Court File and Parties

Court File No.: St. Catharines

Date: 2013-10-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Paul Zarafonitis

Before: Justice Fergus O'Donnell

Heard on: 2 July, 2013

Reasons for Judgment Delivered on: 21 October, 2013

Counsel:

• Mr. I. Bulmer for the Crown
• Mr. A. McKay for the defendant, Paul Zarafonitis

Judgment

O'Donnell, J.:

[1] Paul Zarafonitis has pleaded guilty to a single count of assault causing bodily harm. Mr. McKay for Mr. Zarafonitis submits that the appropriate disposition is an absolute discharge. Mr. Bulmer for the Crown argues that a suspended sentence would be more fitting.

[2] The offence occurred in the course of Mr. Zarafonitis's duties as a police constable with the Niagara Regional Police Service. On the evening of 18-19 May, 2012 the victim, Michael Farkas, was at a restaurant in Niagara Falls, employed to take photographs of a rap artist competition. As had happened in the past, the restaurant became the object of a noise complaint to the police and Mr. Zarafonitis was one of the first three officers on scene. The complaint was such that a total of ten officers were dispatched in response within seven minutes of the first dispatch.

[3] While the noise investigation was ongoing in the restaurant, Mr. Farkas took pictures of Mr. Zarafonitis and another officer inside the restaurant. When Mr. Zarafonitis expelled a performer onto the street, Mr. Farkas followed them and tried to photograph the event. The scene outside the restaurant was noisy, with agitated restaurant patrons screaming and yelling at the officers; the crowd was drunk, aggressive and confrontational. Mr. Farkas stood on the sidewalk taking photographs and Mr. Zarafonitis told him to stop photographing and to leave the area. Mr. Farkas declined to leave, feeling he was entitled to continue taking photographs. Mr. Zarafonitis responded to the refusal by arresting Mr. Farkas for public intoxication under the Liquor Licence Act, an arrest that Mr. Zarafonitis believed to be valid.

[4] Mr. Farkas resisted when Mr. Zarafonitis took control of him. In the course of subduing Mr. Farkas, Mr. Zarafonitis punched him in the face, causing fractures to Mr. Farkas's right infra-orbital floor and nasal bone, injuries that did not require surgery. Mr. Farkas was later released on a promise to appear. It was admitted that the degree of force used by Mr. Zarafonitis in punching Mr. Farkas in the face was excessive, thus making out the offence. It was admitted that there was a material size discrepancy between the two men, with Mr. Zarafonitis being the larger: Mr. Zarafonitis is four inches taller, 6 feet compared to Mr. Farkas's five feet, eight inches, and almost double Mr. Farkas's weight: 260 vs. 150 pounds.

[5] I was presented with two victim-impact statements, one from Mr. Farkas and the other from his wife, Tanya, as well as a copy of a few of Mr. Farkas's Facebook entries tendered by Mr. McKay.

[6] Mr. Farkas's victim-impact statement, dated just before the plea, which was about a year after the offence, includes the following effects of the assault:

• Post-traumatic stress disorder, anxiety, nightmares; headaches, nerve damage in his face.
• Fear of uniformed people and all police.
• Withdrawal from society and sadness, including sadness from having to watch his wife endure his own experiences.
• Physical discomfort working with a computer and running his photographic business. Dizziness, with the concomitant risk of passing out, affecting his ability to work in crowds and resulting in a substantial loss of income. More than $6,000 in photographic equipment was destroyed.
• He has had to see a dentist, eye surgeon and plastic surgeon and had outstanding appointments with a neurologist and psychiatrist.

[7] Ms. Farkas's victim-impact statement recounts the impact of the offence on her, including:

• The trauma of seeing her husband being beaten up.
• Missing time off work for a few days because she had to stay awake to check on her husband's condition (I presume this relates to the fairly typical concern for concussion or some similar concern in cases like this).
• Being required to care for her husband for at least one-and-a-half months.
• Coping with and trying to counteract her husband's moodiness, irritability and lack of sleep arising from his physical and emotional injuries.
• Nervousness when her husband goes out to work alone.
• Fear of the police: while recognizing there are good police officers, she does not know whom to trust.

[8] Mr. Farkas's Facebook page included short entries from 20-27 May, 2012. On 23 May, 2012 he said that he was slowly getting better and that the plastic surgeon had told him that his facial bones were positioned in such a way that surgery would not be necessary. Four days later, which would have been eight days after the offence, he noted that he was starting to feel a bit better and his face was looking much better. Throughout the entries there are thanks to people for supporting him through a very difficult time.

[9] Mr. Farkas's victim-impact statement recounts that he has never been in trouble with the law. I am told that Mr. Zarafonitis has no previous criminal record.

[10] I was also presented with a sizable book of documents in relation to Mr. Zarafonitis. Those documents included:

• A letter from Niagara Falls City Councillor Wayne Thomson outlining the significant contributions Mr. Zarafonitis and the businesses owned by him and his wife have made to local charitable, religious and sports causes. Councillor Thomson, "was also always impressed with his interpersonal skills and the manner in which he related with members of the community."
• A letter from Paul Forcier, a friend of thirty-three years and a member of the Niagara Parks Police. Inspector Forcier's letter echoed the themes of generosity and of Mr. Zarafonitis having "an uncanny knack for being able to communicate with people of all walks of life".
• A letter of thanks from an attempt murder victim, directed to the members of Mr. Zarafonitis's unit in 2013.
• A 2008 letter of thanks from the Ministry of Revenue for Mr. Zarafonitis's assistance in executing a search warrant.
• A 2004 commander's commendation for the work Mr. Zarafonitis's unit did in response to a fatal stabbing.
• A letter from 2000 from a young woman involved in a motor vehicle collision, thanking Mr. Zarafonitis personally for his professionalism and understanding.
• A commendation by the Chief of Police in 1999 for Mr. Zarafonitis and twenty-five other members of his team for their role in an initiative to reverse increasing crime rates in Niagara Falls.
• A memorandum from Mr. Zarafonitis's superintendent in 1997 thanking him for his role in a four-day project dealing with outlaw gang members.
• Mr. Zarafonitis's performance appraisals for six of the seventeen years ending between January, 1996 and January, 2012 and not including the year of this offence. The assessments are generally average to above average. For example, in the most recent years, in which an eleven-item numbered performance assessment is used, Mr. Zarafonitis typically received six to seven scores of four or five (on a five-point scale), with most or all of the other criteria ranking a three out of five). With his twenty-six years of policing experience, he is appraised by his supervisors as an unofficial leader and mentor on his platoon.

[11] Mr. Zarafonitis is forty-six years old, married with four children and, as I mentioned earlier, no previous criminal record. As a result of the charge he has been suspended and re-assigned to administrative duties and has suffered professional embarrassment. Police Act charges against him are pending.

[12] Mr. Zarafonitis read a letter of apology to Mr. Farkas in court. He stressed that he never intended to cause Mr. Farkas injury and hoped that his recovery would be speedy and complete. He said that he did not want his actions to be taken as reflective of the police generally.

[13] It goes without saying that I must consider and weigh all of the evidence that has been placed before me. For example, it is apparent to me that the agreed statement of fact was the product of considered discussion between the Crown and Mr. McKay for Mr. Zarafonitis. It says what it says and nothing more or less. I must consider the various letters of reference both in terms of their consistency and in terms of their connection to the admitted facts. Thus, for example, Inspector Forcier, who has known Mr. Zarafonitis for over three decades, speaks with absolute confidence that it is simply not in Mr. Zarafonitis's DNA to risk his reputation or his police service's reputation by stepping outside the bounds "without great provocation or threat to his personal safety". There is, however, absolutely nothing before me in the admitted facts to disclose any such risk or great provocation on Mr. Farkas's part and nothing that could even reasonably be inferred from the admitted facts as justifying the offence. On the other side of the equation, I must consider the victim-impact statements in light of the reality that civil proceedings might exist between Mr. Farkas and Mr. Zarafonitis and his employer. That does not mean that Mr. Farkas or his wife is exaggerating the effects of the offence, simply that I must be alive to the possibility.

[14] Mr. Bulmer and Mr. McKay have referred me to numerous authorities. I am thankful to them both for their diligence but do not propose to repay (or perhaps punish) that diligence by reciting all of the cases to which they have referred me. I have read all of the cases and they are obviously helpful in providing a broad canvas of similar and dissimilar cases leading to particular outcomes. Each case, of course, is captive to its own facts, including the details of the offence, the context of the offence, the degree of remorse, the background of the defendant and so on. No purpose is served, however, by reciting the details of each of some two dozen cases to assess how each compares to the Mr. Zarafonitis's case. There are countless similarities and dissimilarities in the cases. The value of the cases lies in their definition of the sentencing landscape, in their provision of a broad sweep of judicial insight on the issue and in their canvas of the relevant principles in cases such as this.

Sentencing Principles

[15] The Criminal Code defines the matters that I must take into account in deciding a fit sentence for a defendant. The fundamental purpose of sentencing is to enhance respect for the law and the maintenance of a peaceful and safe society. Among other things, a sentence should seek to denounce unlawful behaviour, deter people from breaking the law, provide reparations for harm done and acknowledge the harm done to victims and society. A sentence should never lose sight of the importance of rehabilitating the offender and promoting a sense of responsibility in him or her.

[16] The Criminal Code also defines certain aggravating factors to be taken into account in sentencing. The one that is at least somewhat relevant here is any abuse of a position of trust or authority by the offender. In using excessive force against Mr. Farkas, Mr. Zarafonitis clearly violated the position of trust he occupied as a person given special powers and authorities and sworn to uphold the law.

[17] The offence to which Mr. Zarafonitis has pleaded guilty is potentially eligible for an absolute or conditional discharge under s. 730 of the Criminal Code. Section 730 gives me the discretion to impose a discharge rather than a criminal conviction if I am satisfied that it is in Mr. Zarafonitis's best interests and that it is not contrary to the public interest. The first criterion is rarely in dispute. Typically, a person of previous good character for whom specific deterrence is not a major concern will satisfy the first requirement. The question in this case is whether the second criterion is satisfied. The availability of discharges is not limited to technical or trivial violations and there are no general types of offences for which a discharge is presumptively unavailable.

[18] The record before me displays that Mr. Zarafonitis and his colleagues were in the midst of a volatile situation, faced with a loud, hostile and aggressive crowd. The record contains no such characterization of Mr. Farkas. Against this backdrop Mr. Zarafonitis made a conscious decision to single out Mr. Farkas as the object of his attention and to direct him to stop photographing and to leave the area. Given the agreement that Mr. Zarafonitis believed he had a lawful basis to arrest Mr. Farkas for public intoxication, Mr. Zarafonitis was entitled to use reasonable force in making that arrest.

[19] Police officers face countless challenges in the course of their duties. They are routinely called upon to deal with people who may be obnoxious, drunk, violent, mentally ill or all of the above. They are given training, equipment, weapons and back-up to assist them in dealing with those challenges. They are also given powers and protections that other members of society do not enjoy and those powers are typically given broad ambit by the courts. In recognition of the challenges police officers face, the courts have routinely accepted that the officer's judgment exercised in, for example, a potentially dangerous encounter in a dark alley on a Friday night is not to be microscopically analysed and dissected by a judge on a Monday morning, but rather is to be allowed a considerable degree of latitude. Precision and exactitude are not expected in measuring the force used.

[20] There are, of course, limits to an officer's use of force and it is a matter of serious public concern whenever a person sworn to uphold the law oversteps the fairly generous bounds of his or her authority. The Supreme Court of Canada has reaffirmed this recently in the Nasogaluak decision when that court emphasized that:

police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

[21] This is not a novel concept. Consider the words of the Appeal Division of the Nova Scotia Court of Appeal in R. v. Cusack, (1978), 41 C.C.C. (2d) 289, 293 some thirty-five years ago:

In my opinion, the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust. All citizens must have confidence that police officers who are invested with substantial rights of interference with individual liberties exercise these rights with scrupulous propriety, and that any failure to so act will result not only in dismissal from the position of trust, but also in the imposition of substantial punishment.

The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.

[22] It bears noting that the court in Cusack was not even talking of a crime of violence. The offence in Cusack was the theft by a police officer of money from the wallet of a driver whose licence he had asked to see. It also bears noting that the Court of Appeal for this province has cited these words from Cusack within the past five years.

[23] From a public policy perspective it is also worth noting that police officers who generate community disrespect for the police by exceeding their authority not only violate their oath, they put other police officers in danger because widespread disrespect for the police has the potential to engender greater resistance.

The Right to Record Police

[24] In the course of submissions, I asked Mr. McKay whether or not the direction to stop photographing was a lawful direction. I eventually got an answer that I take to be the only sound answer to that question: unless Mr. Farkas's presence or actions were creating a danger to him or others, ordering him to stop photographing was not a lawful command on Mr. Zarafonitis's part.

[25] This is not a trivial matter. The suitability of a discharge requires consideration of all of the surrounding circumstances. I am faced with the rather peculiar situation where Mr. Zarafonitis was faced with a loud and aggressive assembly but instead chose to focus his substantial legal and physical power and authority on the person who was taking photographs of the police-citizen interaction. I obviously cannot read Mr. Zarafonitis's mind, but his focus on Mr. Farkas in light of the picture painted for me by the agreed statement of facts reflects an odd sense of priorities. Mr. Farkas was not arrested for obstructing police or for breach of the peace or for causing a disturbance but for the rather minor provincial offence of being intoxicated. His arrest was preceded by a direction by Mr. Zarafonitis to move away, which may or may not have been lawful, and a direction to stop photographing, which on the facts before me had no lawful basis. That latter direction, therefore, was another occasion that night when Mr. Zarafonitis overstepped his powers.

[26] Police-citizen interaction typically involves a significant power imbalance. Just as judges should be hesitant to second-guess police decisions often made under stress without time for long reflection in back alleys late at night, we have to recognize that the citizen on the other side of that interaction, who may or may not have committed an offence and who is entitled to the protection of the rule of law, is also often alone in a back alley late at night. In the absence of an overarching and tangible safety concern, such as telling a photographer at a fire scene to back away if there is a danger that the building will collapse on him, telling people not to record these interactions, whether they be a bystander or the person the police are dealing with, is not a lawful exercise of police power. An officer who conducts himself reasonably has nothing to fear from an audio, video or photographic record of his interaction with the public. The public has a right to use means at their disposal to record their interactions with the police, something that many police services themselves do through in-car cameras and similar technology. The officer's powers exist to allow him to protect the public and himself and to enforce the law; they do not extend to controlling the public record of what happened. The maintenance of that public record plays a significant role in the maintenance of the rule of law. The existence of this form of objective "oversight" has great potential to minimize abuses of authority and to maintain peaceable interaction between police and the citizenry, all of which is very much in the public interest. Interference by a police officer in the public's exercise of that right is a significant abuse of authority.

Mitigating and Aggravating Factors

[27] Various things can be said in favour of Mr. Zarafonitis and those factors must be taken into consideration in determining whether a discharge is in his interest and not contrary to the public interest. Those factors include:

• He has pleaded guilty, thereby taking responsibility for his conduct, saving Mr. Farkas the stress and uncertainty of testifying and saving court resources. Although the plea took place on the morning set for trial, it was agreed well in advance and the timing was dictated more by the requirements of putting the matter before an out-of-town judge than by anything else.
• He has apologized publicly to Mr. Farkas.
• He has no previous criminal record.
• This first involvement with the courts as a defendant comes at the age of forty-six.
• He has over two decades of policing, accompanied by favourable reviews and is seen as an unofficial leader on his unit.
• He has a significant history of community involvement with a range of worthwhile charitable causes.
• His offence is a matter of public knowledge and has resulted in him being assigned to desk duty pending the resolution of this charge. He is also facing discipline under the Police Act.
• He reasonably believed that his arrest of Mr. Farkas for public intoxication was lawful.
• The conduct making out the offence was a single blow.

[28] On the other side of the ledger are the following considerations:

• The offence was a breach of trust, a defined aggravating factor under the Criminal Code. It is a serious matter for someone employed and sworn to uphold the law to overstep his bounds through the use of excessive force.
• While I accept Mr. McKay's characterization of the violence as not "gratuitous" in the sense that it did not involve, for example, kicking a handcuffed prisoner in the head, it did involve a blow to the head, a type of blow that an officer of Mr. Zarafonitis's long experience should know carries with it a higher risk of significant injury than a soft-tissue blow. Why such a blow to the head was used remains unexplained.
• There is a dramatic size difference between Mr. Zarafonitis and Mr. Farkas.
• The injuries to Mr. Farkas were significant and the long-term effects on him were substantial. I appreciate that the precise duration and extent of the physical and emotional damage to Mr. Farkas and Mrs. Farkas may be the object of future litigation, but most of what is set out in the victim impact statements strikes me as entirely foreseeable.
• Mr. Zarafonitis's conduct undermines the credibility and reputation of the Niagara Regional Police Service and public confidence in the police.
• The use of excessive force followed the making of an unlawful direction to Mr. Farkas to stop photographing.

Conclusion on Discharge

[29] It has famously been proclaimed in another context that no man has the right to say to a people, "thus far shalt thou go and no further". In this very different context that type of declaration is precisely what is required of the courts. Society rightly expects that the courts will give a fair and generous ambit to the realistic requirements of policing but society equally requires that courts not shrink from denouncing conduct that clearly crosses those boundaries, especially if that crossing of lines is done in close conjunction with the attempted suppression of a valid public interest. I do not mean to suggest that Mr. Zarafonitis's behaviour was at or near the high end of misconduct as reflected in the cases, clearly it was not, but the type and degree of force used was both excessive and irresponsible and the potential for serious long-term consequences for the person at the other end of Mr. Zarafonitis's fist was predictable, whether those consequences ensued or not. The direction to Mr. Farkas to stop photographing was itself an abuse of authority, committed in very close temporal connection to the excessive use of force.

[30] In all of the circumstances, I am satisfied that while a discharge would be in Mr. Zarafonitis's best interests, both an absolute and a conditional discharge would be contrary to the public interest. Any discharge would serve to diminish the seriousness of the offence here and would fail sufficiently to express society's denunciation of such conduct. Society's absolute rejection of such conduct must be heard loud and clear. A discharge would also fail to convey the deterrent effect that is required in a case of this nature. I do not wish by any means to dilute the value of the various mitigating factors including Mr. Zarafonitis's substantial community involvement, but it strikes me that all of those factors are reflected in the sentence sought by the Crown here. Indeed, without those significant mitigating factors, this would almost certainly be a case in which a short jail sentence would be called for.

Sentence

[31] I am satisfied that the appropriate sentence for this offence, taking into account all of the facts and the mitigating circumstances is a suspended sentence with probation for one year. A conviction will be entered. The terms of the probation will be as follows:

a) You must report to a probation officer within 48 hours and thereafter as directed by your probation officer. Your obligation to report to your probation officer will end once you have completed the community service hours required under this order.

b) You are not to have any contact directly or indirectly with Michael or Tanya Farkas other than through counsel or as required for any court or Police Act proceedings.

c) You are not to be within 50 metres of any place you know that Michael or Tanya Farkas lives, works or attends school or religious services or any other place either of them is known to you to be unless that presence is reasonably necessary in the course of your employment with the Niagara Regional Police Service or is necessarily incident to court or Police Act proceedings.

d) You shall perform forty hours of community service as directed by your probation officer at a rate of not less than four hours per month starting not later than sixty days from today. You may start the community service sooner and may complete the hours faster than the minimum period. You must sign releases to allow your probation officer to monitor your compliance. I consider this community service an important element of this sentence as a form of reparations to the community for the damage your behaviour has done to the public interest. If it were not for your significant history of charitable work and community involvement the number of community service hours would be dramatically higher.

[32] I am told that there are civil proceedings outstanding between Mr. Farkas on the one hand and Mr. Zarafonitis and the Niagara Regional Police Service on the other. Against that backdrop, no restitution order has been sought.

[33] Section 737 of the Criminal Code directs that I impose a $50 victim surcharge on Mr. Zarafonitis. It has not been suggested to me that the victim surcharge would constitute an undue hardship for Mr. Zarafonitis. He will have sixty days to pay the $50.

[34] Mr. Bulmer asks that a DNA order be made. This is a primary designated offence. Mr. McKay does not press the point very strenuously but mentions that Justice Douglas declined to make a DNA order in R. v. Hutchison, 2009 ONCJ 387, also a case of assault causing bodily harm. I am not privy to the reasoning for not making the order in that case. However, the standard for declining to order the taking of a DNA sample for a primary designated offence is that I must be satisfied that the effect of making the order on Mr. Zarafonitis's privacy and security of the person would be "grossly disproportionate" to the public interest in the DNA data bank. I am privy to and bound by the reasoning of the Court of Appeal for Ontario in various DNA decisions, including R. v. Rowan & Hendry. Applying the test in the Criminal Code as interpreted by the Court of Appeal, I am not satisfied that requiring a DNA sample on this case would be grossly disproportionate and I require that Mr. Zarafonitis provide a sample of his DNA on the primary offence of assault causing bodily harm.

Thank you gentlemen. Good luck Mr. Zarafonitis.

Released: 21 October, 2013