Court File and Parties

Court File No.: 09-15319

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Edward Ing

Before: Justice S.R. Clark

Trial held on: December 3 and 4, 2012

Judgment released on: January 10, 2013

Counsel:

• Mr. Philip Perlmutter and Mr. Ian Bulmer for the Crown
• Mr. Alan Gold for the defendant Edward Ing

Introduction

[1] The defendant, a Toronto Police Service officer, is charged with assault causing bodily harm against Mr. Richard Moore.

[2] The alleged offence date is April 24, 2009.

[3] On this date, he and his escort, Cst. John Cruz, were investigating a male sitting on the sidewalk with an open can of beer in his hand on George Street, south of Gerrard Street, in the city of Toronto, at approximately 10:30 p.m. The complainant walked by and uttered some derogatory comments to the officers. Cst. Cruz told him to move along. He did. However, he returned shortly thereafter, and made further comments to them as he passed by. Both officers were of the view that he exhibited indicia of being intoxicated. They followed him north on George Street. He turned east on the south side of Gerrard, and walked toward the front door of the first house on the southeast corner. The defendant pursued him in an effort to arrest him for being intoxicated in a public place. He resisted. He fell hard on the ground, sustaining significant injuries to his head and ribs. He was subsequently taken by ambulance to St. Michael's hospital and was treated.

[4] The Crown contends that the defendant did not have grounds to arrest the complainant. In fact, the evidence shows that the complainant had no alcohol in his system whatsoever. The defendant used excessive force in repeatedly striking and kicking him. If the arrest was unlawful, the defendant should be found guilty as charged.

[5] The defence submits, on the other hand, that the defendant never struck or kicked him, but only used as much force as necessary to effect the arrest by grabbing his arm. He had an honest, albeit mistaken belief that the complainant was intoxicated, and discharged his lawful duty to arrest him. The defendant is entitled to the defence of mistake of fact.

[6] Counsel have substantially narrowed a number of the issues. No viva voce evidence was called, save and except from Cst. Cruz, who was called by the Crown, and the defendant giving evidence on his own behalf.

[7] Otherwise, the Court was asked to consider the transcripts of the testimony given by substantially all of the witnesses in the first trial, held in December, 2010.

[8] The Court was also provided with copies of photographs of the scene, and the complainant's medical records. These are inconclusive as to whether the cause of the injuries was due to a fall or an assault.

[9] The following agreed facts were also provided:

1. The complainant's rib fractures (but not his finger injury) were suffered during the altercation, however, the mechanism by which they were sustained is not admitted.

2. The rib injuries would be a blunt injury as there was no penetration of the skin. The precise mechanism could not be determined.

3. The forensic toxicological facts disclose that a blood sample was taken approximately 2 ½ hours after the incident and no drug tests were conducted. The level of alcohol was so low that the complainant did not have a detectable level. Except for a naïve drinker with limited tolerance for alcohol, one would not expect to see any gross physical symptoms of intoxication at those levels. An odour of alcohol on a person's breath is not a reliable indicator of the presence of same. Someone could be intoxicated due to the effects but yet not have a detectable odour of alcohol on their breath. This is greatly dependent on factors including the type of alcohol and/or food consumed and the time elapsed from the time of the last drink to the time of the incident. Other substances, including some drugs, can produce physical symptoms of intoxication. It is possible that someone who appears drunk is actually intoxicated by drugs. (sleep or some medical conditions could also produce physical symptoms of same). Furthermore, physical symptoms of intoxication are not specific only to alcohol and can be attributed to non-toxicological issues or conditions. Depending on the dose administered and the tolerance of the individual, Amitriptyline, Temazepam, Percocet (oxycodone) and Diazepam can all produce physical symptoms of intoxication, similar to drunkenness. Temazepam, Percocet and Diazepam are all Central Nervous System (CNS) depressants and can therefore cause depressed brain function, including intoxication. Also, if the drugs are co-administered, they would be expected to cause additive CNS depressant effects. Amitriptyline may also cause sedation. Similar to alcohol, the effects of the above drugs are dependent on concentration, tolerance and if co-administered with other CNS depressants.

The Issues

[10] The issues to consider are as follows:

1. What constitutes lawful arrest in the context of the Liquor Licence Act, R.S.O. 1990, c. L.19?

2. What constitutes reasonable grounds?

3. Did the defendant have reasonable grounds to believe the complainant was intoxicated?

4. Did the defendant have reasonable grounds to believe there was a risk to the complainant's or someone else's safety?

5. Did the defendant have reasonable grounds to believe the arrest was necessary?

6. Is the defendant entitled to the defence of mistake of fact?

7. Has the Crown proven the case beyond a reasonable doubt, following the analysis set out in seminal case of R. v. W.(D.), [1991] 1 SCR 742?

Summary of the Evidence

The Crown

Richard Moore

On the evening in question, he was going out for a walk between 10:30 and 11 p.m. This was his usual routine because it helped him sleep better. He had not been drinking any alcohol. He ordinarily takes medication before bed, but had not taken any before he went out that evening. As he was walking north on George Street from Dundas Street, he observed two officers investigating a man by a barricaded alleyway. As he was walking past and around the officer's bicycles on the sidewalk, a car quickly drove around the corner, causing him to jump back on to the curb. He reacted by saying words to the effect, "Boy, this used to be a nice area to live in". He continued walking north. He then heard voices yelling at him. He turned around and saw the officers. He asked them, "Are you yelling at me?" One of them said words to the effect "Yes, you are a racist and a motherfucker". Both officers had their hands on their guns, although they did not taken them out of the holsters. He "took off" northbound and then turned right on Gerrard into his yard. He tried to shut the gate as he was walking toward the front door. His glasses fell off. The two officers came up behind him. One of them grabbed his hair. He was flipped in the air and landed on his right shoulder and right side. He was then being kicked and stomped on in the kidneys on both sides and was kicked in the head The incident lasted approximately 10 to 15 minutes. He was yelling to the officers that he had "Hep-C" (Hepatitis-C). He believed he was kicked approximately 15 times. He then blacked out. When he came to, another officer, (Cst. Bigga) was telling him, "Stay down, buddy. Stay down". He tried to tell the officer that he could not because he was asthmatic and has COPD (chronic obstructive pulmonary disease), a lung condition. He was transported to the hospital in an ambulance. Two paramedics attended to him. He wanted the medical staff to take a blood test because he had been given a ticket for public intoxication. He claimed, however, that he had not consumed alcohol for over 9 years. Subsequently, he went to Court to fight the ticket, however, the charge was withdrawn, because the police officer did not attend.

He passed the police only once. He denied making any racial comments to them. He was never told that he was under arrest for anything, nor advised of his rights to counsel. He was not handcuffed. He did not make any racist remarks in the presence of the paramedics. By the time they arrived on scene he was very scared. He acknowledged he had a history of using illicit drugs. He had never seen either officer before. He disagreed that he was agitated or abusive toward them. He denied that he ever told them words to the effect, "You are the rich man's army. Why don't you leave us alone?" He denied that an officer told him to move along. He also denied that he turned around and came back in an aggressive and belligerent manner, mumbling to the officers words to the effect "Why don't you pick on the real gangsters?" He also denied that he got in their faces. The closest he came was when he passed them on the sidewalk, and when they chased him around the corner. He denied he was staggering. He was running because the police had their guns out. His right knee was already badly injured as a result of a torn ligament. He had no interaction with the officers other than making one innocuous comment about, "This used to be a nice neighbourhood". He disagreed that he said anything to aggravate them. He denied that he was belligerent, hostile or that he was swearing. He also denied that he was intimidating to the ambulance attendants. He never said anything to the effect that they were part of a conglomerate with the police. He did not utter loud racist slurs or swear profusely, or call either of them a "faggot". He did not make any racial slurs to the nursing staff at the hospital. He explained that he was racially mixed himself. He wanted the medical staff to take a blood sample because he had been accused of being drunk. He believed the officers acted this way toward them and unclicked their guns because of his appearance. He has tattoos, a long beard and long hair. When the defendant grabbed him by the hair and flipped him, he was trying to resist so he could get in the door of his residence. The defendant pulled him back, however. He lost his balance ending up on the ground on his right shoulder and head. He was in and out of consciousness, having been kicked in the head and stomped on. He acknowledged that he told the police he had Hep-C, and told them to stay away from him. He denied, however, that he said, "I hope you and your family get it and you all die". He explained that a good friend of his had died in custody a number of years prior to this incident, and this had an impact on him. He stated that he didn't hate or blame the police, but disliked them, although he does have respect for the law. When asked why he didn't like them, he responded with words to the effect, "Well, if you grew up being pushed around, and taken and thrown in Cherry Beach, what would you feel like?"

Cst. Mircea Bigga

He and his escort, Cst. Moreau, arrived on scene at 10:34 p.m., at which time they met Cst. Cruz and the defendant, who had a male under arrest for being intoxicated in a public place. He made his own observations that the individual was extremely belligerent, meaning verbally aggressive. He was swearing, calling the officers "real criminals", "pigs", and was using the "f word". In his opinion, the male was exhibiting the behaviour of an intoxicated person, either by alcohol or drugs. He knew this to be a high crime area, which includes Seaton House, the largest men's shelter in the country. He also knew there was a lot of drug activity in the area. He explained that if individuals are not high on drugs or alcohol, they usually do not want anything to do with the police, unless the intoxication provokes their behaviour, in which case they turn aggressive. He believed that the complainant may have been intoxicated because he was uncooperative, and kept repeating he was looking for his glasses. He could detect the smell of alcohol in the area, although he was unsure if it was coming directly from the complainant. He acknowledged that he had previously provided a statement to the SIU (Special Investigations Unit) investigators indicating there was a smell of alcohol coming from the complainant's breath. The basis for his opinion that the complainant had been drinking was due to the way he was talking and acting.

Cst. Julie Moreau

She and Cst. Bigga were dispatched to attend the scene to assist in the investigation and transport what she understood to be "a drunk". The first thing she noticed upon arrival was the complainant screaming loud. He had blood on his face. He kept screaming. She could not recall exactly what, but described him as belligerent. He was not listening to anything. To her, he exhibited the behaviour of someone under some kind of substance intoxication. Her instructions were to "stand-by", help look for the complainant's glasses, and to ensure the safety of everyone. She believed the complainant could have been either under the influence of alcohol, or could have been emotionally disturbed. He seemed very anxious about his glasses. He was told to sit down but got up to look for them.

Michael Vocilka

He is one of the paramedics who attended to the complainant. The radio dispatch information received was to the effect that they were to look for an individual who had been drinking and had fallen down. He explained that they respond to a large number of calls in this area, particularly at Seaton House and Allen Gardens, to the north. Most calls are alcohol-related, usually dealing with the homeless population. There are also drug-related calls and violence calls relating to assaults. He observed the complainant's face and chest area covered in blood. He was quite verbally aggressive. Most of the questions he and his partner asked were met with hostility, insults, racial slurs, and swearing. He described that, "He was kind of coming out with every word in the book". The complainant called him and his partner a "faggot". The police were also receiving the same barrage of verbal insults. It was difficult for him to offer his observations of the complainant's sobriety. He did not see him drink and did not recall if he smelled alcohol on his breath. He explained, however, that he deals with intoxicated individuals frequently. He believed the complainant to be intoxicated, or at least under the influence of something. He was not acting in a manner that was rational, reasonable, calm, or coherent. He has had significant experience dealing with individuals who have mental illness issues. The complainant's symptoms could equally have been due to this.

Sean Cook

When he arrived on scene with his partner, Michael Vocilka, he noticed the complainant's hands were cuffed behind his back. The radio call information received indicated that they would be dealing with an individual who was intoxicated or had been drinking. It was characterized as a "Bravo call", meaning an intermediate level of seriousness. He observed a cut on the right side of the complainant's forehead. He did not want to be examined. He stood up. He was verbally agitated and confrontational, and just wanted a ride to the hospital so he could be looked at there. His demeanour was threatening and loud, with an aggressive tone. At the hospital, he remained agitated and was walking around screaming, uttering threats, and racial slurs. His behaviour did not change in any way from the scene of the incident to or at the hospital. He accused him and his partner of being part of a conglomerate with the police. He remained tense, loud and aggressive throughout. He was not so much physically as he was verbally threatening.

Leslee Dinnall

She is the complainant's sister. She explained her understanding of his health. For quite a few years now, he has suffered long-term effects from various accidents while riding his bicycle, and as a result in being involved in a number of fights. He has quickly deteriorated. He is not as steady on his feet as a result of falling off his bicycle on his knees. He has always had issues with drug use, including marijuana, LSD, and heroin. She believes he is a crack addict and is also addicted to morphine. Regarding his personality and issues relating to aggression, she stated that, "Rick can go off so quickly and so violently for even some small things that I believe he could have walked away from". Regarding his attitude toward people of other ethnic backgrounds, she stated that he has always been prejudiced about race, if someone was not white. He was living with her for a period of time. She asked him to leave, however, because of his attitude about her children, because they were bi-racial. As far back as she can remember, he has always had a negative attitude. Approximately 15 years ago, a friend of his died while taken into custody by the police. Since that time, she stated that he has constantly held an attitude of hatred for the police. She has now chosen to keep him out of her life, and wants nothing to do with him. She did not know whether he was still a crack addict at the time of this incident.

Cst. John Cruz

[11] [12] The following is a summary of his oral evidence in this trial on December 3rd, 2012.

On the evening in question, at approximately 10:30 p.m. he and the defendant were on general patrol on their bicycles. He observed a male sitting on the sidewalk with his back against the fence on the east side of George Street, south of Gerrard. He was holding an open can of beer. He appeared to be intoxicated. He and the defendant were in the process of considering whether to arrest him for being intoxicated in a public place. While obtaining the man's name (Richard Boone), date of birth and other particulars, he heard some muttering and swearing. He noticed the complainant approaching them to his left. As he walked by, he said words to the effect, "Police, you're the rich man's army. Why don't you leave him alone." He told the complainant to move along, which he did. He continued walking south on the east side of George Street. He then turned around and walked back. He then said words to the effect, "You guys are fucking assholes. Why don't you pick on some gangsters." At this time, Cst. Cruz commented to the defendant, "this guy's loaded", meaning drunk or intoxicated. His reasons for believing this to be so were based on the complainant first walking by and acting in a bizarre manner, particularly since this is not a police-friendly area. Furthermore, when he turned around and came back the second time, he was stumbling and staggering. Although he could not smell alcohol, he knew, through experience, that many individuals in this area have alcohol, drug, and emotional problems, or a combination of these. He could not determine at the time what problems the complainant may have had. He thought, however, that it was most likely alcohol, and possibly an emotional or mental health problem. The complainant was belligerent and aggressive, but not physically threatening. Both he and the defendant followed him northbound on George Street, yelling at him to stop. He explained that they were now going to investigate him for being intoxicated in a public place. The complainant was unresponsive. He sped up. It looked as if was trying to run, but could not. He was staggering or stumbling, and was being unduly courageous and belligerent. He was still acting in a bizarre manner, and muttering under his breath. He believed the complainant was now arrestable. He wanted to apprehend him as far from Gerrard Street as possible, because it was a busy street. He also wanted to stay away from Allen Gardens on the north side of Gerrard Street, where other drug and alcohol activity was commonplace. The complainant turned right at the corner, and walked eastbound on the south side to the first house. He continued past the wrought-iron gate and up the walkway to the stairs leading to the front door. The defendant was also pursuing him, approximately 5 to 10 feet ahead. They were both yelling at him to stop. He observed the defendant place his hands on the complainant's left arm, in an effort to arrest him, while saying words to the effect, "Stop, stop, please stop". He and the defendant were not speaking to one another at the time. While pursuing the complainant, he explained that he had "tunnel vision", meaning that he was only focussing on him. The complainant immediately reacted and became resistant. He tried to pull his arm away, but was unable to break free. Cst. Cruz then came up to the right side and held his right arm. He continued to resist, and tried to elbow Cst. Cruz two or three times, but did not connect. He became assaultive, however, as they tried to get his arms behind his back to handcuff him. Cst. Cruz lost his balance, let go of the complainant's right arm, and fell to the ground on his left side. The complainant fell onto his stomach. Cst. Cruz got up and assisted the defendant in controlling and handcuffing him. Once they gained control, the defendant told him he was under arrest. There had been no physical contact by anyone prior to this. A call was placed to other units for assistance. An ambulance was called because the complainant had suffered cuts. It took approximately 5 to 10 minutes for back-up to arrive. While waiting, the defendant was able to obtain a name and date of birth of the complainant. He explained that they were not aware that the complainant actually lived in the rooming house where the incident took place, but only learned of this once at the hosptial.

On cross-examination, he confirmed that he has been a police officer in 51 division for just over 4 years. He has dealt with a number of intoxicated individuals in this area, almost on a daily basis. He is familiar with the powers of arrest under s.31 of the Liquor Licence Act. He has never been criticized previously for abusing these powers. When first investigating Mr. Boone, according to their training, both officers placed their bicycles in an upright position on kick-stands, so they would act as a barrier in case, as he described, "things go south". The complainant then injected himself into their space on two occasions. He could have walked around them, but it looked like he wanted to have a "beef" with them. He stated that the complainant "wasn't shy". He explained that he they were not sure what they were going to do yet with Mr. Boone. Whereas he described Mr. Boone as a "happy drunk", the complainant was belligerent, angry, and was unresponsive to their presence. This is why he told him to "move on". He was not looking to engage with the complainant and explained that had he just moved on, that would have been the end of the matter. He has been involved in other investigations of intoxicated individuals, despite there being no apparent odour of alcohol. This is not unusual in this area. It was his understanding that there are other substances which could form the basis of intoxication, including Lysol, Chinese cooking oil, and hand sanitizer. Some could be mixed with others. In this area, any form of alcohol, even if not legal or legitimate, could account for individuals being intoxicated. This supported his belief that the complainant was intoxicated. When pursuing the complainant, his powers of observation were concentrated on him. He did not pay particular attention to what the defendant was doing. They were both attempting to "herd" him from going onto Gerrard Street. When he turned right on the sidewalk, and then right again into the walkway toward the house, he believed this to be another attempt to get away from them. He was unresponsive to their commands. He explained that unpredictability is one of the characteristics exhibited by intoxicated individuals. At no time did the complainant ever tell them that the house he turned toward was his home. The area where the arrest took place was quite dark, and only lit by a street light, which was partially blocked by the foliage from the large tree in front of the subject premises.

The Defence

Cst. Edward Ing

[13] The following is a summary of his oral evidence in this trial on December 4, 2012.

He had 9 years of service up to the date of this incident. He had been on the community response team for one year. Prior to that, he had been assigned to the mobile crisis unit for two years. The area he patrolled was quite busy. Seaton House, on George Street, is a large facility servicing the homeless and individuals with various addiction issues. Those so challenged often wander the streets 24 hours a day. In the vernacular, this area is referred to as, "crack alley". Individuals are often in an intoxicated condition. Some will drink anything just for the alcohol content, such as hand sanitizer. This can be obtained free of charge from hospitals in the area. Other forms of alcohol not necessarily meant for consumption, include Lysol and Chinese cooking oil. Sometimes the alcohol content from these sources can be stronger than regular alcohol. In general, the response team might receive 4 to 5 calls per shift to deal with intoxicated individuals, as well as drug deals and prostitution issues. He is often required to use the powers of arrest under s.31 of the Liquor Licence Act. He has been involved in approximately 20 to 30 previous arrests under this legislation. There have been no previous issues relating to improper use of his powers. He had no previous dealings with the complainant.

At approximately 10:30 p.m. on the evening in question, he and Cst. Cruz were dealing with Mr. Boone on the sidewalk when the complainant came between them within a few feet. He was rather shocked by this. There was no need for the complainant to have done so, since there was ample room to move down the sidewalk otherwise. His initial thought was to question what was wrong with this individual. He heard Cst. Cruz tell him words to the effect, "get going". He could hear him mumbling as he passed by. He was not paying too much attention to him, however, because he was concentrating his efforts on Mr. Boone. Approximately 20 seconds later, he saw the complainant turn around and walk back on the same side of George Street, muttering and yelling. He saw him in his peripheral vision. He again walked between them. He was quite hostile, as he stated words to the effect, "Why don't you pick on some real gangsters?" Given his tone of voice, it was clear he had a "beef". He was quite confrontational. He came very close to them, as if he wanted them to hear what he was saying. The first time the complainant passed, he heard him say something about the "rich man's army". When he passed the second time he said something about "gangsters". He now formed the opinion that the complainant was more intoxicated, and even more of a problem than Mr. Boone. Although he could not smell alcohol, this was not unusual, given some of the other sources mentioned. He noticed the complainant shuffling up the street. It was not a normal or balanced walk. He believed he was intoxicated. Accordingly, he yelled to him words to the effect, "Hey. Stop. I want to talk to you." He thought the complainant was trying to get away from him. He has experienced this before, where intoxicated individuals may not be thinking of the consequences of their actions. He did not want him to get as far as Gerrard Street, a main thoroughfare, where cars travel at speeds between 50 and 60 kilometres per hour, where he might get hit by a car. He timed his approach so he would be able to stop the complainant before he got to Gerrard. However, he then turned right, and right again into the first walkway to a house. When he saw this, he described that his heart "jumped" into his throat. He thought the complainant was randomly going to go into this house in an effort to evade him. He did know this was a rooming house, or that the complainant actually lived there. He determined that he was now out of control because he was hostile and swearing at them. He made a decision to grab the complainant's left arm with both of his hands. He believed that the complainant was on the cusp of either coming at him or going into the house. He explained that he honestly believed he had no option at the time but to arrest him for the safety of all concerned. Despite his experience and training, it was still difficult to deal with him because he seemed to be so enraged. As he grabbed his arms, he immediately and aggressively pulled away, stating, "Get away. Get away from me". He tried to explain to the complainant that he was now being arrested for being intoxicated. It was a dynamic situation. He said to him words to the effect, "Now you're going in for Intox". He explained that people in this area would know that this meant he would be arrested and was going to the police station. He denied he ever grabbed the complainant's hair. As he was trying to gain control, the complainant was twisting and pulling away from him. He then fell on the ground, hitting his head. The defendant fell hard on him, still holding his arm. He did not intend to fall on him. The complainant would not submit. Instead, he put both hands under his body and chest area and was "turtling". He was still hostile and was yelling extreme profanity at them. He and Cst. Cruz had to manhandle the complainant to finally handcuff him. He told them words to the effect, "I've got Hep-C. I hope you get it. I'm going to get my lawyer after you". At no time did the complainant ever express a willingness to communicate or cooperate with them. Rather, it was just a stream of profanity. He called for an ambulance because the complainant had sustained a cut to the back of his head. When the paramedics arrived, he was hostile to them as well. They eventually had to place him in arm restraints on a stretcher, after several minutes.

On cross-examination, he acknowledged that he was interviewed by the SIU and provided a statement approximately 4 months after the incident. He confirmed he has received training to de-escalate situations. Tactical communication is one such option. Along the continuum of use of force methods, disengagement, by taking oneself out of a situation, is also a technique. He explained that it was "normal" to see intoxicated people on most every shift. Every night was just about the same, whether or not on a weekend. This incident took place on a Friday night. The activity in the area was also the same, whether during the day or night. He started his shift at 4 p.m. It was to have finished at 2 a.m. After the complainant passed by the second time, he now believed he had reasonable grounds to charge him with public intoxication because he walked between them when he had ample room to walk around, was shuffling, and wanted to be confrontational. He was concerned, from a public safety standpoint, that he might continue to cross Gerrard Street and go into Allen Gardens, another notorious area where individuals use alcohol and drugs. He believed that at this point he could have at least given the complainant a ticket without necessarily arresting him, however, when he continued to walk in the direction of the house, the situation became more difficult. He knew this to be a very high crime area, and that a number of people, suprprisingly, did not necessarily lock the doors to their homes. He did not think that the complainant was merely going home, but was trying to flee from him. He now believed him to be a danger either to himself or others. He tried to halt his advancement by asking him, "What is wrong with you?" The complainant continued a stream of profanity and was in a rage. He explained that the complainant was at the point of being out of control and then either going into the house, or coming back at him. The Crown challenged him, asking how he was de-escalating by asking what was wrong with him, particularly when he knew the complainant had a "beef". He explained that he did not think he was taunting him, but just exhibiting weird and disconnected thinking. The Crown also challenged him about omissions from his notes and from his statement to the SIU. He acknowledged that there was nothing noted about the complainant being belligerent or enraged, and there was nothing in his statement about him swearing. He had a clear recollection of all of this, however. He disagreed that he was now merely adding in evidence and "filling in the gaps". He also disagreed that his statement was inaccurate.

The Crown squarely put to him the theory that he was tired, having been on shift for approximately 6 hours. The complainant came along and made rude comments to him and was interfering with the investigation of the other male. He determined that the complainant was being a "jerk", rather than believing he was intoxicated, and he did not want him to get away with this. Going after him had nothing to do with any safety concerns. The defendant disagreed with this.

The Positions of the Parties

The Defence

[14] The agreed statement of facts disclose that the effects of the various drugs ingested by the complainant could mimic alcoholic intoxication.

[15] It is conceded that the credibility of the complainant had been significantly impeached in the previous trial.

[16] By attempting to resist arrest, the complainant was at least the co-author, if not the author of his own misfortune.

[17] His confrontational and aggressive demeanour, and apparent intoxication, described by the defendant, is substantially corroborated by not only Cst. Cruz, but all other witnesses who had contact with him.

[18] The purpose and importance of all of the evidence in addition to that of both officers, is not meant as a character assassination of the complainant. Rather, it is to demonstrate and confirm that the defendant's observations and actions were accurate and appropriate.

[19] Furthermore, the evidence of the complainant's sister is important because it exposes his unfortunate drug history and confirms that he had an awkward gait while walking. Her evidence also sheds light on the animus he harboured for the police.

[20] It is not so much what the complainant may have said to the officers, but his behaviour, which was indicative of an individual capable of quickly becoming confrontational, and that his actions were consistent with one being inebriated.

[21] On the basis of the W.D. analysis, the defendant's evidence should be accepted. The Court should not evaluate his actions against a standard of perfection. The reality is that police officers are required to act quickly and make decisions on the spot. Context is important. This is an area of the city known for these types of situations and scenarios. Unfortunately, and somewhat tragically, this is what the police have to contend with on a regular basis. There is no good reason for the Court, therefore, to reject the defendant's evidence. He testified in a clear and straightforward manner. He applied the provisions of the Liquor Licence Act as he knew them. He honestly believed the complainant was intoxicated. The Court should also note the wording of the legislation which allows for the qualifying phrase, "in the opinion of the officer". It, therefore, recognizes and contemplates the subjectivity of the officer's decision. His actions were in furtherance of protecting the safety of any person. So too, was the arrest.

[22] Therefore, if the Court accepts the defendant's evidence, or has a reasonable doubt as a result of it, the Court is duty-bound to acquit.

[23] It is important to note that there are no existing cases of a similar nature which can provide guidance in this analysis.

[24] Furthermore, the defendant is entitled to the benefit of the defence of mistake of fact. The cases of R. v. Pappajohn, [1980] S.C.J. No. 51, and R. v. Davidson, [1971] B.C.J. No. 651, stand for the proposition that matters involving mistake of fact, or mixed fact and law, can result in acquittals where it amounts to a belief in a state of affairs, which if true, would have provided some justification for the actions. Therefore, even if the Court finds the complainant was not intoxicated, and was not arrestable, the defendant is still entitled to an acquittal if the Court finds that he honestly believed what he was doing was lawful. Determining reasonableness is merely an evidentiary consideration in an effort to support the finding of an honest belief.

The Crown

[25] The Crown submits, on the other hand, that this is not a case of mistake of fact, or mixed fact and law. If anything, it may be a mistake of law, in which case there is no defence available.

[26] At most, the complainant may have been verbally confrontational, but was never physical. In fact, the Court does not need the complainant's evidence at all in order to find the defendant guilty of this charge. Both officers acknowledged that he did nothing physical to them.

[27] Intoxication is a much higher threshold level than impairment. It is not enough for an individual to appear to be so. There must be some level of certainty that he has lost his capacity to prevent either himself or others from risk or injury. The Crown has, therefore, disproved the fact that the complainant was intoxicated. The only indicator was his gait, by staggering or stumbling somewhat. There were no other factors. That he failed to stop when the police yelled at him is of no moment. Furthermore, there were no grounds to believe that his safety, or the safety of others was in peril once he turned onto Gerrard Street or toward the residence on the corner.

[28] The defendant's safety concern was that the complainant might go inside the house, or alternatively, come at him. It is important to note, however, that he did neither. This shows that the defendant, "jumped the gun". Furthermore, when he asked what was wrong with him, how was the complainant supposed to respond? In other words, the Crown asks rhetorically, "How did this statement de-escalate the situation?" The complainant was not unresponsive. He told the defendant, "take your hands off me."

[29] Although called as a Crown witness, the Court should not place significant weight on the evidence of Cst. Cruz. He is obviously a favourable witness to the defendant. Given the role reversal, the probative value of his evidence is lessened. It was not difficult to have him agree with the defence theory. Cross-examination of a witness who is not adverse in interest, is not the same as being able to question witnesses with a view to ascertaining the truth.

[30] The Crown submits, therefore, that what really happened in this case, is that the defendant was accustomed to finding intoxicated people on a daily basis in this area, and instead of engaging the appropriate process, he jumped to a conclusion. Although the complainant may have been behaving badly, it seems that the defendant wanted to teach him some manners. This is not to say that he necessarily set out to assault the complainant, however the situation spiralled out of control. It resulted in an unlawful arrest. In fact, the Crown submits that the defendant did not even have grounds to issue a ticket to him for being intoxicated in a public place.

[31] There must be more than a subjective opinion by the defendant to constitute reasonable belief.

[32] Because he laid his hands on the complainant first, this is, prima facie, an assault, unless his authority to engage with him was lawful. The Crown submits, however, that this was not a mistake of either fact or law. The defendant had no lawful authority to arrest the complainant. Therefore, the charge has been made out against him.

Defence Reply Submissions

[33] Counsel respectfully submits that the Crown is incorrect in its legal analysis of mistake of fact.

[34] There is no reason for the Court to disbelieve the evidence of Cst. Cruz. He took an oath and gave his evidence like any other witness.

[35] The defendant does not have to be right in order to escape criminal liability. This is not an absolute or strict liability offence.

[36] When evaluating the evidence, the Court should consider that there was no videotape of this incident. Quite obviously, the analysis in the relative safety and comfort of the courtroom does not capture the dynamics at the scene. Therefore, as a matter of common sense, the Court should accept that this was a volatile and unpredictable situation as to what the complainant was going to do.

[37] The defence questions how the defendant could, therefore, have "jumped the gun". He was dealing with an individual who wanted to confront him. He was approximately the same weight as the officer. This was not a mismatch. By asking the complainant what was wrong with him, this was not said in an angry tone. The complainant responded by tensing up. A subsequent attempt to arrest him was, therefore, reasonable. There was nothing aggressive about it. The defendant merely grabbed the complainant's arm.

[38] Despite the various definitions of intoxication discussed in the extant case law, all of them seem to amount to showing that an individual has lost, or is losing control, or is a nuisance to himself or others.

[39] The defendant was merely doing his duty, interacting with a difficult citizen. He acted appropriately. In the alternative, even if the Court finds that he did not, given the threshold in a criminal forum, he is still entitled to the benefit of the doubt, having made an honest mistake.

Analysis

Issue 1 – What Constitutes Lawful Arrest in the Context of the Liquor Licence Act?

[40] S. 31(4) of the Act makes it an offence to be in an intoxicated condition in a place to which the general public is invited or permitted access.

[41] S.31(5) gives a police officer a limited power of warrantless arrest if he finds a suspect committing the offence, and where, in his opinion, an arrest is necessary for the safety of any person, including the suspect himself.

[42] It is important to note that although substantial impairment will suffice for an offence under (4), it is not enough under (5). In other words, to be arrestable, intoxication connotes a much higher threshold of a virtual loss of control of one's faculties.

[43] To be a lawful arrest, reasonable grounds to believe must exist in 3 ways:

1. That the complainant was intoxicated in a public place;

2. That he was a risk to his, or someone's safety; and

3. That the arrest was necessary, in the sense that there were no alternative reasonable ways to prevent such risk.

[44] Additionally, s.25 of the Criminal Code should be considered in the analysis. The defendant is entitled to the defence of justification, unless the Crown disproves reasonable grounds in relation to any of the above-noted criteria. Put another way, the Crown must prove beyond a reasonable doubt that the defendant could not reasonably believe, objectively, that the complainant was intoxicated, or that there was a risk to anyone's safety, or that the arrest was necessary.

Issue 2 – What Constitutes Reasonable Grounds?

[45] It has always been a fundamental tenet of the rule law that the police, in carrying out their general duties, have limited powers, and are entitled to interfere with the liberty of an individual, only to the extent authorized by law. They cannot exercise their powers of arrest indiscriminately.

[46] The exercise of an officer's judgement, in exigent circumstances, demanding urgent and immediate attention or action, is often difficult to determine. The police have to act and respond quickly to the facts and circumstances as they see them, in the moment. Where, in hindsight, it may be ill-advised, is not enough.

[47] Two pre-conditions must be met:

1. That subjectively, meaning personally, there were reasonable grounds on which to base an arrest. This amounts to an actual or honest belief.

2. These grounds must be justifiable from an objective standpoint. This is an additional safeguard against arbitrary arrest. The question is whether the officer's opinion is supported by objective facts. A reasonable person, placed in the position of the officer must be able to conclude that there were, indeed, reasonable grounds for the arrest.

[48] The words, reasonable grounds, are not some magical incantation, or formula, which must be articulated precisely by an officer.

[49] Reasonable grounds does not amount to proof beyond a reasonable doubt, or proof on a balance of probabilities, nor is it even the equivalent of a prima facie case. Rather, it is where credibly-based probability replaces suspicion. It must be more than a guess or a hunch, however.

[50] In dealing with probabilities relating to human behaviour, trained officers are entitled to draw inferences, and make deductions drawing on experience.

[51] Reasonable grounds is, therefore, not an onerous threshold. However, it must not be inflated to the context of testing trial evidence, nor must it be so diluted, however, as to threaten individual freedom.

[52] All too often, however, the Court is invited to engage in minute decisions about an officers' opinion which was developed on the spot, without the luxury of judicial reflection.

[53] The existence of reasonable grounds, should not devolve to a simple mathematical exercise of comparing factors supporting the decision versus those pointing in the opposite direction.

[54] Therefore, the analysis of the issue of intoxication should not involve the equivalent of a "scorecard", noting which indicia are present and which are absent. In other words, the absence of some factors does not necessarily undermine a determination of reasonable grounds based on the observed indicia, and available information.

[55] It is a highly fact-specific exercise to be assessed on its own circumstances.

[56] The Court is entitled to take a common sense approach.

[57] It is important to note that it is not whether the officer's beliefs or observations were completely accurate, but whether they were reasonable at the time, in the circumstances. Furthermore, the issue is not whether the officer could have conducted a more thorough investigation, but whether he was entitled to draw the inferences and make deductions drawing on his experience and training the way he did.

Issue 3 – Did the Defendant Have Reasonable Grounds to Believe the Complainant Was Intoxicated?

Intoxication – The Governing Principles

[58] The Court has considered the cases of R. v. Hagarty, 2005 ONCJ 317, [2005] O.J. No. 5462; R. v. Proulx, [1988] O.J. No. 890; R. v. Gallant, [2000] O.J. No. 5672; R. v. Giri, [2001] O.J. No. 3307; and Radovici v. Toronto Police Services Board, 86 O.R. (3d) 691.

[59] The following points emerge as to what constitutes intoxication:

1. It is not enough that an individual merely appears to be under the influence of alcohol.

2. Even being impaired is not arrestable. The law allows for impairment without criminal or quasi-criminal consequences.

3. Intoxication is a heightened or an extreme level of impairment, where one's physical and mental functions have been substantially affected.

4. It should reach the threshold of stupefaction, meaning an overwhelming or senseless state, to the point where one has lost capacity to prevent injury to himself, or be a danger, nuisance, or disturbance to others.

5. This means that one is oblivious, or in a stupor, or dazed.

6. Simply put, in more common parlance, an individual must be very drunk.

Application of the Principles to the Evidence

[60] On balance, the Court finds that the defendant had reasonable grounds, both subjective and objective, to believe the complainant was intoxicated for the following reasons:

1. It is true that opinions regarding intoxication can be fraught with difficulty. They are highly subjective, while the objective observations to support opinions are often difficult to parse and describe. The Court has carefully considered the probity and veracity of these claims by the defendant. He observed what might be considered as some of the classic signs of intoxication. The Court did not have the impression that his observations or considerations were being made in a perfunctory or mechanical manner of a mere checklist of the usual indicia, but rather, a genuine opinion formed on an individual basis specific to this complainant.

2. The complainant's overall affect and demeanour, and negative behavioural traits, constitute those of an individual in a highly agitated state who might well have "overconsumed". The most significant and weighty badges include his belligerence, lack of cooperation, stumbling, rudeness, and his approaching the defendant in an aggressive manner. This constellation of factors militates in favour of meeting the threshold level that he was not in reasonable control of his faculties.

3. The totality of the circumstances relied on by the defendant, against his background of experience, are also objectively tenable. It is interesting to note that the testimony of all of the other witnesses (save and except the complainant's sister) held the same belief. Surely this supports the necessary objective requirement, that a reasonable person, standing in the shoes of the officer, would make the same determination. Of course, none of these other witnesses, other than Cst. Cruz, observed the complainant prior to his being injured. The Court considered whether the other witnesses were making their observations and evaluations on the basis of "confirmation bias". The radio dispatch information was being generated by the defendant and Cst. Cruz. Therefore, to a degree, all others were expecting to see someone in an intoxicated state. However, this notwithstanding, the Court finds that not all of these witnesses could have arrived at the same belief by only employing such a conscious or subconscious bias.

Issue 4 – Did the Defendant Have Reasonable Grounds to Believe There Was a Risk to the Complainant's or Someone Else's Safety?

Risk of Safety – The Governing Principles

[61] Risk, and risk-assessment can be expressed as a continuum.

[62] The concept of safety can have different applications, depending on the particular circumstances of the individual.

[63] For example, a lesser degree of intoxication could make safety a reasonable concern, if it is coupled with a set of circumstances that poses a high risk of injury, such as participating in a dangerous activity like driving or jumping off something.

[64] In the circumstances of the present case, there are two ways in which the safety concern can be established. The first is finding that the complainant was stupefied and so incapacitated that he could not prevent injury to himself or avoid being a danger to others. The second is whether the act of walking up George Street and then on Gerrard and turning to go into a house is such a high risk activity that could pose as an imminent risk to others.

Application of the Principles to the Evidence

[65] The Court finds, on balance, that it was not unreasonable for the defendant to believe that the complainant was a risk to himself or others. Given his agitated state, he was volatile and unpredictable enough that his walking up the street, and potentially into traffic could not be a remote possibility. The safety of others came into focus once he turned to go into the house.

[66] With the unerring eye of hindsight, an obvious "soft spot" of the defence is to ask the obvious rhetorical question, "why didn't the defendant merely ask the complainant where he lived, or alternatively, take more time to investigate further what his intentions were?"

[67] This is the burning question. To have done so would have made his grounds more reasonable. However, absent this step, in the fray, it does not diminish the reasonable belief that the defendant otherwise held at the time.

Issue 5 – Did the Defendant Have Reasonable Grounds to Believe the Arrest Was Necessary?

Arrest – The Governing Principles

[68] The extent to which police are entitled to interfere with the physical integrity of an individual during arrest or detention is determined by the circumstances. Often, the circumstances are related specifically to the conduct or actions of the complainant.

[69] We ask a great deal, and set a high standard for police officers, with the expectation that they will maintain law and order with a firm, but even hand. They regularly accept the risk of harm to themselves in an effort to discharge their duties and fulfil their societal expectations. We must be careful, however, not to impose an unrealistic standard, thereby impeding them in the conduct of their work.

[70] However, the greater the departure from the standards of behaviour required by law, the heavier the onus on an officer to show why he thought it necessary and reasonable to effect an arrest. The evidence to justify such behaviour must be apparent in the record, and must have been available to him at the time he chose his course of conduct.

[71] Arrest must not be the first response.

[72] Furthermore, it must not be implemented as a form of punishment.

[73] Therefore, an officer must have adverted to considering other, and less intrusive ways to deal with the issue, short of arrest, and to eliminate these as viable options or alternatives.

[74] Both the situational factors, and the intervention options available to an officer, follow a continuum, from uncooperative behaviour, to resistant behaviour, and then combative behaviour.

[75] Uncooperative behaviour may include failing to comply with the directions or commands. Resistant behaviour falls into two potential descriptive categories. The first is passive resistance, where the individual remains stationary or holding onto an object. Active resistance involves the use of physical force by a suspect, in an effort to get away from the control of the officer by pushing, pulling, or running away. Combative behaviour involves threatening or delivering force against an officer.

[76] The levels of intervention of force by the police, moving up the same continuum, include officer presence; verbal intervention; empty hand control (soft); intermediate devices and empty hand control (hard). The police are taught to use one level of force higher than the demonstrative resistance of the suspect.

[77] It should be noted, however, that the police should not have to measure or weigh their responses to a nicety, meaning with exactitude, accuracy, or precision. Officers are often involved in dynamic, fluid, and rapidly changing situations which are often unpredictable. Of course, this requires constant vigilance, and continuing re-evaluation of the dynamics.

[78] Ultimately, the Court must determine whether this was an "Arrest first. Ask questions later" situation.

Application of the Principles to the Evidence

[79] The Court finds that the defendant did advert to alternative and less intrusive measures, and did not immediately "jump" to arrest.

[80] The defendant did not "ask questions later". He asked one first. His question, or statement, "what's wrong with you", wasn't so much demanding or begging a response, as much as an expression that he could not understand how the situation had become so volatile, and why the complainant had been acting the way he did. While asking this, it is fair to conclude that he was trying to decide how to handle the situation and what his next move or moves ought to be, if any.

[81] The Court finds, therefore, that the defendant was not acting precipitously, or in a cavalier manner. His actions were not gratuitous, excessive, or merely in the nature of "punishing the complainant", or giving him a lesson in manners, as the Crown has characterized it.

[82] Although it may be fair to conclude, with the benefit of hindsight, that these were not the most pressing, urgent or demanding of circumstances which absolutely required an arrest, this does not diminish the reasonable belief which the defendant otherwise held.

Issue 6 – Is the Defendant Entitled to the Defence of Mistake of Fact?

Mistake of Fact – The Governing Principles

[83] The essential question is whether the belief entertained by the defendant was an honest one. It is seen as a negation of guilty intention by one who acts innocently, but pursuant to a flawed perception of the facts, but nonetheless, may have committed the actus reus of the offence. The existence, or lack of reasonable grounds for such belief, is merely relevant evidence to be evaluated in determining this.

Application of the Principles to the Evidence

[84] Whereas the defence placed significant emphasis on this issue, the Crown did not, other than to advance the position that this was a mistake of law only, in which case, there was somehow no defence available. The Court has not been provided with sufficient authorities on which to make a more purposive or principled determination.

[85] Accordingly, the Court agrees with the defence position that this defence is available.

[86] On that basis, the Court finds that there was an honest mistake of fact.

Issue 7 – Has the Crown Proven the Case Beyond a Reasonable Doubt, Following the Analysis Set Out in W.D.?

The Governing Principles

[87] The Court is not to evaluate or assess the evidence of the witnesses as an either/or choice between the two sides.

[88] Experience tells us that one of the best tools to assist in determining credibility and reliability is the careful and repeated testing of the evidence to see how it "stacks up", so to speak. In other words, how does a witness' account stand in harmony with the other evidence, while applying the appropriate standard of proof?

[89] The Court must also direct itself that it must not apply a more strict standard of scrutiny to the evidence of the defendant than that used to assess the evidence of any other witness.

[90] The framework for analysis follows a 3-step process:

1. Does the Court believe the defendant's testimony?

2. Even if the Court does not believe it, does it raise a reasonable doubt?

3. Even if it does not raise a reasonable doubt, does the other evidence prove the defendant's guilt beyond a reasonable doubt?

If the answer is, yes, to number 1 or 2, the Court is duty bound to acquit. If the answer is, yes, to point 3, a finding of guilt will follow.

[91] It is also important to understand that no witness is entitled to an assessment of his or her credibility in isolation from the rest of the evidence. Rather, the defendant's evidence must be considered in the context of the evidence as a whole.

Application of the Principles to the Evidence

Does the Court Believe the Defendant's Testimony?

[92] The Court cannot find that the defendant's evidence should be rejected.

[93] There was an air of reality to his explanation. It was not improbable or implausible. He did not exaggerate, overstate, or embellish the details of this incident.

Even if the Court Does Not Believe It, Does It Raise a Reasonable Doubt?

[94] The Court finds that, in any event, there is a reasonable doubt. It is trite to say that many matters in a criminal prosecution are not black or white, but often a troubling shade of grey. This middle ground, therefore, results in the Court being in a state of uncertainty of not knowing one way or the other. In other words, after weighing the evidence, the Court is left with a nagging reasonable doubt that prevents it from being morally certain of his guilt.

[95] Some of the factors that troubled the Court about the defendant's evidence include the following:

1. He may have taken what the complainant said to him personally, as opposed to professionally.

2. He may have lost his "cool" or composure.

3. The level of risk or potential risk to anyone may not have been as heightened as he may have perceived it.

4. The arrest provisions of the Act may have been used as a mere "catch-all".

5. The words he chose to attempt to de-escalate the situation were not the most comforting or caring, but were somewhat accusatory.

[96] However, the factors that militate in favour of the defendant having reasonable grounds and/or making an honest mistake include the following:

1. He was not a rogue officer or off on a frolic of his own.

2. Being on the bicycle unit, against the background of 9 years of experience, presupposes that he is someone who understands what it is like to be on the "front lines", and who has a practical understanding of the human condition.

3. This was not idle time. He was dealing with another investigation when he was at least interrupted, if not thwarted from continuing.

4. He did not have time on his hands, so to speak, or anything better to do before the end of his shift than to make "sport" of the complainant. In fact, he could have ignored the situation altogether and let the complainant pass since he already had his hands full investigating Mr. Boone.

5. It is important to note that the defendant and complainant had never met one another before. Therefore, there could not have been any notion of "payback" because of any previous resentment.

6. It is also logical to accept that he had an honest belief that the complainant, by his behaviour, could be capable of doing something to himself or others, including the officers. Unlike Mr. Boone, who presented as a "happy drunk", the same could not be said of the complainant.

7. He immediately called, or did not prevent a call, for extra units, and was not trying to be a "hero" to deal with this situation himself. This demonstrates that he was not looking for a way to personally or privately administer a form of "summary justice" to the complainant.

8. In the aftermath, he contacted, or at least was aware that the ambulance was called immediately. This also demonstrates that he was not trying to cover up or hide the fact that the complainant sustained injuries, or that he was concerned that by facilitating medical attention for him, this would disclose that he had done something illegal to him.

9. The Court finds that the actions and behaviours of the defendant were not in furtherance of what might be characterized as a "noble cause". This happens when one is trying to do something for the greater good, particularly if the target suspect is unsavoury, or the activity he is involved in is not particularly popular.

Conclusions

[97] In the final analysis, the Court is unable to untangle the welter of conflicting evidence. The Court must keep in mind all of the circumstances of the situation, and must engage in a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements.

[98] Although the defendant could perhaps have handled the situation differently, and no doubt would, the Court is certain that this process over the last 3½ years has had a most salutary effect on him.

[99] It is important to recognize, too, that a marginalized citizen, who otherwise should be entitled to the law's protection, received significant injuries. The Court is not unsympathetic to his ordeal. Whether or not he was the author of his own misfortune cannot be determined definitively.

[100] In a free and democratic society, the exercise of an individual's right to come and go in safety depends, in large measure, on our peace officers. Although they are constantly at risk in their efforts to preserve the peace, they also need the cooperation and respect of the community. This, however, must be deserved, and depends on the relationship which exists between a community and its local police force.

[101] For all the foregoing reasons, the charge is dismissed.

Released: January 10, 2013

Justice S. R. Clark