R. v. Tran and Bowie

Ontario Court of Justice

Date: 2013-10-11

Court File No.: Ottawa East Region No. 11-30350

Parties

Between:

Her Majesty the Queen

— AND —

Thanh Tran and Colin Bowie

Before: Justice Charles H. Vaillancourt

Heard on: April 29 and 30; May 1, 2, 3, 6, 7, 8, 9, 14, 15 and 16, 2013

Reasons for Judgment released: October 11, 2013

Counsel

Andrew Cappell — counsel for the Crown

Michael Edelson and Connie D'Angelo — counsel for Thanh Tran

Rodney Sellar and Michelle O'Doherty — counsel for Colin Bowie

VAILLANCOURT J.:

Charge

[1] Thanh Tran and Colin Bowie entered pleas of not guilty to the charge that they on or about the 13th day of August in the year 2011 at the City of Ottawa in the said Region did in committing an assault upon Hugh Styres cause bodily harm to him contrary to the Criminal Code.

Overview

[2] Hugh Styres resided in a men's shelter in the downtown area of Ottawa.

[3] On August 12th, 2011, he worked as a casual worker.

[4] Once he had finished working on that day, he purchased eight king-sized cans of beer.

[5] Thereafter, Mr. Styres decided to seek out some of his friends who he believed would be found in the general area where an outdoor concert was being performed.

[6] Prior to arriving at the concert venue, Mr. Styres consumed six of his beers. He hid the remaining two for later consumption.

[7] Mr. Styres listened to the music for a couple of hours. When he was leaving the concert area, he retrieved his secreted beers and consumed them. Mr. Styres was also the beneficiary of at least five other alcoholic beverages provided by other concert goers.

[8] Not too surprisingly, Mr. Styres' memory "kind of blanked out". Mr. Styres advised the court that he seemed to recall obtaining a bottle of Listerine at a convenience store in the vicinity of Henderson and Osgoode and drinking it.

[9] The next recollection that Mr. Styres had was waking up in a hospital.

[10] He has no memory of interacting with Constables Tran and Bowie. Likewise, he has no memory of not following the instructions of Stephen Mahon, an advanced E.M.S. attendant.

[11] Mr. Styres was transported to hospital where he was seen by Dr. Diane Owen. Dr. Owen advised the court that Mr. Styres was uncooperative and belligerent during her assessment and that he was cursing at all of the attending medical team.

[12] Dr. Owen was able to assess Mr. Styres' head injury. It was determined that he should be transferred to another hospital to allow a plastic surgeon to examine him and to determine an appropriate medical course of action.

[13] Blood work determined that Mr. Styres had a blood/alcohol concentration level of 404. Such a level would be fatal to most individuals. However, very experienced drinkers have been known to reach these "fatal readings" and survive.

[14] Mr. Styres confirmed that he has been an alcoholic of long-standing. He also stated that he is a binge-drinker and has been consuming alcohol to excess since he was nineteen-years old.

[15] As a result of his alcohol consumption on August 12-13, 2011, Mr. Styres ended up reclined on the sidewalk near the intersection of Henderson and Osgoode Streets when River Doucette and her mother, Tasha Doucette, came upon him around 6 a.m.

[16] Tasha Doucette and her daughter had been returning from a nearby hospital where River Doucette had been treated for an allergic reaction.

[17] Tasha Doucette was concerned that her daughter had to see Mr. Styres' plight and she wanted to get her daughter home as quickly as possible.

[18] Tasha Doucette agreed that she was concerned that the man on the sidewalk might wake up with a start and become violent and she did not want an incident to take place that involved her and her daughter.

[19] However, River Doucette expressed concern about Mr. Styres' situation and persuaded her mother to dial 911 for assistance.

[20] As a result of this initial call, Constables Tran and Bowie attended on scene.

[21] Tasha Doucette indicated that both officers arrived in the same police cruiser. River Doucette advised that the officers arrived in separate cars.

[22] Unlike her mother, River Doucette wanted to remain to see what transpired.

[23] Tasha Doucette and River Doucette observed the subsequent events from the other side of the street behind some bushes or beside some bushes or behind and beside some bushes.

[24] River Doucette stated that from her location she could not hear the exact words exchanged between the officers and Mr. Styres but she agreed that Mr. Styres sounded agitated when he was being awakened.

[25] In examination-in-chief, River Doucette indicated that:

"By the time he was fully upright, he was swaying a lot …he looked like he was trying to find his balance with his hands. It looked like he was still intoxicated a little bit."

[26] This observation is consistent with the statement that River Doucette provided to the SIU wherein she said:

"And, the guy was disoriented. It looked like he was still really drunk …"

[27] After Mr. Styres became upright, there was some kind of interaction between Mr. Styres and the two police officers. Mr. Styres was grounded and began to bleed rather profusely from his head.

[28] Constable Bowie summoned an ambulance at 6:06:51 and it arrived on scene at 6:10:28.

[29] Constable Bowie advised dispatch of the following information:

"Yeah. He's drunk and he took a swing at Constable Tran here. We're gonna' need a sergeant.

No, it's for the male on the street. He hit his head on the sidewalk when we grounded him."

[30] Almost immediately after Mr. Styres was grounded, Tasha and River Doucette confronted the officers with comments suggesting police brutality.

[31] Tasha Doucette advised that Constable Bowie stated, "You saw him hit me." Tasha's response to that statement was, "No, he didn't hit you."

[32] River Doucette stated that Constable Bowie told her, "You saw him push me." River's response was, "I said, no I didn't. I saw you force his head into the fucking pavement …"

[33] Tasha Doucette then made considerable effort to contact The Ottawa Citizen to report her observations but without success. At 6:15:08, she eventually made another 911 call to report the alleged police brutality.

Reliability and Credibility of Tasha Doucette's and River Doucette's Evidence

[34] The Crown relies heavily on the evidence of Tasha and River Doucette to establish the guilt of Constables Tran and Bowie beyond a reasonable doubt.

[35] The defence contends that the evidence given by both Tasha Doucette and River Doucette is such that it lacks both credibility and reliability.

[36] In R. v. Morrissey, Doherty J.A. of the Ontario Court of Appeal explained the distinction between credibility and reliability as follows:

"Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of the witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of the witness's testimony, one speaks of the reliability of that testimony. Obviously, a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination."

[37] Concerns with either credibility or reliability and/or both, can and often will affect the extent to which a finder of fact can depend on a witness to find facts in support of one position or another.

[38] While minor inconsistencies in a witness's evidence may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. Reliability concerns often arise where there are a number of inconsistencies in the witness's own evidence and/or a number of inconsistencies between the witness's evidence and the testimony of other witnesses.

[39] Counsel for the accused provided an extensive review of the evidence given by both Tasha and River Doucette to which the Crown responded. I do not propose to comment on each and every point raised. However, I shall deal with a number of areas in the evidence that give me concern.

[40] For ease of reference, I shall direct my attention to the following headings: (1) Credibility (2) Vantage Point (3) Tainting and Collaboration (4) Internal Inconsistencies (5) Admissions and Statements Addressing Reliability by the Witnesses Themselves (6) Bias, Impartiality, and (7) Cult of Celebrity.

[41] Before I examine the aforementioned headings in detail, it must be noted that Tasha Doucette gave her evidence-in-chief and was partially examined by Mr. Edelson in cross-examination. Due to stress, Tasha Doucette did not return to complete her cross-examination by Mr. Edelson and she was not cross-examined by Mr. Sellar at all. All counsel agreed that the court would rely on the evidence heard and that Tasha Doucette would not be returning to the stand.

[42] I have no doubt that Tasha Doucette's inability to return to the witness stand in large part was the direct result of a very well-prepared, competent and thorough cross-examination by Mr. Edelson. An apt analogy of the cross-examination would be the peeling of an onion layer by layer. Of course, before there can be any degree of success, there must be useful material to examine. In the case at bar, the defence indeed was provided with an impressive array of areas to explore.

(1) Credibility

[43] Tasha Doucette's credibility was put in issue when she first spoke to the Ottawa police shortly after the injury to Mr. Styres. She identified herself as Tasha Dawn. She never made any effort to correct this in subsequent conversation with the Ottawa force. The Ottawa police discovered Tasha's true identity when they saw her being interviewed in the media.

[44] In fact, when River Doucette gave her first name to the police, Tasha interjected and gave River's last name as Dawn.

[45] It is interesting to note that River Doucette did not correct the false information regarding her surname that her mother had provided to the police.

[46] I reject River Doucette's evidence when she said she did not recall being asked her name and that she was unaware of what her mother was telling the officer until after they arrived back at the apartment. She was right there! It might very well be that the reason why Tasha gave a false name was conveyed when they went home. The exchange between Investigator Shannon from the SIU and River puts the issue into context.

Q. I apologize. The police officer that spoke to your mother barely spoke to you, did he speak to you?

A. No, he just asked my name.

Q. He asked your name?

A. And, then I said River, and then my mom cut in and said my last name which wasn't true, but she was – she told me afterwards that she was – she told me afterwards that she was scared that this case would be – I don't know, that they might do something, and she didn't like the fact that they knew our real names so she gave them a fake name."

[47] Tasha Doucette initially advised the court that she and her daughter, River, had not met with a Professor Darryl Davies at Roosters Restaurant and discussed the case before the court. Eventually, she indicated that in fact she remembered such an encounter. I find it rather incredible that such a meeting could have slipped Tasha's memory. I place no significance on the meeting itself but the initial denial that any such meeting occurred directly impacts on Tasha Doucette's credibility.

[48] I also find it troubling that Tasha Doucette denied meeting with Mr. Johnson on April 30, 2013. Mr. Johnson represents Mr. Styres in a civil action arising out of the circumstances of the charge before the court.

[49] When it was put to Tasha Doucette that she was seen speaking with Mr. Johnson in the cafeteria of this very courthouse the week before this trial commenced, she had an eureka moment and recalled such a meeting. This happenchance encounter should not have been a great shock to Tasha Doucette since Mr. Johnson had communicated to her by e-mail on April 23, 2013, 02:54:58 p.m. as follows: "It may be to your benefit if you arrange a time to come and see us before the trial, to discuss your testimony. The reason I say this is not to scare you, but to make sure you are prepared …"

[50] I do not care what was discussed at the meeting. However, the blatant denial of a meeting ever having taken place demonstrates a rather casual approach to telling the truth.

[51] River Doucette advised the court that she had not spoken to her mother about her notes, that her mother didn't get a look at her notes, that her mother didn't have information about the contents of her notes, and that she didn't share that with her.

[52] The information included in the foregoing paragraph certainly does not square with the statement that River Doucette provided to the SIU.

Q. Okay. Well that's good. After you wrote your notes did you discuss this with your mother? What

A. I read what I wrote.

Q. Okay. So, you read to her what you wrote?

A. Yeah.

(2) Vantage Point

[53] Were Tasha and River Doucette behind a bushy hedge when they were making their observations of the events that were occurring between Constables Tran and Bowie and Mr. Styres? Were they beside the bushy hedge? Were they behind and beside the hedge?

[54] I knew this was going to be a contentious issue from the start when Crown Counsel, Mr. Cappell, asked Tasha Doucette, "Okay, and where were you in relation to the bush at that time?" The response from Tasha Doucette was "Behind the bush. Not behind the bush, but like, so the bush is coming north – no it is south of – it is south – it is south Henderson and Osgoode, coming down and then it, so to say it stops, it kind of like the hedge came out a little bit."

[55] In cross-examination, Tasha Doucette was directed to her handwritten notes (Exhibit 25) wherein she stated that she directed River to, "Stay behind the hedges and watch."

[56] Tasha adopted her statement and her evidence on this point at trial as follows:

A. It is mostly like, okay, stay, like, okay fine because she wasn't listening to me, and she wanted to watch, she was going to go, like, stand right and watch how they were going to take care of him, and I didn't want to stand there and watch how they were handling him. So, I said, okay, fine, just stand here behind this hedge.

Q. So, focussing on what you said then, and you have just repeated it, you said to her, "stay behind the hedge and watch" from that position, correct?

A. Yes.

[57] In her notes on the beige paper, Exhibit 24, Tasha Doucette noted that, "Halfway behind the bush, I saw them get him up."

[58] Tasha Doucette at page 23 of Exhibit 24 wrote that, "I said, okay, and we quietly peeked over the bushes". In cross-examination, Tasha tried valiantly to undermine the clear, unequivocal, and unambiguous meaning of this statement with the following response, "I was – we –not – I don't – I may have said over the bushes, but despite my vocabulary, possibly, like, the way I talk is not clear. It's not."

[59] The first mention of the behind/beside the hedge theory appears in the Tasha D statement which was prepared sometime after Tasha's original notes and SIU statement. The excerpt is as follows: "I told her – and that is River – but we should stay behind the hedge, now we were not behind the hedge we were at the side of it, yet we were unnoticed by the police officers as the hedge came out enough onto the curb of the sidewalk, you would need to see it, but the officers did not know we were there, this I am certain. So behind/beside the hedge (it is hard to describe but I know where we were when I am at the hedge on Henderson/Osgoode."

[60] It is amazing that even when we are first introduced to behind/beside by Tasha Doucette, it follows the phrase we should stay behind the hedge.

[61] Tasha Doucette presented as an intelligent, educated witness and her tap dancing around the simplest concept became rather frustrating. Pinpointing one's position should not be that difficult.

[62] It gets even simpler when one looks at Tasha Doucette's drawing of the position that she and her daughter were in when they were making their observations. This clearly shows both witnesses behind the hedge. See Exhibit 25.

[63] Finally, Tasha Doucette conceded after some toing and froing that she may have told the media that she was standing behind the hedge.

[64] River Doucette also makes reference to being behind a hedge to the SIU and drew a diagram clearly showing both her mother and her behind the hedge. She testified that despite the actual positions shown on the diagram the stick figures were meant to be behind/beside the hedge.

[65] River Doucette's final and definitive evidence regarding her viewing point was that she was not behind the hedge.

[66] Regardless of any issues concerning the aforementioned bushes, Tasha and River Doucette observed the incident in question from about sixty feet away.

[67] It should be noted that one of the police cruisers was parked in a location that would have contributed to a partially obstructed view of the scene from across the road. I find at the very least it would have partially obstructed the view of the witnesses.

(3) Internal Inconsistencies and Lack of Recall

[68] Defence Counsel drew the Court's attention to many inconsistencies and lack of recall in Tasha Doucette's evidence. These are outlined in great detail in Defence Counsels' written submissions.

[69] I find that Tasha Doucette did not see how the police got Mr. Styres up off the ground. However, some of her written materials and conversations with Detective Guy and Acting-Sergeant Pratecante contain details regarding how the officers brought Mr. Styres off the ground.

[70] Tasha Doucette's evidence as to the location and movements of Mr. Styres' hands once he was on his feet was another area of inconsistency. Were the hands up at shoulder height and moving or were they against his body at his waist?

[71] Tasha Doucette also showed great flexibility in her evidence when it came to how Mr. Styres was grounded. In examination-in-chief, I had the sense that Constable Tran was the principle officer in tripping Mr. Styres to the ground and that Constable Bowie had a minimal if not non-existent role in the action. This version is in sharp contrast to her handwritten notes wherein she wrote, "They tripped him with their feet." To further muddy the waters, there is mention of the officers pushing Mr. Styres to the ground. In fact, there were multiple scenarios tendered as to what happened during the grounding procedure.

[72] River Doucette's evidence contained many variations. She also stated quite often that she could not remember specifics.

[73] In examination-in-chief, River Doucette described how Mr. Styres got to his feet thusly:

"I am not going to say they were violently or aggressively pushing him, but they were kind of trying to wake him, kind of taunting him, saying get up."

[74] This contrasts rather dramatically with her handwritten notes where she indicated that, "They started roughly shaking and pushing him awake."

[75] River Doucette agreed that Mr. Styres awoke with a start and was grumbling to the officers.

[76] Although the general thread of River Doucette's evidence points to the fact that Mr. Styres was assisted up off the ground by the officers, there is also a suggestion that he may have gotten up on his own.

[77] River Doucette agreed at one point that she saw Mr. Styres' arms were coming up towards his shoulders and that his hands were moving. However, she went to great lengths in her testimony to lower the elevation of the arms.

[78] I find it interesting that in her handwritten notes she observed, "The cops approached him suddenly and the man resisted still trying to get his bearings."

[79] River Doucette gave quite a detailed description to the SIU regarding three pushes applied to Mr. Styres by one of the officers but at trial she had no recall of any such pushes.

[80] River Doucette stated that, "I can't recollect the pushes. I don't remember the pushes. I know I said they happened, but at this point I don't remember."

[81] In River Doucette's recollection of Mr. Styres' grounding, I am presented with a continuously changing picture.

[82] There is ample evidence presented in court regarding Mr. Styres being tripped by an officer but interestingly enough, there is no mention of any tripping in River Doucette's original hand written statement.

[83] The following examples from River Doucette's testimony demonstrate the existence of memory issues. The passages also try to make the evidence fit together.

[84] (Officers holding Mr. Styres' arms)

"Well, reflecting on what I said yesterday I realized that might not have made sense and what I meant by them controlling his body, clearly when he was falling, they can't be still holding his arms, but their push sent him forward to the ground, which made me believe that both of them were responsible for the fall."

[85] (Who did the tripping?)

"I don't remember now, that is why I said I don't know. I don't remember … Well, I remembered it then because I told that to them, but I don't remember that now."

[86] (Arm Gestures)

"Actually, I am not quite certain of that, I believe that is what happened, but I am not quite certain because the arm gestures, it was all very fast."

[87] When River Doucette was asked why there were differences between her statements and her viva voce evidence, she stated that, "My recollection is not that strong."

[88] River Doucette also mentioned that she has "memory blotches" and she stated that, "I said many times I had a lot of memory problems with distinct details."

[89] I have some difficulty accepting the aforementioned "memory problem" theory. River Doucette struck me as having at least average intelligence and had no difficulty in giving her evidence. The event before the court is not complex. One would expect the details would be retained without much difficulty even with the passage of two years.

(4) Tainting and Collaboration

[90] After the events unfolded near the intersection of Henderson and Osgoode, Tasha and River Doucette made their way to Tasha's residence. They telephoned Tasha's father, Norman Doucette. Mr. Doucette gave them excellent advice as to what to do. He advised them to go into separate rooms and write out what they had observed.

[91] Obviously, Mr. Doucette recognized the importance of independent recollection by witnesses in a trial. Alas, this very positive beginning soon began to unravel.

[92] Tasha and River Doucette went to separate areas and wrote down their observations.

[93] River Doucette then read her notes to her mother. This certainly undermined the purpose of the aforementioned exercise.

[94] River Doucette initially denied revealing her notes to her mother but the SIU statement that I have referred to under the Credibility heading sets the record straight.

[95] It would appear that Tasha Doucette prepared one set of notes in the morning and another in the afternoon. The morning notes appear to have been written with two different pens. This pattern strongly suggests that the statement was edited after Tasha Doucette had been informed about River's version of the events.

[96] Subsequently, Tasha Doucette prepared another written typed version for the civil litigation under the heading Tasha D.

[97] It would also seem to be the case that Tasha and River Doucette spoke about the case at least ten times before giving testimony.

[98] The aforementioned circumstances are troublesome. Have the witnesses melded their testimony into a co-operative end-product thereby undermining the concepts of independence and reliability?

[99] Collusion has been defined as the possibility that witnesses, in sharing their stories with one another, intentionally or accidently allow themselves to modify or change their stories in order that their testimony is more similar, more consistent, or more convincing.

(5) Statements and Admissions Addressing Reliability by the Witnesses Themselves

[100] Tasha Doucette throughout her testimony gave many utterances that caused me to pause and consider how reliable her evidence is:

"My memory is like shutting down right now."

"I am visualizing. I am trying to visualize it in my memory and it is two years ago and I am having a hard time with that."

"Because my brain is not allowing me to go there right now, and I just – I am not able to – to remember and be honest at the same time."

"I don't have enough time to check into my memory."

"I can't even focus on the arms anymore. It is – there is too much arm stuff going on. There is. I just can't. My mind is going. I don't know."

"I was putting it together as best as I could with my memory. I was putting it as best I could. I was looking at it and trying to visualize it and the memories were coming back and that is what I was doing. What time and what sequence they came in, I am not going to say what sequence they were in because I am not going to. I don't want to."

"My heart knows he did not hit the cops. I know what I saw."

Q. Here you have the white officer on his right side, not the Asian officer, true?

A. Those were bad notes. I wasn't in my right mind, I guess.

Q. Are you in your right mind today?

A. No. Absolutely no.

[101] When questioned about the differing versions of the event that she gave, Tasha explained it was connected with her memory.

A. You know, how I would explain it? It would be because of my connecting my words with my thoughts and trying to remember my – like it has to do with my memory. My – it is just the way things are coming out, trying to explain things which isn't uncommon for me, especially when I am under stress.

Q. Are you under stress now?

A. Oh, yes.

Q. So, we can't rely on anything you say when you are under stress, can we?

A. I wouldn't rely on everything right now, no.

Q. Ms. Doucette, you talk like your memory is in a separate place that is not in your brain.

A. It is all over the place right now, absolutely.

Q. It is up here in your head, right?

A. Yes. I know where my memory is.

Q. Right, yes. So, when you said yesterday, words to the effect, I am finding my truth?

A. Yes.

Q. What does that mean?

A. That means it is the truth.

Q. Okay. Are you finding the truth now?

A. I have a hard time finding my truth being cross-examined.

[102] Tasha Doucette did not remember how she had described her memory to the SIU on the day she was interviewed. In fact, she described her memory [as] going "wah, wah, wah." In cross-examination, she indicated that it meant that "there was a lot of remember this, remember that, remember this, remember that, and like going back remembering my memory was being exercised and it was just going all over the place, when I said my memory was going wah, wah, wah."

[103] River Doucette expressed her views as to her memory as follows:

"My memory might not be right then."

"I have a hard time remembering it."

"I am trying to say things I remember to this day right now from two years ago. It is very difficult."

"Because to this day, I don't have a strong recollection of what happened, but in the statement that I gave to the SIU that seems very much legit."

"My recollection is not that strong."

"Memory blotches."

"I said many times I had a lot of memory problems with distinct details."

"What I am saying is that my memory yesterday was not very well as it is not the best as it could be today."

(6) Bias and Partiality

[104] Tasha Doucette placed her role as an objective witness in some jeopardy when she became an advocate for Mr. Styres. Ms. Doucette sought out Mr. Styres and encouraged him to seek legal counsel to pursue civil remedies. Her role was enhanced when she made specific arrangements to obtain counsel for Mr. Styres and when she attended at counsel's office with him.

[105] Although Tasha denied telling Detective Guy that, "[She] was advocating for him. [She] was trying to help him." I find as a fact that she did convey this information to the officer.

[106] I find that Tasha Doucette also made efforts to obtain information to assist in Mr. Styres' civil action. The following exchange between Tasha Doucette and Mr. Edelson also illustrates the advocacy role adopted by Ms. Doucette.

A. I was being protective. I think I was just trying to advocate for him.

Q. Why, you …

A. … I said my lawyers – I meant because I was probably in an intimate, sort of, place with this counsellor where I had been talking and I just said my lawyers and I didn't mean anything. I was advocating for him, and I was considering myself maybe, helping him out as an advocate, that's all.

Q. You were chasing down documents that would be useful in starting a civil lawsuit, namely who were the involved officers, right?

A. I know I was doing the best I could. I was – everything I was doing. I felt there was nothing wrong with what I was doing.

[107] Tasha also attended criminal court with Mr. Styres in connection with charge(s) that had been laid against him.

[108] One cannot be critical of Ms. Doucette for wanting to help a person who she perceived as being in need of assistance. However, such actions do put her objectivity and impartiality into question.

[109] Although she declined to assist Detective Guy of the Ottawa Police Service in her investigation, she was more than willing to make herself available for media interviews.

[110] One cannot fault individuals for wanting to help people that need assistance. However, when a witness takes such an active role in parallel litigation, the notion of neutrality is put in jeopardy.

[111] River Doucette displayed a certain degree of hostility towards the officers on the night in question when she referred to them as "fucking pigs". This might be viewed as an isolated incident. However, a subsequent posting on the internet maintains a rather anti-police mindset. The expression used by River was, "Watch those pigs continue the abuse they were doing."

[112] As I assess the evidence in this case, I am mindful of the observations in R. v. S.(R).(D). wherein the Supreme Court of Canada wrote:

"It is especially important that judges recognize in a witness "all the baggage of past attitudes and sympathies" that the witness may carry, untested, "to the grave" when evaluating that witness's evidence."

(7) Cult of Celebrity

[113] There is no question that from the very beginning Tasha Doucette was most interested in connecting with the media. It is rather remarkable that she expended so much time trying to make contact with the Ottawa Citizen while Mr. Styres bled on the pavement and a full eight minutes elapsed before she dialled 911 to report the alleged police brutality.

[114] In a similar vein, although she was able to make time for media interviews, she was unable to meet with the Ottawa police to assist in their investigation.

[115] I do not find that the fact that Tasha Doucette was very active on the media front in itself impacts on her credibility or reliability. The media attention certainly would foster her goals with respect to advocating on Mr. Styres' behalf.

[116] It should be remembered that Mr. Edelson was just entering the area of the media and Tasha Doucette when she became unavailable for further questioning. Therefore, the cult of celebrity domain was not canvassed fully.

[117] I do not find River Doucette's discussion about being on the front page of the Ottawa Sun with a virtual stranger particularly noteworthy. It would seem an obvious topic to introduce into a conversation to pass the time on a long drive.

Weight to be Attached to Tasha and River Doucette's Evidence

[118] To say that there are deficiencies in the evidence of Tasha Doucette and River Doucette is putting it mildly. It almost seems impossible to visualize how witnesses could possibly hit so many red-light issues.

[119] Both witnesses provided examples of untruthfulness.

[120] I find that the vantage point from which they observed the events was partially obstructed by a hedge and a police vehicle.

[121] The inconsistencies between Tasha's evidence and River's evidence were multiple.

[122] The consultations and discussions between mother and daughter may have resulted in a blended version of the events.

[123] Both witnesses clearly suffered from memory issues.

[124] The only category that was not demonstrated as a valid consideration was the cult of celebrity and I have noted that counsel was just entering this area when Tasha Doucette became unavailable.

[125] When I consider the totality of the evidence of both Tasha Doucette and River Doucette, I find that it is unreliable in the extreme.

[126] In spite of my above noted reservations, I still may accept some of their evidence in my deliberations.

Additional Facts with Respect to Hugh Styres

[127] Mr. Styres freely admitted that in the past he has become violent with police officers while under the influence of alcohol. The following exchange confirms the point.

Q. So, would you agree with me that you don't have difficulties with the police typically when you are not boozing, right?

A. No. No.

Q. It is when you are drinking to excess that is when the problems come up, right?

A. Pretty well yeah.

Q. Right, and that is when you have these confrontations with the police, correct?

A. Yeah.

Q. Answer my question, do you not agree that sometimes when you get aggressive, you have had too much to drink …

A. Yes.

Q. … you get aggressive with the police, that that is when they have to get you to the ground to control you and handcuff you, right?

A. Yeah, but not on this occasion.

Q. On this occasion, you have no memory of anything. You don't even remember being with the police.

A. No, I don't.

Q. So, why did you say not on this occasion, because Tasha Doucette told you?

A. No, what I have read in …

Q. In the newspaper?

A. Yeah.

[128] The aforementioned passage also confirms Mr. Styres' complete lack of memory of his encounter with the police on August 13, 2011.

[129] Mr. Styres is 6 feet and 3 inches tall and weighs between 165 and 170 pounds.

Evidence Called by Defence Regarding Mr. Styres' Prior Criminal Antecedents with the Police

[130] I am not overly concerned with the particular circumstances relating to these antecedents.

[131] The witnesses merely confirmed the evidence that Mr. Styres gave himself to the Court, namely, that when he consumes alcohol to excess he can become aggressive and uncooperative.

Evidence as to Mr. Styres' Demeanor

[132] EMS paramedic, Steve McMahon noted that upon his arrival, he observed that Mr. Styres had a strong smell of Listerine about him and that he was refusing to give any information and not talking except to offer the odd profanity. He also saw a Listerine bottle in the vicinity.

[133] Mr. McMahon advised the Court that in his experience in waking people who are sleeping/unconscious on the street, he has encountered a whole range of reactions. Sometimes the person just gets up and walks away and other times the person may be violent, spitting, kicking and being verbally abusive. He expressed the view that approaching these individuals and waking them suddenly can present certain dangers.

[134] EMS paramedic Chris Mosher confirmed that Mr. Styres was intoxicated, had a strong smell of Listerine about him, and was uncooperative and profane.

[135] Mr. Styres maintained his uncooperative stance at the hospital.

[136] Acting-Sergeant Joe Pratecante observed two empty bottles of Listerine at the scene.

[137] Acting-Sergeant Pratecante stated that Mr. Styres' CPIC printout indicated that he was known to be violent and that officers should exercise caution when dealing with him. This information was never brought to the attention of either Constable Tran or Constable Bowie prior to their encounter with Mr. Styres and therefore does not factor into my final determination of this case.

[138] Acting-Sergeant Pratecante was able to give evidence regarding his experience with respect to the Market area in Ottawa and dealing with persons who are intoxicated by Listerine. He also related his observations as they pertained to waking up individuals lying out on the street.

[139] Acting-Sergeant Pratecante stated that the Market area produces a lot of intoxication calls. He also advised that in his experience people consuming Listerine seem more intoxicated than individuals drinking regular alcohol to the point where they pass out and can be violent when awakened. He has had experience in waking individuals on the street who have become violent.

What Does One Make of the Statements and Utterances Made by the Defendant(s) After the Contact Between Themselves and Mr. Styres?

[140] I have referred to comments made by Constable Bowie to Tasha and River Doucette regarding Mr. Styres' hit or swing in the context of the grounding earlier in these reasons. Similar statements were also made to Acting-Sergeant Pratecante and Detective Guy.

[141] Mr. Cappell dances a very fine line with respect to the admissibility and weight to attach to this evidence.

[142] In R. v. Rojas, Charron J. wrote that:

"Exculpatory out-of court statements made by an accused are also subject to the general exclusionary rule against hearsay. Where the accused testifies, such statements are generally inadmissible because they are viewed as self-serving and lacking in probative value. Where the accused does not testify, there is an additional rationale for excluding such statements."

[143] Mr. Cappell recognizes the exception to the aforementioned general rule, namely the "mixed statement" exception which is explained in Rojas at paragraph 37 as follows:

" … [W]here the Crown seeks to tender an accused's out-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantially admissible in favour of the accused: [citation omitted]. Fairness to the accused is the obvious rationale for the mixed statement exception. The exception is also based on the more pragmatic consideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory."

[144] The Crown states that their concession to admissibility should not be taken as a concession with respect to the value that should be accorded such evidence.

[145] The Crown's position is that the untested evidence of swinging arms has no probative value and does not raise an "air of reality", let alone raise a reasonable doubt. Likewise, the Crown contends that this evidence does not demonstrate that the accused used no more force than was necessary.

[146] The Crown states that the unsworn and self-serving statements are completely contradicted by the sworn evidence of River and Tasha Doucette.

[147] I already have made it clear that I found the evidence of River and Tasha Doucette to be extremely flawed and compromised.

[148] The Ontario Court of Appeal in R. v. Humphrey adopted the reasoning of Griffiths J.A. at p. 51 in R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.) as it applies to the approach to take in dealing with exculpatory statements introduced by the Crown as follows:

"The above direction [that the jury could only use the inculpatory portion of the appellant's statement] would have been appropriate if the exculpatory statements had been introduced by the appellant as part of his defence, on the ground that in those limited circumstances, the denials of knowledge of the drugs by the appellant were only admissible to rebut the suggestion of recent fabrication. But, where as in this case the exculpatory statements were introduced as part of the Crown's case, the jury should have been instructed that those statements became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein. The exception to the general rule against self-serving statements is founded on the principle that where the Crown introduces the statement, then it adopts that statement at least as evidence in the Crown's case."

Evidence Regarding Use of Force

[149] Evidence was presented regarding the Use of Force Model, grounding individuals and dealing with unconscious people on the street.

[150] Acting-Sergeant Pratecante testified that all officers of the Ottawa Police Service receive mandatory use of force training using the Use of Force Model. The training model discusses the six conditions that can characterize a situation, including: the environment, the number of subjects, the perceived subject's abilities, knowledge of the subject, time and distance, and potential attack signs.

[151] Common sense dictates that officers must assess potentially dangerous situations quickly and determine an appropriate response. An officer does not have to wait to be assaulted before they take an individual to the ground.

[152] Constable Lofoley captures the essence of grounding in his response:

"Well, the idea is when you are grounding someone you are just looking to get control, so I mean, I can only speak from my experiences – is that it is a violent situation, it happens in a split second and it is completely uncontrollable in terms of what is happening around you, so when you are trying to ground someone you want to make it as fast and clean as possible, mitigate the drama, because the worst thing you can see is a fight, for example, in [the] Market between a copper and a guy who is doing a tug of war […]."

[153] Constable Lofoley also illustrated that even with two officers a situation can change quickly.

[154] Constables Carroll and Lofoley, both experienced street officers, noted the unpredictability of the situation when approaching an unknown and unconscious person.

Did Constable Tran and Constable Bowie Assault Hugh Styres and Cause Him Bodily Harm?

[155] The defence outlines two main issues to the Crown's case. Firstly, has the Crown proven beyond a reasonable doubt that the defendants' actions were the cause of Mr. Styres' injuries? Secondly, has the Crown proven beyond a reasonable doubt that the actions of the officers constituted excessive force?

[156] Defence counsel made interesting but not compelling arguments that the Crown did not prove beyond a reasonable doubt that the injuries were caused by any grounding incident but that they could have been pre-existing. I find this position to be rather fanciful.

[157] I am satisfied that the bleeding would have been evident to Tasha and River Doucette when they approached Mr. Styres even if he had been facing down on the sidewalk.

[158] I am also satisfied that when Constable Tran and Constable Bowie came upon the scene they would have quickly become aware of profuse bleeding and summoned medical help. Their radio transmissions make it clear that the grounding resulted in the bleeding.

[159] The excessive force argument will be dealt with under the Self-Defence heading.

[160] Sections 265 and 267 of the Criminal Code read as follows:

S.265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

S. 267. (1) Every one who, in committing an assault

(b) causes bodily harm to the complainant,

is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years.

The Defence of Self-Defence

[161] Mr. Cappell conceded that the accused should be allowed to rely on the amended provisions of the Code regarding the issue of self-defence. In light of the decisions in Parker and Pandurevic, this concession is well warranted.

[162] The new s.34(1) provides that:

34(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[163] The new s.34(2) provides that:

34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration, and history of the relationship between the parties to the incident; including any prior use or threat of force and the nature of the force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and propensity of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[164] In considering the reasonableness of the force used, I shall address the factors outlined in s.34 (2) of the Code. I am satisfied that Mr. Styres made swinging motions with his arms towards the officers and that these actions presented an imminent threat to them. I find that the action of grounding Mr. Styres was the most appropriate response. Although, there is a risk of harm in grounding an individual, the application of pepper spray or the use of an extendable baton also present the possibility of bodily harm. The officers were engaged in the execution of their duty when they engaged Mr. Styres. There were no weapons involved in the confrontation. Mr. Styres is well over six feet tall and presents as a rather physically fit individual. The officers had no prior dealings or knowledge of Mr. Styres before this incident. The officers took Mr. Styres to the ground in one efficient action and then they immediately handcuffed him. I find that when they observed the obvious signs of intoxication exhibited by Mr. Styres they would have been cognizant of the potential risks of waking up such an individual.

[165] I find that the defence of self-defence in the circumstances of this case has an air of reality. Objectively, the events described by Tasha and River Doucette create a portrait of an intoxicated individual acting in an aggressive manner. This conduct should not come as any great surprise since Mr. Styres admitted that he has been violent in the past when he has been under the influence of alcohol. On September 13, 2011, Mr. Styres, having just been awoken, was swinging out at the two accused officers. Constable Bowie's comments show that he considered that he was swung at by Mr. Styres. As a result of Mr. Styres' actions, the officers took him to the ground for their own protection and to prevent any further aggression. I find that the amount of force used by the officers was reasonable in the circumstances.

Sections 25, 26, 27 of the Criminal Code

[166] The Criminal Code of Canada sets out the provisions governing when a police officer is justified in using force:

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

(b) as a peace officer or public officer,

(c) in the aid of a peace officer or public officer, or

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

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

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

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of the offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[167] I agree with the Crown that s.25 of the Code likely provides a broader protection for the accused than s.34. This is so because, not only may an officer have to use force in order to repel an assault (i.e. self-defence), he will presumably also have to attempt to gain control over the assaultive person and take him into custody, which may require the use of additional force.

[168] In determining whether the use of force is justified in a particular case, the trier of fact must look at the use of force on both an objective and subjective basis. Three conditions must be met in order for a police officer to qualify for the protection of s.25.

(1) the police officer must be engaged in an activity that he/she is required or authorized by law to do in the administration or enforcement of the law;

(2) the officer must act on reasonable grounds (objective and subjective); and

(3) the officer must only use as much force as is necessary (objective).

[169] While police officers relying on s. 25 must not use unnecessary force, their actions are not to be judged against a standard of perfection. Police officers engage in demanding work that is often dangerous and must frequently make split-second decisions. Their actions must be viewed having regard to these considerations.

[170] With respect to s. 25, Mr. Cappell harkens back to his position that there is no air of reality to this defence since there is no evidentiary basis upon which to create an air of reality. Mr. Cappell submits that any wispy shreds of evidence to the effect that Mr. Styres "took a swing" at one or both accused exists only as hearsay.

[171] I take a different view of the "wispy evidence".

[172] The accused in the circumstances of this case can rely on the "swing" statement to demonstrate their subjective grounds to take the action they did.

[173] Although Tasha and River Doucette consistently conclude that Mr. Styres exhibited no physical signs of aggression, I find that their evidence of shoulder-high arm waving does amount to aggressive behaviour.

[174] I have serious reservations regarding paragraph 129 of the Crown's written submissions.

[175] Paragraph 129 reads:

"If there was any evidence that Mr. Styres threw a hard punch and clearly had his wits about him, it could perhaps be found that the accused reasonably believed he could only be neutralized by resort to a significant application of force such as grounding. On the other hand, if Mr. Styres was so intoxicated that the punch was a feeble wave and he could barely stand up, let alone offer any resistance to being handcuffed, it becomes much more difficult, if not impossible, to accept that the accused truly believed it was necessary to use a form of force that inherently involves a significant risk of injury to the person being apprehended. Without knowing anything about the threat Mr. Styres posed to the accused when they took him down, it is simply impossible to determine that the accused subjectively believed it was necessary to ground Mr. Styres without resorting to speculation. It may well be the case that Mr. Styres could easily have been controlled and handcuffed while he was still on his feet."

[176] I find that the overall aggressiveness of Mr. Styres did not require the officers to wait until there was a "hard punch" thrown. Nor do I find that the actions of Mr. Styres amounted to feeble waves. I do not find that Mr. Styres presented as a non-resistant individual. The officers were dealing with an intoxicated person who was acting aggressively towards them. I find that the situation was such that grounding Mr. Styres was an appropriate way to gain control of the situation and prevent further aggression.

[177] I find that the defendants herein can rely on the protection of s. 25 of the Code in this case.

Conclusions

[178] On August 13, 2011, Hugh Styres was observed by Tasha and River Doucette on the sidewalk near the corner of Henderson and Osgoode in an unconscious state.

[179] Tasha Doucette called 911.

[180] Constables Tran and Bowie responded to the 911 call in their capacity as officers of the Ottawa Police Service.

[181] Upon arrival, the officers thanked the Doucettes for their assistance and they approached Mr. Styres' prone body.

[182] Two empty Listerine bottles littered the nearby sidewalk and an odour of Listerine emanated from Mr. Styres' person.

[183] I am satisfied that the arousal of Mr. Styres from his state of rest presented potential danger to the officers. I base this conclusion on the evidence of other officers called at this trial as to the potential reactions of people who are aroused from deep slumber. These concerns are heightened when those individuals are under the influence of alcohol or drugs.

[184] I accept that Mr. Styres became upright but I am not comfortable in concluding whether this change of position was aided by the officers or not based on the compromised evidence of Tasha and River Doucette.

[185] Likewise, for reasons stated earlier as to the reliability and credibility of the Doucette's evidence, I am not satisfied as to whether one or the other of the officers shoved Mr. Styres when he was in an upright position.

[186] I am satisfied that Mr. Styres said something when he was on his feet but I am unable to ascertain what he said and that he raised his arms to shoulder height and moved them in some fashion or other.

[187] Immediately after Mr. Styres began to move his hands around, the officer(s) took control of Mr. Styres and in one fluid motion brought him to the ground and handcuffed him.

[188] Thereafter, Constable Bowie notified dispatch regarding the actions taken and the need for an ambulance.

[189] I am satisfied that Mr. Styres was not bleeding from his head prior to his takedown.

[190] I have had the benefit of a thorough mining of the facts. However, I have not lost sight of the fact that this entire incident encompassed but a few seconds.

[191] Police officers do not have the luxury of freeze frame time as they confront various situations during their interactions with individuals. They deal with events in real time. They are required to make split-second decisions based on what is presented to them.

[192] When citizens observe the police in physical contact with someone and an injury results, they may see the injury and immediately assume that there is "police brutality". This conclusion may very well be the result of not having any experience with events that play out on the streets.

[193] In the case at bar, the objective facts are that upon awakening a tall, intoxicated man, the officers were confronted with arm motions that were consistent with potentially escalating assaultive behaviour and they controlled that individual quickly and efficiently by taking him to the ground thereby eliminating any potential danger.

[194] I am satisfied that in fact Mr. Styres struck out at the officers.

[195] I am satisfied that Constable Tran and Constable Bowie conducted themselves in a lawful and reasonable manner when they took Mr. Styres to the ground.

[196] I am not satisfied that the Crown has demonstrated that either officer committed the offence of assault bodily harm upon the person of Hugh Styres beyond a reasonable doubt.

[197] Accordingly, the charges are dismissed.

Released: October 11, 2013

Signed: "Justice Charles H. Vaillancourt"