.
[163] Because of his defensive position he does not see what is happening but hears words from Constable Egerter and Sergeant Carroll "not to touch my firearm" and to "let go of the firearm". At this time Constable Bibawi yells at Mr. Brown to stop resisting. He remembers taking the accused's legs and bringing him onto the ground and he was rolled over on his stomach.
[164] He recalls a Taser being deployed because he could hear it. He recalls that the Taser was deployed while he was yelling "stop resisting".
[165] He then recalls a nurse coming in and administering a needle.
[166] In cross-examination he says that the accused threw a punch with a closed fist after the entry. However, for the most part, Bibawi was focused on controlling Mr. Brown's legs and protecting himself. He says he was able to keep his legs down on the stretcher until he was placed on the ground.
[167] It is to be noted that Constable Bibawi agreed that he did not put any entry into his notes about the Taser being deployed. He attributed this to the fact that he did not use it or see it being used, although he heard the sound of it being deployed.
[168] This officer's evidence was somewhat peripheral, in my view, to my assessment as to what occurred that evening and, although I have considered it, I do not believe that it factors in much to my overall assessment of the evidence and the conclusions that I reach.
[169] I do note, however, that he is the only witness to testify that Mr. Brown threw a punch at the time of the melee, an observation that is not in concordance with any other witness' testimony, except that of Carol Veecock whose evidence I highly suspect as being, at best, unreliable and, at worst, fabricated.
[170] This is yet another concern that I have in this case. I am unclear whether he is mistaken or simply embellishing his evidence to paint a bleak picture of the defendant's actions to substantiate the police conduct because no other credible witness corroborates this evidence of a thrown punch. Other than that, I find his evidence to be not that helpful in determining a factual foundation as to what transpired on that evening.
2.8 Evidence of Doctor Don Colonne
[171] Dr. Colonne testified before me as the last witness in this trial. His candour and truthfulness was a welcome relief from the parade of witnesses that preceded him.
[172] Dr. Colonne was the on-call psychiatrist at the hospital on December 15, 2010. He did not see Mr. Brown until the day following this incident when he discharged him, but he did have conversation with the crisis social worker Carol Veecock the previous evening and prescribed the medication for Mr. Brown.
[173] His recollection of the events is virtually non-existent, but he was able to interpret his orders that he gave to the nurses that evening which was of some assistance in determining how events unfolded.
[174] From the order sheet Dr. Colonne was able to determine that he prescribed one drug, Zydis, 10 milligrams up to twice per day on an as-needed basis. That was to be given orally. He described this drug as an antipsychotic medication that is newer than the older generation of antipsychotic medications and therefore manifests fewer serious side effects than the older generation medications.
[175] He also prescribed Haldol, 5 milligrams, to be given intramuscularly, Ativan 2 milligrams intramuscularly, and Cogentin 2 milligrams intramuscularly. These last three drugs were only to be given if the patient was exhibiting extreme agitation and/or aggression. He described this course of drugs as a chemical restraint.
[176] Haldol is one of the older generations of antipsychotic drugs and can cause considerable side effects, including Parkinsonian-like effects. The last two drugs are used to counter the side effects of Haldol.
[177] This order was generated at 8:55 p.m. according to the nurse's notes.
[178] When asked in direct examination to explain when psychiatric patients may be forced to take medication, Dr. Colonne explained his understanding of this as follows at page 13 of the January 10, 2013 transcript:
Q. So you've indicated that - well, you've described the communication issue. Maybe you can just talk - you talk about in your, your letter here - I just want to go back to the medication issue. Can you talk about the issue of consent in terms of the medication?
A. A lot of people think that just because somebody's held under the Mental Health Act, that it automatically gives the right to treat the patient. But the Mental Health Act and Health Care Consent Act are totally different. And just - the Mental Health Act gives you the right to detain a patient in the hospital. But for treatment, either you have to obtain consent from the patient or deemed the patient incompetent and obtain substitute consent for treatment. But the Health Care Consent Act also - there's a clause that in an emergency situation, you, you could treat a patient on an emergency basis if the patient is at risk for himself or others or the patient's clinical state is such that prolonged - this it's causing so much suffering to the patient that the time it would take to obtain substitute consent is going to lead to unnecessary suffering. And under those circumstances, you could take the patient without consent.
Q. Okay. So can you relate what you've just told us in terms of what the rules or laws or regulations are to the drug order that you made? How did you see - how would that - did you envision that working out?
A. The, the oral medication I ordered, basically, the clinical state – the patient's clinical state was conducive to that and the nurse would have explained to the patient what the medication was, why it's been administered and the positive effects and also the side effects, and the patient would be compliant, take the medication and hopefully would calm down and settle down.
Q. So would the patient have to consent to that?
A. That's correct, yes.
Q. And then the other drugs?
A. Other drugs prescribed - basically the intramuscular route is that - basically, it's - if a patient is calm, causing no disruption, you cannot go ahead and administer intramuscular medication to the patient. And the fact - generally, intramuscular medication is ordered in situations where a patient is quite disturbed, acutely psychotic, aggressive or threatening. Under those circumstances there, you could not have a conversation to obtain consent or it would be too risky for the staff to do that, then the intramuscular route would be used and generally, it would be on an emergency basis and consent would not be obtained.
[179] This was followed up by Ms. Oughtred in her cross-examination starting at page 22 of the January 10, 2013 transcript:
Q. Okay. Now the evidence that we've heard in this case is that after speak - you spoke with the crisis nurse or the crisis worker, whoever that was and you don't remember who that was?
A. No.
Q. You don't remember that it was Carol Veecock.
A. No.
Q. Okay. And you would have imparted to her what the plan was. Is that correct?
A. That's correct.
Q. Okay. And even though it wasn't actually an order, you would have said to her, he'll get an oral sedative and then, if he gets aggressive, he'll have to have the needle. Is that correct?
A. Yes.
Q. And if she went down and said to him, you have to have a needle, that was wrong, correct?
A. Yes.
Q. And that's especially if he's not acting up.
A. That's correct.
Q. So it's not incorrect to say that even psychiatric patients, if they're cooperating, agreeable to a plan of care, they don't have the right to refuse medication. Is that correct? Or they, they have the right.
A. They do have the right.
[180] Doctor Colonne stated that the seclusion room that Mr. Brown was in has a heavy thick door making communication through the door difficult unless the parties are using very raised voices towards each other.
3.0 ANALYSIS
[181] This case is an indictment of the treatment of mentally ill individuals in our public health system and in our judicial system.
[182] I will first assess the strength of the Crown's case concerning the assault charges.
[183] Fatal to the Crown's onus of proving these charges on the criminal standard of beyond a reasonable doubt is the utter lack of credibility that I find was exhibited in the testimony of Carol Veecock and Katherine Szostak.
[184] I find their evidence so replete with inconsistencies, both internally and externally, their demeanour in testifying so unsatisfactory, that I can attribute little if any weight to anything that they say.
[185] Ms. Szostak's rather bizarre statement that she felt that she was protecting someone, and her subsequent explanation for that statement is simply baffling to me and I find it to be unbelievable and contrived.
[186] The fact that she said that she attempted to open the door after Mr. Brown had "calmed down" for two minutes I find to be incredible and I reject that evidence.
[187] Her evidence that the other hospital workers attempted to open the door four or five times before the police arrived is uncorroborated by any other evidence and goes against common sense.
[188] Her explanation as to why she did not attempt to remove the items like the table and chair from the seclusion room where she knew that a patient was in there who had attempted self harm and was involuntarily held is perplexing and indicates that she may be as poor a nurse as she is a witness. She should have taken steps to remove those items even when she saw that Ms. Veecock was interviewing Mr. Brown at 8:10 p.m. and when he was calm and settled.
[189] After Ms. Veecock left the defendant after her assessment, Nurse Szostak again had a face-to-face assessment with Mr. Brown when he was still calm and cooperative and she again fails to remove the items from the room that could cause him self harm or harm to others. This was in direct contravention of the policy of the hospital that formed patients were not to be put in or left in seclusion rooms with these items.
[190] Similar criticism can fall on Ms. Veecock. She too made no effort to take the items out of the room contrary to hospital policy and contrary to her knowledge of Mr. Brown's recent self-harming behaviour that led to his involuntary admission.
[191] A further breach of her professional responsibilities was when she advised Mr. Brown, after speaking with Dr. Colonne, that he was to be admitted and given an injection.
[192] The evidence of Dr. Colonne shows that these were not his orders. Up until that point Mr. Brown had displayed no aggression and that is why Dr. Colonne prescribed the Zydis medication that was to be administered orally if the patient consented. He only prescribed the three intramuscular chemical restraint drugs as a precautionary measure in case Mr. Brown's agitation and aggression elevated.
[193] When Ms. Veecock told Mr. Brown that he was to be admitted and was to be given the injectable medication, she was breaching Dr. Colonne's specific order and taking away Mr. Brown's right and ability to consent or refuse the first prescribed medication.
[194] There is no doubt that Mr. Brown became agitated when he was advised of this. I find that he may have screamed and yelled and banged the chair on the door in frustration, but I cannot find on the quality of this witness' evidence that he struck at her with the chair behind the locked door or that he stated that he was going to hurt her.
[195] I think that foremost in Ms. Veecock's mind was that her errors had caused a situation to escalate to a point were Mr. Brown was in danger of harming himself or others.
[196] Her ludicrous testimony that Mr. Brown was rushing the police brandishing the chair at them and asking them to shoot him when they entered the seclusion room only further compounds her credibility problems. This is contrary to any other evidence given in this trial and I simply reject it as contrived or fabricated.
[197] The fact that she can be so far off base regarding these details makes me certain that I cannot rely on any of her evidence unless other evidence that I do accept corroborates it.
[198] Accordingly, I am unable to accept that Mr. Brown committed an assault against this witness or that he threatened to hurt her or made any menacing gestures towards her. I am as well reluctant to use any of her testimony to corroborate anything that the police say because of my grave concerns about whether she is capable of telling the truth.
[199] Similarly with Nurse Szostak, by the conclusion of the evidence heard in this trial, her credibility was in tatters.
[200] There is not a doubt in my mind that she did not open the door to the seclusion room as she testified that she had. It was not in her statements given to the police or in any other documentation, and it would be against all common sense to do so with an agitated patient in that room.
[201] I think that both of these health care providers knew that they had contributed to a situation that had escalated out of hand and I suspect that they thereafter enlisted the police to administer chemical restraints to this individual whose basic human care and safety they had ignored up to the point in time when the police were called.
[202] It is not necessary for me to consider in this case whether Mr. Brown could be guilty of assaulting these two individuals from behind a locked secure door, because the evidence is such that I cannot be confident that he did any of the acts as suggested by these two.
[203] Because of my grave concerns about the credibility of these two witnesses, I cannot say that I would have any confidence in accepting their version of events concerning their interactions with Mr. Brown that evening and I therefore cannot be satisfied that the Crown has met the requisite standard of proof of the actus reus of the charges of assault against these two witnesses whose loyalty to the truth I find to be sorely lacking.
[204] Similarly, regarding the charge of attempting to disarm the police officer, Stephen Carroll, contrary to section 270.1(1) of the Criminal Code, I again have serious concerns about the credibility of the officers that testified before me regarding that matter.
[205] I will commence with an examination of the evidence of Sergeant Carroll.
[206] What is fatal to Sergeant Carroll's testimony are Exhibits 2 and C in this trial. Exhibit C is the CEW report that is evidence by virtue of the agreed statement of facts which is Exhibit 2 filed after Sergeant Carroll testified.
[207] In Exhibit 2 it is agreed that Constable Grose has reviewed the Use of Force Report and the CEW report of December 15, 2010 and that it was a computer-generated form that was to be filled in by the officer who fired the weapon, which in this case is the Taser fired by Sergeant Carroll. The source of all of the information should be the officer who fired the Taser (emphasis mine).
[208] These exhibits lead me to the inexorable conclusion that many if not all of the witnesses that testified before me, with the exception of Dr. Colonne, were at best confused or mistaken, or at worst being untruthful in their evidence.
[209] In dealing with Exhibit C, I find it improbable that even though Sergeant Carroll would have generated the required data on this form and then sent it to his Staff Sergeant who would then have forwarded it to Constable Grose, that the intermediary Staff Sergeant would have added additional crucial and incorrect information such as that the weapon was used in full deployment mode and that it was applied to the accused's groin.
[210] That would be akin to the Staff Sergeant when receiving a report saying that the defendant was shot once in the leg then adding that he was shot three times in the chest. In my view, it simply could not happen.
[211] Sergeant Carroll had not seen these documents until cross-examination and, in my view, simply forgot that they existed or that he had entered the data into the report that he did.
[212] His explanation that he did not generate the report rings hollow with me. If he did not generate the report, I am certain that he did generate the data and facts that found their way into the report. He was obviously caught off guard by the production of these reports and was unable, in my view, to offer a suitable explanation to their very damaging contents.
[213] In essence, I find that this evidence establishes the following facts:
Sergeant Carroll, upon entering the room, deployed the Taser on full deployment mode sending two prongs into Mr. Brown when he was compliant and laying on his back with his buttock exposed after having stated that he was going to accept the medication;
The fact that the Taser was fired in full deployment mode could only have happened from a distance i.e. as soon as Carroll entered the room;
Upon being jolted with the first full deployment of the Taser, Mr. Brown reacted by rolling onto his back toward the officers and flailing at the officers who were now surrounding him with one (Constable Egerter) punching him several times in the face;
During this flailing and involuntary muscle contractions, his hand may have come into contact with Carrol's gun butt on one occasion;
I am not satisfied that he clicked or disengaged the safety on Carroll's gun because Carroll himself, as well as Stapleton, did not hear the distinctive click of the disengagement mechanism;
I am satisfied that the officers who did testify that they saw Mr. Brown twice touch or reach for the gun are mistaken or being less than candid in their evidence;
I am satisfied that Sergeant Carroll deployed the Taser in full deployment mode to Mr. Brown's back as soon as he entered the room and then later deployed it five other times to his body in drive stun mode, including to Mr. Brown's groin;
I find that Sergeant Carroll was not giving truthful evidence when he testified that he did not deploy the Taser to Mr. Brown's back or to his groin and that the data that he generated electronically supports this, he was not aware of these reports before his evidence in-Chief and he was essentially 'blindsided' by them in cross-examination.
[214] I find that because Mr. Brown is a large strong man of approximately 6'4" in height and about 250 pounds in weight that Sergeant Carroll, the senior officer at the scene, determined that he would engage in a pre-emptive strike against Mr. Brown and immobilize him with the Taser immediately upon entry into the room.
[215] This, in my view, was an unnecessary and excessive use of force. I find that upon being struck by the Taser prongs in full deployment, Mr. Brown rolled over from his submissive position and the police set upon him to attempt to restrain him while Sergeant Carroll continued to Taser him in the drive stun mode in the abdomen and the groin and after he fell to the floor, to his back.
[216] While Mr. Brown had these painful and debilitating shocks being applied to him, he was struggling and it may have been that at one point his hand brushed against Carroll's firearm, but I can not be satisfied beyond a reasonable doubt that it was anything other than an involuntary muscle contraction that caused this or simple flailing from the pain and fear that the police caused this man. I am certainly not satisfied, even on a balance of probabilities standard, that he attempted to disarm Sergeant Carroll.
[217] What is more disturbing to me is that the evidence of Sergeant Carroll appears to be given untruthfully and other officers on the scene unwillingly or willingly appear to be a part of this cover up.
[218] Constable Wozny gave evidence that concerned me. Even though she was tasked to be the last one in the room and to act as the observer, she failed to see Constable Egerter punching Mr. Brown in the head on at least five occasions according to Constable Egerter himself.
[219] She says she hears the click of the stage one disengagement of Sergeant Carroll's firearm, however neither Carroll nor Stapleton, who was immediately beside Carroll, heard this sound.
[220] She went to great lengths to distance herself from her initial evidence given on direct examination that she saw the Taser deployed, but then tried to correct her evidence by saying that she saw it drawn before it was knocked out of Sergeant Carroll's hand.
[221] Sergeant Stapleton's evidence concerns me. He was the next most senior officer on the scene and yet he created totally deficient notes and, in my view, at best engaged in wilful blindness as to the actions of Sergeant Carroll in failing to see what the CEW and Use of Force exhibits suggest. He was a qualified officer who would have noticed that the Taser was deployed in full deployment mode upon entry, yet he maintained that this was not the case. I find this troubling and concerning.
[222] With the two most senior officers at the scene failing to testify truthfully and candidly to the events that transpired, I am not surprised that the more junior officers would feel compelled to follow along, although I am disappointed that they did.
4.0 CONCLUSION
[223] For all of the above stated reasons, the Crown has failed to prove to my satisfaction any of the essential elements of the charges against Mr. Brown and I will accordingly enter findings of not guilty on the information on all counts.
[224] I realize how painful this trial process has been to Mr. Brown. This trial has spanned over a period of almost 15 months. He has been facing these charges and the attendant stress that they no doubt would have caused a man with his difficulties. These charges have been hanging over his head for almost 28 months.
[225] Although these are not legal considerations that factor into my decision, they are circumstances that I recognize have caused great suffering and anxiety for Mr. Brown.
[226] What I have found in this case are serious shortcomings by caregivers and police who should be more sensitive to the needs of the mentally ill. I can only say that I can take some small consolation that this evidence did not come out during the course of an inquest or a public enquiry, but instead in a trial before me where I hope that my recognition of these shortcomings may prevent a reoccurrence of them in the future.
Released: April 8, 2013
Signed: "Justice Stephen D. Brown"