Ontario Court of Justice

Her Majesty the Queen v. Robert Harris

Reasons for Judgment

Before the Honourable Justice M. Block

On December 16, 2013, at Toronto, Ontario

Appearances

I. Bulmer – Counsel for the Crown

M. Salama – Counsel for Robert Harris

Reasons for Judgment

BLOCK, J: (Orally)

Facts and Circumstances

[1] On March 27, 2011 Constable Robert Harris deliberately fired his .40 calibre Glock pistol twice at Trevor John, the driver of a tow truck. The defendant asserts that he fired to save the life of a woman he believed was being dragged or run over by the truck.

[2] The incident took place at the conclusion of a pursuit of Mr. John by PC Harris and his partner in an industrial/commercial area on Rivalda Road near the intersection of Sheppard Avenue West and Weston Road in the city's north-west. Mr. Harris is charged with careless use of a firearm, contrary to section 86 of the Criminal Code.

[3] The facts are largely uncontroversial and were established by an agreed statement of fact and by testimony. A video camera was mounted on the dash of Constable Harris' police cruiser and recorded the pursuit. The DVD of this evidence was entered as Exhibit 9 at trial. It was a most important aid to the determination of the events of that night.

The Pursuit

[4] The chase started at 23:17:29, on March 27, 2011. The driver, Constable Harris, and his partner Sohail Nadeem were driving northbound on Weston Road when they believed Mr. John disobeyed a traffic signal while making a right turn to go northbound on Weston Road from Gaydon Avenue. Constable Harris activated the emergency equipment on his marked cruiser to indicate that Mr. John should bring his truck to a stop. Mr. John failed to stop and indeed accelerated away from police.

[5] John sped away northbound on Weston Road followed by the police car, lights on and siren wailing. After approximately half a minute, the police ceased their pursuit because of traffic on Weston Road. They followed John's truck from a distance. Approximately one minute later, the police were able to catch up with John on Weston Road as he had slowed down to a regular speed. Traffic was light. At 23:18:52, the police reactivated their emergency equipment to bring John to a stop. He responded by making a U-turn and heading southbound on Weston.

[6] John soon made an abrupt left hand turn on to Bradstock Road. He sped eastbound towards Rivalda Road and turned left when he reached it, blowing through several stop signs on his way. The police informed dispatch at this time that they were pursuing a vehicle that was being driven dangerously. By this time they had determined the license plate of the tow truck. I need not make a decision as to whether a high-speed chase was appropriate at this point, though that may be a decision for another forum.

[7] At 23:20:20, as John headed north on Rivalda Road, police were able to cut him off, exit the cruiser, draw their guns and make the first attempt at arrest. However, as police approached his vehicle on foot, John drove his vehicle southbound on Rivalda in reverse at high speed. Constable Nadeem advised dispatch that the tow truck driver attempted to strike their police cruiser twice at this time. I was unable to confirm this during my review of Exhibit 9.

[8] John reversed his truck into a parking lot at another location on Rivalda Road. The police drove up to his tow truck a second time, parked nose to nose and leapt out with their guns drawn to arrest John. They heard two women in the truck screaming and they were concerned that they may have been abducted. John either collided slowly with or rolled into the police cruiser. He then reversed away from the cruiser and sped away southbound on Rivalda Road. Both women gave statements and one woman, Jahlisa Barclay, gave evidence confirming that they were yelling at John to stop his vehicle.

[9] John next stopped his vehicle in the parking lot of 39 Rivalda Road. At 23:21:25, police stopped with their cruiser facing the front of the tow truck. Once again the constables exited their cruiser with guns drawn. Constable Harris attempted to open the driver's door, but although John had his hands in the air he was otherwise unresponsive and the door was locked. Constable Harris smashed the driver side window with his baton and demanded that John leave the truck.

The Shooting

[10] As Constable Harris attempted to re-holster his baton, the two women exited the tow truck. At this time John reversed his truck. Constable Harris ran after the tow truck as it was reversing. He fired his Glock pistol twice at John. Both shots hit the front windshield and the projectiles buried themselves in the rear cabin area of the truck. Neither shot hit John.

[11] John sped out of the parking lot in reverse and then continued in reverse south down Rivalda Road to Sheppard and then eastbound on Sheppard. He then put his vehicle in drive and continued his escape. During the pursuit on Sheppard his speed was reported at 90 km/h. This is consistent with Constable Harris' evidence of John's speed during much of his portion of the pursuit. John was located and arrested by other police units some minutes later in a church parking lot on Jane Street. John's conduct was consistent to the last as he was ultimately tackled by police officers while attempting to flee on foot.

Environmental Factors

[12] There was one vehicle parked in the lot at 39 Rivalda Road. Video footage showed several vehicles leaving the lot one minute before the police cruiser and the tow truck arrived. There were several persons inside a nightclub called Las Brisas Del Mar, located across the road from the 39 Rivalda parking lot. Both shots were fired in a southerly direction. There were a number of trucking companies, some light industry, some small office buildings and ultimately, Sheppard Avenue in that direction. A bus route operates on Rivalda Road during this period in time, although there is no evidence that any buses were seen at that time of the shooting.

[13] The time span from the suspected traffic infraction until the discharge of Constable Harris' pistol was approximately four minutes. During this time John's driving conduct certainly merited the charge of dangerous driving to which he subsequently plead. His conduct was not only extremely dangerous, it was bizarre and unpredictable. John demonstrated a complete disregard for the life-threatening hazards he created for the police officers involved, his passengers and for anyone else unlucky enough to be near him on those lightly traveled streets that evening. In my view Constable Harris had every reason to expect that John would continue to be indifferent to the consequences of his extraordinarily reckless conduct.

Evidence

Constable Harris's Testimony

[15] Constable Harris gave evidence on his own behalf. His evidence of the pursuit was consistent with the video entered as Exhibit 9.

[16] The denouement of this incident began at 23:21:11, as recorded in Exhibit 9. Constable Harris testified that his plan was to open the door of John's vehicle and arrest him. He ran to the driver's door with his pistol in his hand. He tried to open the door at 23:21:32. It was locked. He was yelling at John to gain his compliance, though without apparent effect.

[17] He explained that as one female passenger left the rear of the tow truck, he used his baton to break the driver side window at 23:21:37. The suspect had his hands in the air, although the defendant thought that he was shielding his face from the spray of glass and not to indicate surrender. At 23:21:39, the defendant attempted to re-holster his baton and momentarily took his eyes off the occupants in the truck. The rear female passenger then pulled the front female passenger out. As he recalled the incident, the front passenger moved toward the rear of the truck. Immediately after her exit at 23:21:47, the truck reversed. Harris looked for, but could not see the front passenger.

[18] Constable Harris ran after the reversing tow truck. He continued to look for, but could not see the front passenger. He told the Court he feared that the woman was being run over or dragged by the tow truck. He thought that he had to bring the truck to a stop by shooting the driver and he fired two shots at John through the front windshield. He waited until 23:21:50 to shoot in the hope that he would see the woman come into view on the passenger's side of the truck as it reversed. The truck continued to reverse quickly out of the parking lot as Constable Harris ran after it. At 23:22:17, he stopped his foot pursuit and ran back towards the cruiser. At 23:22:33, he slowed down as he saw both women and knew that they were safe.

Cross-Examination of Constable Harris

[19] In cross-examination Constable Harris was challenged on the possibility of shooting accurately under the prevailing conditions in the parking lot. Factors that were put to him included the effect of the cruiser's flashing lights, the unknown footing, the tow truck's headlights and his own movement while running towards the tow truck, while he shot the driver. He was aware of these issues but his assessment was that he could shoot accurately. He was confident of his ability to hit the vehicle. He said that he would not have fired at the tires to disable the vehicle as he was not trained to do it and it is, to his knowledge, an ineffective practice.

[20] The implication inherent in this line of questioning is that Constable Harris chose to shoot under conditions which would make any shot wild or inaccurate. I disagree. Constable Harris shot twice from a short distance and struck, as we have noted, the driver's side of the windshield twice. It is evident from the physical evidence of the truck interior that the projectiles narrowly missed John and were contained by the interior of the vehicle. My assessment is that this was reasonably effective shooting under pressure. I also agree with the defendant that shooting the tires was not a real option. If it had any effect at all, it would have been to leave the truck less capable of control.

[21] Constable Harris was questioned on his knowledge of traffic in the area, including that from the nightclub across the road. He was confronted on the distance to an office building, to the south of the parking lot and the distance to the Tim Hortons' drive-through several hundred meters beyond it. His response indicated that he was aware of these considerations. It was also suggested to him that the female of concern could have jumped back into the truck as it was being reversed. Constable Harris reluctantly agreed that this was a possibility, but was unshaken in his belief that John was the sole occupant when he fired on the truck. I view the defendant's concession on this farcically remote possibility as politeness to the examiner without further significance.

[22] This part of the cross-examination raised the suggestion that the defendant did not consider the danger of unintentionally shooting someone other than John. By implication this additional uncertainty would lend force to the Crown's position that the shooting was an unreasonable response to an unfounded apprehension. In my view, it would take some effort to find a less populated portion of Toronto that evening than this lightly traveled, mainly industrial area. There was no apparent human activity in the direction the shots were fired other than the target, Mr. John. Any discharge of a modern rifled firearm in an urban area contains the possibility that the projectile might strike an innocent target hundreds of meters away by horrible misadventure. That possibility was not reasonably foreseeable that night on Rivalda Road.

[23] Constable Harris was cross-examined on the efficacy of shooting the driver to stop the truck. I suppose that it is possible that a dead or gravely wounded driver would continue to exert pressure on the accelerator. Common experience and common sense would suggest it is far more likely that a dead, dying or wounded driver would not do so. In the tiny window presented to him Constable Harris would not have been able to make a nuanced calculation in this matter.

[24] Constable Harris denied being angry with John or that his blow to the driver's side window reflected frustration. He did not fire his weapon at the time of John's second momentary stop, although he had a clear shot because in his evidence he did not believe that anyone's life was in immediate danger. He said that he would not have shot at John to prevent his flight. He conceded that his belief that the passenger was in mortal danger was in error. As a result, he was relieved that he had not shot John. His testimony suggests that Constable Harris was not in a reckless, panicked or frenzied state of mind before the shooting. There is no evidentiary basis for the suggestion that he fired at John to prevent his escape or out of frustration or rage.

Other Witnesses

[25] Two other witnesses present at the time of the pursuit and shooting testified. Their evidence did not assist the Court. Ms. Jahlisa Barclay was the front seat passenger in the tow truck driven by John. She was pleasant and well-intentioned but her memory and her perception of the events were deeply flawed. She recalled that the police rammed the tow truck on multiple occasions. She did not remember John reversing at high speed down Rivalda. She told the Court that John reversed the truck in response to police shooting into it. All of these assertions were clearly contradicted by the video evidence. She conceded her failures of memory and perception candidly when contradictory portions of the video were played to her.

[26] Constable Sohail Nadeem testified for the defense. He was a difficult witness. He was intensely combative with Crown Counsel under cross-examination. His recall was poor.

[27] The defendant's account was more reliably corroborated by the video as described above. I could not determine from the video whether the front passenger exited the truck towards the rear. But I see nothing in the video that contradicts the defendant's account of events.

Legal Analysis

Exigent Circumstances

[28] From the moment the truck started to reverse to the moment shots were fired at the truck, two to three seconds elapsed. Constable Harris did not have the luxury of thoughtfully analyzing the situation and contemplating a solution. As soon as he thought the passenger was being dragged under the swiftly reversing tow truck he had to make an immediate decision: To wait or to act. Appellate authorities are replete with the caution that in exigent circumstances both the perception of danger and the response to it cannot be judged against a standard of perfection.

Applicable Law

[29] The governing law is captured in section 25(3) of the Criminal Code:

"… A person is not justified for the purposes of subsection one, 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."

[30] Note that section reads "reasonable grounds" and not "reasonable and probable grounds". The person whose use of force is considered under this section is entitled to be wrong in their belief that deadly force was necessary as long as that belief was reasonable.

Crown's Burden

[31] Before I can convict Mr. Harris, the Crown must prove beyond a reasonable doubt that:

1. I should reject the defendant's evidence that he believed that the life of a women exiting the John vehicle was in immediate danger;

2. I should find that belief unreasonable;

3. I should find the defendant's action in attempting to shoot Mr. John an unreasonable response to that belief.

[32] I say at this point that a finding in favour of the Crown on any one of those three points would result in Mr. Harris' conviction.

Findings and Verdict

I find the following:

1. I accept that Constable Harris believed that the life of the front seat passenger was in immediate danger.

2. That belief was incorrect, but reasonable in the circumstances.

3. The attempt to shoot the driver, Trevor John, was a reasonable act given that belief.

I acquit the defendant of the charge before the Court.

Released: December 16, 2013

Justice M. Block