R. v. Young

Court: Ontario Court of Justice

Citation: 2014 ONCJ 129

Date: March 17, 2014

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CURTIS YOUNG

Before: Justice D. Hackett

Oral Reasons for Judgment Delivered: February 25, 2014

Written Reasons for Judgment Released: March 17, 2014

Counsel:

• C. Stratos and R. Fried for the Crown
• A. Martin for Curtis Young

HACKETT J.:

[1] Introduction

This is a decision after a trial into events that occurred on January 5th and 6th, 2012, when Curtis Young was arrested for allegedly being intoxicated in a public place. Curtis Young stands charged in one information that: he uttered a threat to PC Miller in the booking hall; he assaulted PC Moorcroft once in the search room and once in the cell; he assaulted PC Piccolo in the search room; he obstructed PC Miller by falsely identifying himself; and he fraudulently personated Richard Young. A second information alleging Mr. Young was in possession of marijuana at his arrest was jointly proceeded upon. The evidence from the trial on the primary information was adopted for the purpose of this second trial. The Crown elected to proceed summarily on all counts.

[2] Trial Duration

This trial began on February 4th, 2013, and was originally scheduled for 4 days. In the end, it took 14 days over 9 months. Submissions were completed in late October, but due to a leave of absence, this decision was adjourned to February 25th, 2014.

THEORIES OF PARTIES

[3] Crown's Theory

The Crown alleges that on January 5th, 2012, Mr. Young was very intoxicated and resisted his lawful arrest for being intoxicated in a public place. It is clear that the primary purpose for his arrest was his own safety. At the time of his arrest, the police located 19.88 grams of marijuana in a bag in the pocket of his hoodie. He was subsequently arrested for possession. The police described the accused as assaultive and aggressive towards them throughout the night. More specifically, they allege that: he resisted his lawful arrest by pulling away from PC Miller's hold and clenching his fists; during a strip search at the station, he pulled away from PC Moorcroft, assumed a fighting stance, and swung at and missed him; and he looked like he was going to spit at PC Miller in the cell. As a result of the ensuing struggle in the search room, PC Piccolo sustained minor abrasions to his arms and PC Moorcroft minor soreness to his head. As a result of the ensuing struggle in the holding cell, PC Moorcroft sustained a minor scrape to one knuckle and minor abrasions and scratches to his arms and a stiff back. In this, as in all criminal prosecutions, the onus rests upon the Crown, on the basis of all of the evidence, to prove each and every element of these offences beyond a reasonable doubt. The Crown submits that its onus has been met on all counts.

[4] Defence's Theory

While the defence admits that Mr. Young was drunk, uncooperative, difficult, and verbally obnoxious at times, the defence argues that: there was no lawful arrest; the accused never assaulted the police; and the police used excessive force and assaulted the accused at the bus shelter, beside the transport vehicle, in the booking hall, in the search room, and in the holding cell. The defence points to the extensive facial injuries Curtis Young sustained, along with other injuries, in support of this position. In this regard, there is a Charter application before the court wherein the defence submits that the accused's right to security of his person under s. 7, and his right to be free from cruel and unusual punishment or treatment under s. 12, were violated. The defence submits that a breach of Mr. Young's s. 7 and s. 12 rights has been established on a balance of probabilities, and seeks a stay of proceedings, or the exclusion of the marijuana, and/or a reduction in any sentence under s. 24. This application was blended with the trial on consent. Finally, the defence submits that the Crown cannot meet its onus because there is a reasonable doubt.

OVERVIEW OF EVIDENCE

[5] Admissions and Concessions

The defence conceded jurisdiction and identity. The Certificate of Analysis of the substance seized was admitted, Exhibit 17, and establishes that it was marijuana. Continuity was also admitted. The Crown consented to the admission of photographs of the accused taken at the station that night, Exhibits 15 and 21, and ones taken by his mother on January 7th and 19th, 2012, Exhibits 19 and 20. The Crown also agreed to admit medical reports related to the accused's injuries shortly after these events, Exhibits 18 and 22. In submissions, the defence conceded that Mr. Young misidentified himself by his brother's name, Richard Young, and thereby obstructed PC Miller and impersonated him. The defence also basically admitted that the Crown can meet its onus on the possession charge.

[6] Trial Evidence and Video Recordings

The trial consisted of the evidence of six police officers, Curtis Young, and his mother, Mrs. Young. In addition, a number of DVD exhibits were filed on consent which capture police interaction with Mr. Young at various times that night including: at and in the transport car (Exhibit 3), in the booking area (Exhibit 1), in the search room (Exhibit 1, audio only), and in the holding cell (Exhibit 4, no audio). Both counsel relied heavily upon these exhibits. Defence counsel has specifically agreed that the statements of the accused contained in these exhibits were voluntary and that there was no need to conduct a voir dire on their admissibility. Despite allegations of police misconduct, it is the defence position that the things Curtis Young said on those recordings were of his own free will.

[7] Audio Recording Issues

At the outset, it should be noted that no formal transcript of the audio components of these recordings was produced. As a result, these exhibits had to be played and replayed because it was often very difficult, or impossible to hear what was said. Given that this is not an isolated problem in our courts, it must be said that this is a very expensive and inefficient use of court time. Counsel tried to summarize the audio tracks, however, their notes were incomplete and inaccurate at times and not made exhibits.

[8] Civilian Complaint

A civilian complaint was filed by Mrs. Young in February, 2012. It alleges that the police used excessive force that night on her son. This is relevant to point out because the officers involved wrote not only their own notes at the time, but in March of 2012, they also prepared individual complaint responses.

[9] Criminal Record

Lastly, the accused was cross-examined about his criminal record as a credibility test and he admitted it. His record therefore serves no other purpose in this trial and will be disregarded, despite the Crown's propensity remark to the contrary during submissions.

SUMMARY OF THE EVIDENCE

[10] Overview of Five Stages

The following is a summary of the evidence of the five stages of these events: Arrest, Transport, Booking, Search, and Cell. Considerable detail from the recorded exhibits is provided because of the absence of transcripts. The evidence of the Crown and the defence about each stage differ in significant ways.

A. ARREST – SUMMARY

Crown Arrest Evidence

[11] Initial Response and Location

On January 5th, 2012, at 23:25, three uniformed Constables, Miller, James and Retsinas, responded to a call about the behaviour and safety of a drunk male on Toronto Transit Commission (TTC) property. Upon arrival, they were advised by TTC personnel that the male had left. They were given his description, told what he had done, and advised that he was in possession of a large bag of marijuana. The officers were concerned about his well-being and searched for him. They located a male who fit his description at a nearby bus shelter. Upon their arrival at 23:34, the accused was passed out on a retaining wall, with his legs dangling over the wall, and his back laying on the hill behind. This individual was later identified at the station as Curtis Young.

[12] Arrest Decision

The uniformed officers woke the accused. He tried to stand, but was unsteady and fell against the wall. The officers held him up, questioned him, and tried to identify him. Given his state of intoxication, Mr. Young did not respond in an intelligible manner, and was disoriented and confused. Based upon his condition and information received, PC Miller believed Mr. Young was at risk of harming himself or others, and advised him that he was under arrest for being intoxicated in a public place. The police planned to take him to the station to sober up and charge him under the Liquor Licence Act.

[13] Physical Arrest

PC Miller grabbed the accused's right arm and tried to cuff him to the rear because of concern about his reaction to his arrest. PC Miller testified that he was assisted by PC James. The accused shook off the hold, tensed his body, and clenched his fists. During this part of the arrest, PC Retsinas stumbled and fell. PC Miller decided to take the accused to the ground in order to gain control. PC Miller grabbed Mr. Young's left arm and tripped him to the pavement. PC Miller described that the accused ended up face down, yelling and resisting. The police wrestled with him. PC Miller struck Mr. Young in the ribs to gain control. The accused was cuffed to the rear at 23:37.

[14] Search Incident and Identification

A search incident to arrest produced no identification, but revealed a bag of marijuana in the front pocket of Mr. Young's hoodie. He was then advised he was also under arrest for possession. After being cuffed, the accused eventually identified himself as Richard Young and gave a variety of birthdates. Officers checked this name on their system and were advised that there were warrants outstanding for a Richard Young, who matched this accused. When given his rights to counsel, the accused referred to PC Miller as a "pig". The accused was turned over to PCs Clarke and Gonzales for transport.

Defence Arrest Evidence

[15] Accused's Account of Events Before Arrest

Curtis Young worked till 1:00 p.m. on January 5th, 2012. He then went to a friend's house and drank alcohol. He could not describe what he drank, or how much. He then took a bus home, but fell asleep, missed his stop, and ended up circling back. Eventually, he was awoken by people in unknown uniforms who removed him from the bus. Mr. Young testified this upset him. He then went to a nearby bus stop to catch another bus home.

[16] Accused's Account of Police Approach

The accused described that he was seated upright on the retaining wall at the bus stop, leaning on the side of the shelter, waiting for his bus. He denied he was passed out or sleeping, but admitted he was "pretty drunk" when the police approached. Mr. Young testified he expected trouble given that he was black and the police were white. PC Miller asked how he was, who he was, and why he was there. Mr. Young did not want to answer these questions because he did not understand, and was not told, why he had been stopped.

[17] Accused's Account of Physical Arrest

The accused testified that he was never told he was under arrest. He kept asking why and if anything was wrong and the police said no. PC James then reached for his cuffs. Mr. Young stood back with his arms open and asked why again. PC James then grabbed his arm, pulled him forward, and PC Miller punched him in his left eye. PC James threw him to the ground, but not on his face. This contact caused the female officer to fall. The accused was then hit and kicked and his faced was bounced off the pavement.

[18] Accused's Account After Arrest

After being cuffed to the rear, the officers, who he had never met before, began to call him by his brother's name, Richard. The accused did not know why, did not correct them, and went along with that name. He denied being in possession of marijuana. He was lifted from the ground and taken to the transport cruiser. Mr. Young testified that he was in pain, his left eye was injured, and his face was throbbing because of the punch.

B. TRANSPORT – SUMMARY

[19] In-Car Video Evidence

Once at the transport cruiser, much of the interaction between the police and Mr. Young is captured on the in-car video, Exhibit 3. The activity outside of the cruiser can only be heard, not seen, and not everything can be understood. The significant parts of the audio recording and the related evidence is summarized as follows. (CY stands for Curtis Young, PCM for PC Miller, PCJ for PC James, PCC for PC Clarke, and PCG for PC Gonzales.)

23:51. CY, "Really, you guys are arresting me for passing out tonight." PCM tells him to go against the car. CY repeats "ow" and PCM says he "won't do it too hard". CY complains about his left arm and PCM tells him not to move his hand.

23:52. There are three sounds of cuffs and then a thud at 23:52:19. CY testified this thud occurred after the cuffs were changed before he was put in the car. He described the thud was made by the police hitting his head on the side of the door. PCM denied this. After the thud, a number of indiscernible voices overlap and an officer says, "Rich, you alright now man?" CY asks if he is going to jail. PC Miller, "I don't know yet man." A fourth cuff sound is heard. PCM asks where he got the marijuana, and a fifth cuff sound is heard.

23:53. Police tell CY to move his feet and watch his head twice. CY asks what he did and talks over PCM telling the officer to listen. PCM tells CY about the call, investigating his drunken state, and the discovery of marijuana. CY is told that was why he was arrested and he responds with an inaudible. PCM says that CY did not even know where he was. CY says something indiscernible and PCM responds, "I'll talk to you when you sit down." At 23:53:45, the video shows CY's hands in cuffs as he backs into the vehicle. He does not go directly in and complains about being pushed. PCM, "Ok then, sit down." CY responds repeatedly, "Ask me to sit down." PCM, "Rich, sit down." CY repeats, "Ask me to sit down." PCM again repeats this instruction. One can infer CY starts to move because PCM thanks him. CY is told again to watch his head and move his legs. CY asks what is going on. PCM responds that he just told him. CY slurs, "I understand I'm getting arrested because…..", but does not finish his sentence.

23:54. PCM finishes the sentence for CY and states that he was drunk in public and they found a bunch of weed on him, so he was arrested for that as well. CY, "A bunch of weed?" PCM states that he read him his rights five times. CY confirms he is being arrested for weed. PCM instructs him to put his foot in. CY does not respond immediately, but eventually gets in and the back door closes. CY, "For real sir, weed?", and he curses before his head rolls back against the seat.

23:55-58. CY's head rolls backwards and forward and to the side. A mark under his left eye is visible. His eyes appear to be closed or very heavy.

23:58. The cruiser has not moved. A door is opened and PCG speaks to CY about his name and age. CY tells PCG he is 30 something and 31 and complains that his face is hurting. CY testified that he was 28 at the time. He then asks if he did something wrong and PCG explains he was arrested. CY offers to work things out and states he was just standing at the bus stop. He acknowledges that he was "staggish" and states, "I didn't mean for my face to get busted. I didn't mean to piss you guys off." PCG says he did not piss him off and explains he is just transporting him. CY, "I'm done then," and swears.

23:59. CY apologizes. His head rolls forward. He complains five times that his eye is busted, and says three times that, "I'll go home and I won't say nothing."

00:01. With his head bent forward and with heavy eyes, CY repeatedly says that he has not done anything wrong and asks them to talk to him. He is asked and gives a date of birth of May 15, 1978. PCC indicates he is under arrest for public intoxication and is being transported. CY asks for what and PCG tells him he had a lot of weed and is intoxicated. CY questions, "I'm intoxicated? Whoa, whoa, whoa, come on sir." and pleads numerous times, "I can go home with my face like this."

00:02-03. CY repeatedly tells the transport officer "I didn't do anything man…I was heading home." CY, "I swear….I understand you guys got the weed man…Ok, I understand you got the weed. Just take it and go." CY repeats, "Please, I didn't do anything. I was just walking home." The vehicle begins to drive to the station. CY swears and repeats, "Like I didn't do anything man." He adds, "Even if I did have some weed, I was going home…How did you pick me out of everybody? ... I don't understand that." At 2:56 he complains, "I got punched in my face, but I didn't do anything man." He is advised that he is under arrest for marijuana and given his right to counsel. CY interrupts and over-talks. His eyes are either shut or very heavy throughout.

00:04-09. CY, "I wasn't even fighting with you guys, but I still got punched in my fuckin' face … I'm going to jail with a box in my face … PCG, "I didn't see that at all." CY, "I know you didn't see that, but the other guys seen that, and that's why I'm pleading with you just to let me go. Because, you know what, I served my dues." CY admits he is drunk, but not fighting, "just complaining". He pleads to go home. His head falls forward and back repeatedly and he continues to try to negotiate going home.

00:09. CY complains about his face being "jacked up" and claims he has learned his lesson. He tells them he is not able to breathe out of one side of his nose and sniffs.

00:11:45. CY repeatedly states that he will go home and, "… not say shit…not say nothing." He recognizes the area they are in and pleads to be taken to his nearby home.

00:13. CY, "I got beat up tonight and I still go to jail." He mumbles it's not fair and, with his head rolling, talks nonsense about shooting and court.

00:14:30. CY's body rolls to his right and he lays in an awkward sideways position across the seat for the rest of the drive. From this position, he continues to talk and plead.

00:15. CY refers to it being, "...one ounce of weed, not even a full ounce."

00:16.24. They arrive at the station. CY continues to plead his situation.

00:19. PCM meets the car. The accused's body is still sideways across the seat. The door opens. Given his intoxication and being cuffed to the rear, CY struggles to get out of the vehicle on his own. He sarcastically thanks PCM for helping him. PCM, "I could help you, but I don't want you to bang your head…" CY, "I can't believe you said that." PCM, "I did ..." CY claims he was arrested walking on the road.

C. BOOKING – SUMMARY

[20] Booking Hall Events

At the station, Officers Miller and Retsinas paraded Mr. Young before PCs Piccolo and Moorcroft, the booking officers. PCs Piccolo and Moorcroft testified that the accused was intoxicated. Mr. Young was focused on PC Miller. PC James arrived shortly after with the accused's property. All five officers described that the accused repeatedly complained about PC Miller punching or boxing him in the face and the injury to his eye. Staff Sergeant Johnson then joined them. The officers testified that the accused was rude and would not answer questions directed at him by the Staff Sergeant. PC Miller admitted that at one point he applied force to the arms of the accused while they were cuffed behind his back. Finally, the police allege that the accused threatened PC Miller.

[21] Accused's Account of Booking

Mr. Young testified that his eye continued to worsen at the station. He believed that the police had no reason to approach him or arrest him, and had assaulted him. He was angry and believed that his rights had been violated. No one would answer his questions, or respond to his complaints about his eye and being punched by PC Miller, so he was uncooperative and "rude". He described that while he was speaking to the Staff Sergeant, PC Miller hurt him by applying force to his cuffed arms behind his back. The accused denied he threatened PC Miller and testified that the words he used were to correct PC Miller because he believed PC Miller had told the Staff Sergeant that he had swung at the officers.

[22] Booking Video Record

The video recording of the booking, which lasts approximately eleven minutes, has been marked as Exhibit 1. There are some things on it that cannot be understood. The main evidence about this period of time is summarized as follows. (PCP stands for PC Piccolo, PCMo for PC Moorcroft, and SSJ for Staff Sergeant Johnson.)

0:25 In the presence of PCM, PCR, PCP, and PCMo, CY says, "I didn't even do anything?" He asks why he got arrested. PCM tells CY about the booking camera and audio recording. CY asks why he has been arrested and PCM responds he has been told 5 times. PCM tells CY to take a seat in the corner.

0:26 PCM explains to the two booking constables why CY was arrested and the outstanding charges. CY stares at PCM and asks why? PCM responds that he was drunk. CY, "Why pull me out of everybody there?" PCM tells him he was passed out at the bus shelter. CY, "You're going to say I was passed out." PCM, "You're going to say you weren't?" CY challenges him, "People wake up with a knot in their face right?"

0:28 CY, "Why am I fucked up like this for no reason?" and states his girlfriend will not be able to recognize him and he will not get "pussy tonight". PCM engages and says, "Like every other night." PCJ arrives in the booking hall with CY's property.

0:29 CY, "I didn't do nothing. How'd you separate me from the whole fucking crowd?" PCM comments on how wasted he is making that remark because he was alone at the bus shelter. PCM tells him about the outstanding warrants.

0:30 PCM tries to work out a deal with CY, but CY responds at 30:06, "You punched me in the face. It's too late for that shit." At this point, PCJ is beside PCM, PCP is in front of CY at the desk, and PCMo has his back to him behind the desk. PCR is facing towards CY, a little further away. PCM does not respond to CY and he and PCJ immediately turn away from CY and face the desk. At 30:29, after looking around the walls, PCM asks the booker, "Are we on?", clearly referring to the recording equipment. PCP says yes, and tells PCM to advise CY, which he does for the second time. CY responds at 30:49, "Was that before or after you punched me in the face?" and then louder at 30:53 "Was that before or after you punched me in the face?" At this point, PCM, PCJ, PCR and PCMo are near and facing CY. PCM does not respond.

0:31 CY says something indiscernible to PCM who turns and talks to him about the warrants. The officers then engage in an unrelated conversation, ignoring CY.

0:32 CY stomps his feet and states, "I got boxed in my eye." PCM, "I don't even know what that means." PCR, "You got a box in your eye?" CY, "Do I look normal to you, honey? Does my eye look swollen or not?" PCR tells him she is not his honey. This all takes place in the presence of PCJ, PCP and PCMo. At 32:39, SSJ arrives.

0:33 PCM describes the arrest and warrants to SSJ. CY is still seated in the corner. All 4 officers appear to be paying attention to the SS's interaction with CY. PCM states that CY has been read his rights to counsel, but is intoxicated. He explains that CY has asked five times to re-read them and says, "…so I'm not sure that he quite understands." CY injects, "That's a lie." PCM requests a strip search and advises CY will be held for show cause. SSJ asks CY his name. CY does not reply. PCM tells him to answer SSJ. SSJ asks if CY can stand and he gets up on his own. She tells him to "stand over here" and explains she needs to ask him questions. CY moves in front of the desk with PCM and PCJ on either side, each holding one of his arms, which are still cuffed behind his back. SSJ asks his name again. CY, "You can ask me questions, but I don't know if you'll get answers ..." SSJ again asks his name. CY, "I'm a little pissed off right now because I am not getting no…" SSJ speaks over him and says, "Rich, what is your name" and he continues, "…answers to my questions." PCM tells him to show respect. CY, "Heh, nobody's respecting me right now." SSJ asks for his date of birth. CY, "I ask you for a little bit of respect about what the hell's going on right now. You know what that did? My eye's swollen right about now, so therefore…"

0:34 In the midst of Mr. Young's first complaint about his eye in front of SSJ, at 34:01, PCM's free arm goes behind CY's back where the officer's other arm is already holding CY's right arm. PCM testified that he bent CY's wrist back, pulled his arm up, and squeezed. While this force is being applied, CY states at 34:02, "I'm going to pull a fuckery right now. You can squeeze as much as you want, you can hurt me as much as you want." At 34:07, PCM returns his hand to the front and CY continues, "We're on camera. Squeeze, I dare you." In court, CY described this "fuckery" remark as "my mouth was embarrassing". At the same time, he stated that the police are trained to deal with "a mouthpiece" and the way they dealt with him that night lacked humanity. CY testified that PCM squeezed his cuffs and his right wrist really tightly. CY and SSJ then talk over one other as she confirms he understands he is under arrest and his rights. CY, "I also understand I ask questions and nobody answers my questions." SSJ, "Listen… this is not the place for your questions." CY over-talks, "This is why I am the way I am…It's not my fault. I tried to be nice to my friend (looks to PCM) and to my friend (looks to PCJ)… I don't even know if you (looking at PCJ) arrested me…. But I know he (looks at PCM) did ..." At 34:40 and again at 34:45, SSJ asks if he has any medical problems or injuries and CY initially states no. SSJ then describes the injury to CY's eye and points to her own left eye. CY agrees with her at 34:54. At 34:55, PCM, "During the arrest, he was brought to the ground …" CY over-talks, "On yeah, apparently I was a bad …" PCM over-talks, "He pushed…" and PCM points to PCJ and PCR, who are present. CY interjects, "This is ridiculous…"

0:35 PCM continues, "He pushed both officers …," again pointing at his two partners, "… clear away." CY faces PCM and over-talks, "…knocked in my eye, this is the reason why…" The Staff Sergeant interjects that she is trying to talk to the officer. PCM continues, "… myself, to try to gain control of his arms. He was kind of flying around." As he says this, PCM demonstrates a small swing of his arm, which is extended at his side with his hand in a fist. PCM then points to the ground and says something indiscernible. The other five officers are facing towards PCM and CY when all this is said. Although PCR's face cannot be seen, her body is facing CY. At times, PCP and PCMo are working at the computer. CY turns towards PCM as he makes this gesture. CY testified that he believed PCM had told the SSJ that he had tried to hit the officers and this shocked him. CY immediately makes the alleged threatening remark at 35:10, "Yo, I was swinging at you? Notice how you look perfectly nice. But if I swung at your ass, I'd go right through your ass block. Trust me. I'm a strong person eh. I can be quite strong. I can. I don't look like that way, but I can be quite strong." SSJ asks if he has consumed drugs and CY replies, "No, I had a little bit to drink…" He would not say what, and says "Why? Because this guy hasn't even explained to me why he's arresting me. The way you are treating me is not fair." At 35:55, in response to SSJ's question about his mental health, CY states, "Why are we focussing on me…" SS talks over CY, "Because while you are here I have to take care of you." CY simultaneously, "…and not on (looking at PCM) what happened tonight?"

0:36 CY, "My eye is closing." SSJ over-talks and authorizes a strip search. CY repeats, "My eye is closing.", three more times looking over his shoulder at SSJ as he is taken into the search room by PCM and PCJ.

D. SEARCH – SUMMARY

[23] Search Room Audio Record

The booking hall DVD, Exhibit 1, is an audio record of what happened in the search room over a period of approximately five minutes. There are many things said that are not discernible. The following is a summary of the significant evidence.

0:36 As they enter, PCM has a hold of CY. Voices are inaudible. CY, "I don't care yo…I'm stronger than you." The door to the room closes at 36:14. CY testified that PCM and PCJ began to push and rough him up. PCJ, "Heh, relax." CY, "I didn't hit you. I didn't hit you." Meanwhile, in the booking hall, PCMo, "This is not going to go well." SSJ tells the two bookers to go help. In the search room, CY growls loudly, "Why, why, why?" An officer yells, "Ok, calm down." CY, "I'm not fighting you. All I'm just saying…" PCMo enters the room at 36:31 and PCP remains at the open door and puts on one plastic glove. CY continues in a lower voice, "…all I'm saying is…be reasonable". An officer interjects at 36:32, "Turn around, turn around." CY continues, "…be reasonable, that's all I'm saying is be reasonable." PCM tells CY to turn around twice more and he responds, "…be reasonable. Ok, ok." Prisoners are turned around in order to remove cuffs. PCP goes to get another glove from the desk leaving the door open. An officer says, "This is not funny." CY, "Ok." At 36:44, PCP is back at the door to the room and there are two sounds that CY identified as PCM slapping him back and forth across his face. PCM was not sure about the sounds, but said it might be clapping. PCJ testified that these sounds were PCM clapping his hands to get the accused's attention because he was not listening. PCP and PCMo both testified they sounded like a plastic search glove being adjusted. After these noises, PCM, "Start listening." CY, "Ok. I've been listening." PCM, "No you haven't." CY, "I've been listening, that's how my eye ended up like this. …I've been listening, that's how my eye ended up like this. Ok. You can twist as high as you can." An officer, "Yo, Richard." CY, "…your motherfuckin' face…"

0:37 CY, "You can twist it up as high as you motherfucking want." PCM, "Alright." CY, "Well guess what, my mouth is still going to motherfucking run." PCM, "Alright." CY, "It's going to motherfuckin' run and run and run and run and run." PCP closes the door. CY, "Because you know what, I've been polite with you. You treat me like shit. I don't know what the fuck I did to you, but, you treat me like shit. I don't know what I did to you for you to treat me like shit. …" At 37:24, a cuff sound can be heard. Presumably the cuffs are removed at this point. PCM testified that after the cuffs were removed, CY turned and stared at PCM. PCJ testified that once the cuffs were off, CY assumed a bladed fighting stance with fists. PCM, "Are you going to chill out?" An officer, "Or, are you going to fight us?" CY swears. Voices overlap. PCM, "We need your jacket off. I'm telling… your jacket, then this, ok? Can you get that off? Then your belt, shoes and pants." CY says something indiscernible. PCM, "That'd be great. Thank you. Alright?" At 37:54, there are four officers in the search room, the cuffs are off, and CY appears to be co-operating. The next audio remark is a reference to CY's sweater, so presumably he removed his jacket. Unlike the ongoing noise to this point, things are quiet for 6 seconds.

0:38 PCM, "Can you take your sweater off." CY testified that he felt more comfortable with the new officers being present and ignored PCM. He described that PCM stared at him with a "cold grill." He felt PCM was waiting for an opportunity to pounce on him. The voices are mumbled, but all is calm. PCMo, "Take your sweater off." CY, "Where were you when this guy was beating me?" At 38:14, PCMo repeats, "Take your sweater off man." An officer orders louder, "Heh, take your sweater off."

0:38:18-40 CY testified that PCM can be heard slapping him for a third time at this moment. An officer repeats, "Take your sweater off.", followed immediately by CY, "Whoa, whoa, whoa, whoa, whoa…" PCM, "Richard". In court, CY acknowledged that in addition to PCM, PCMo also tried to get him to take off his sweater, but he would not co-operate with him either. CY agreed with PCMo that when PCMo grabbed his sweater he "jerked away". At 38:22-24, an officer, "Don't get stupid, don't get stupid!" with escalating volume. At 33:25, CY loudly, "What the fuck?" followed by a noise at 38:26. CY testified that this was PCM punching him in his right eye. CY immediately repeats, "What the fuck?", and at 33:28 "Don't you touch me..." There are no statements from the officers between 33:24 and 33:28. PCM, PCP and PCMo testified that around this time, CY assumed a fighting stance and swung at one or more officers and missed. Between 33:29-36 there are sounds, including two noises followed by a third louder noise at 33:24. One officer testified that these were sounds of a struggle. PCJ testified that the louder noise was when they all fell to the ground. Counsel agreed that the alarm, which I frankly cannot hear, was activated on the search room wall at 33:33. However, SSJ and PCR only react at the desk and move towards the door at 33:36, after an officer in a loud voice says, "Stop resisting."

0:38:40 An officer yells, "Get on the ground, get on the ground." PCJ testified that this meant that CY, who was already face down on the ground, was trying to push himself back up. SSJ and PCR then enter, followed at 38:46 by two other officers, who rushed from other areas of the building. At 38:49 an officer yells, "Stop fighting. Stop fighting." A fourth additional officer enters at 38:52. At 38:54, an officer says, "You ok now?" At 38:55, the first officer exits the room. At 39:00, an officer says, "Stop fighting." Voices can be heard, including CY, but they are not discernible. During the struggle, CY testified that he was jumped and everybody was hitting him. He testified that: he was kicked on both sides of his torso and on the side of his head; he keeled over; and he was unconscious for a time because he does not remember falling down. When he came to, he was being kicked in his head, neck and back, and held by his legs. He testified he could not breathe because of the weight on his back. CY believed he passed out again. PCM gave evidence he struck CY a couple of times in the ribs to wind him and kneed him to regain control. PCM and PCJ testified CY swung and kicked, and they had to get on his legs.

0:39:20 One officer comes out and gets shackles. CY is then shackled and a partial search completed. Voices can be heard, but again they are not discernible. At 40:23, CY, "I didn't even attack you guys, you attacked me." None of the officers can be heard responding to this accusation. Things are then quiet.

0:41:14 The door opens. Officers yell, "Get up, get up." CY repeats, "Oh my God, ok,ok,ok,ok,ok,…." CY is pulled out of the search room by officers in shackles, without handcuffs. His pants are falling down. PCM orders him to stand up. CY responds that he is trying, and says, "Chill out man…ok,ok,ok,…," He stumbles down the hall towards the cell with three officers holding onto him and states, "I understand you guys don't like me. I understand that, I understand that."

[24] Police and Accused Injuries from Search

PCs Moorcroft and Piccolo described receiving minor injuries during this struggle. The accused received significant injuries over the night. Other than his left eye injury from the arrest, it is difficult to know which injuries were specifically from the search struggle.

E. CELL – SUMMARY

[25] Cell Events

The officers testified that the accused was looking at PC Miller once they were in the cell. They concluded, at the same time, that the accused was going to spit at PC Miller. As a result, PC Moorcroft grabbed the accused's head and pulled it down. The accused then grabbed both of his forearms and pulled PC Moorcroft into the corner and a melee ensued. Mr. Young continued to hold his left arm and the officer repeatedly said, "Let go of my arm." until he was freed. PC Moorcroft received minor scratches and abrasions to his arms and a scrape to his knuckle that he attributed to the accused.

[26] Accused's Account of Cell Events

The accused testified that he was not going to spit at PC Miller. He described that PC Moorcroft grabbed his head for no reason and pushed it down, putting all his weight on the back of his head. PC Moorcroft then pushed his head backwards and forwards and backwards again. Mr. Young could not breathe, so he moved his head to the side to relieve the pressure. He stated that PC Moorcroft then pushed him back into the corner and the officers piled on and hit and punched him repeatedly. Again, Mr. Young suffered significant injuries that night. It is difficult to determine which ones were from the cell struggle.

[27] Cell Video Quality Issues

Exhibit 4 is a DVD depicting what happened in the cell. It is of poor quality in that it shows one frame per second, resulting in a choppy, incomplete record. In addition, there is no sound. These limitations on the cell recording are unfortunate given how much time was devoted to playing and replaying these images to try to sort out who did what, when. Lastly, it should be noted that the search and cell video clocks were not synchronized.

[28] Cell Video Summary

The following is a summary of the cell evidence over a three minute period.

39:36-39. PCMo and PCP enter with CY and move him towards the cement bench. PCMo is closest to the back of the cell wall at all times.

39:40-41. CY is settled on the bench by PCMo and PCP, who are facing him.

39:42-43. PCM enters and stands to PCP's right at the door end of the bench with his back to the camera. It appears that CY is looking to his left towards PCM.

39:44-49. PCJ enters and stands closest to the door and furthest away from CY with his back to the camera. He is to the right behind PCP and to the left behind PCM. The accused appears to continue to look to his left towards PCM.

39:50. PCP is crouched in front of the bench, looking towards the back wall. The accused is looking down towards the ground. PCP is transferring one leg shackle from CY to the ring on the lower part of the bench. PCMo has a hold of at least CY's left wrist and is standing above CY with his head facing down towards their hands. PCJ testified PCMo had both of CY's wrists.

39:51. PCM is still standing and reaches forward towards, but still above CY. CY's head has changed position. He is now looking slightly down and towards his left hand. PCM is about to take control of CY's lower left arm from PCMo. PCM testified he put one arm on CY's left wrist and one on his elbow. PCMo maintains control of CY's right arm.

39:52-56. CY's head is still looking down to his left hand. PCM is still above him to CY's left, but a little bent over looking to his hand. He testified he was still engaged with CY's left arm. PCP is visible at 39:52-53 and is still crouched, looking to the back wall and down to the shackles. His back is to PCM and PCJ. After 39:52, PCP is blocked from view. PCMo has a hold on CY's right wrist with his left hand and is standing above and in front of CY on his left side. PCJ remains standing behind PCP, and behind and to PCM's left.

39:57. PCMo now has his right hand cupped on the back of CY's head, and is still holding CY's right wrist. PCM still appears to have CY's left wrist. At this moment, CY's head is upward facing towards PCM. PCP is not visible. PCJ and PCM have not moved.

39:58. PCM and PCJ still have not changed their positions. PCMo still has his hand on the back of CY's head. CY's head is still to his left towards PCM, but it has moved up a little. PCP is still bent over out of view.

39:59. No one changes position, except that PCMo's right hand has moved with CY's head in a downward motion towards CY's lap.

40:00. No one has changed position except that PCMo's arm and CY's head have moved backwards towards the back wall.

40:01. PCMo brings CY's head forward again with his arm, towards CY's lap. Nothing else has really changed about the positions of PCJ, PCP, and PCM.

40:02-11. PCJ moves for the first time and gets on the bench. PCP is now visible and is still crouched on the ground in front of CY. Both PCMo and PCM engage in a struggle with CY in the corner, but their backs block the view.

40:12-31. PCMo, PCM, and PCJ are leaning into the corner on top of CY in a struggle. PCP bends to get up and then engages in the struggle. Their backs block the view.

40:32-34. PCMo pulls out and looks at his right arm. The struggle continues with the others in the same positions.

40:35-39. PCMo goes back in to help in the foot area. The other three continue to block the view of the struggle and their positions remain basically the same.

40:40-46. PCMo backs away from the bench and leaves. One of PCM's arms is free.

40:47-42:43. PCJ moves from the centre of the melee, backs off the bench, and is no longer engaged with CY. PCP and PCM continue to engage with CY. PCP bends down again towards the shackles while PCM holds onto CY.

42:43-51. PCP starts to get up and PCM is still engaged with the accused. At 42:44, all three remaining officers begin to leave. No movement is seen from CY.

42:52. CY is alone in the cell lying flat on the back half of the bench, with his arms above his head, his legs off the bench, and his head in the corner, not moving.

[29] Accused's Injuries

Mr. Young sustained significant injuries that night as a result of struggles with the police at his arrest, in the search room, and in the cell. The worst and majority of these injuries were to his face and are best shown in the booking colour photograph, Exhibit 21. The medical reports for Mr. Young, Exhibits 18 and 22, were written shortly after these events. They describe a series of injuries and symptoms that include: concussive recurring headaches; photophobia; nausea; lightheadedness; abrasions and bruising bilaterally to the periorbital and temple areas; swelling of the left eye; neck tenderness and stiffness; cervical strain; and something indiscernible about his mouth. Mr. Young underwent a CAT scan and X-rays and was prescribed pain killers. Exhibits 19 are poor quality pictures of the accused's face at the detention centre the next day. Exhibit 20 is a series of eight photos of the accused's injuries taken shortly after his release. They show: two black eyes, a mark on his nose, blackened lips, swelling and a cut to his inner lip, three chipped teeth, marks on his forehead, marks at the temple, abrasions on his wrists, a mark on his left shoulder, and bruising to his ribs. At trial, the accused stated he still suffers from migraines as a result of what happened to him that night. This was corroborated by his mother.

[30] Police Injuries

PC Moorcroft sustained a minor knuckle scrape and minor abrasions and scratches to his arms as a result of the accused's actions in the cell. See Exhibit 12.

ISSUES

[31] Main Issues

At trial, in addition to the Crown's onus of proof beyond a reasonable doubt, the main issue is the assessment of credibility and reliability of the witnesses and the weight to be applied to their evidence. On the Charter application, in addition to the onus on the defence on a balance of probabilities, the main issue is also the assessment of the credibility and reliability of the witnesses and the weight to be applied to their evidence. Given that this was a blended trial and Charter application, the assessment of the evidence for both will be dealt with simultaneously.

ASSESSMENT OF THE EVIDENCE

[32] Organizational Note

This section is divided into the five stages of these events for organizational purposes only. Despite these divisions, this court is mindful of all of the evidence in this proceeding as it makes these observations and draws these conclusions.

A. ARREST – ASSESSMENT OF EVIDENCE

Condition of the Accused

[33] Intoxication and Credibility

Curtis Young was significantly intoxicated that night. His level of intoxication affected his memory about his condition when the police arrived and what happened before his arrest. His evidence about this time period is internally inconsistent, and contradicted by his statements that night to various officers and by police testimony. I also find he tried to minimize the effect alcohol had on him that night in court and lied to the police and a doctor about the extent of his alcohol consumption that night. Finally, I find Mr. Young also lied to the police that night and to this court about his knowledge of the marijuana. The following are some features of the evidence which support these findings.

[34] Inconsistencies About Condition at Bus Shelter

The accused testified that when the police approached him, he was seated on the wall, but he denied being laid back and sleeping as the officers described. However, on the transport video, the accused contradicted his testimony and inconsistently claimed to have been, "just standing at the bus stop", and "just walking home". Mr. Young also testified he had fallen asleep on the bus earlier, but did not know who removed him from that bus.

[35] Inconsistencies About Alcohol Consumption

Mr. Young testified that he could not remember how much he drank, but said it was quite a bit. In contrast, he told the booking Sergeant that he had "a little bit". In cross, he could not remember what he drank and stated it was probably beer. He agreed in cross that he probably had more than two beers, but then could not explain why he told the doctor at the hospital that night that he "only had two beers". See Exhibit 22.

[36] Speech and Coordination Issues

It was suggested to Mr. Young in cross that the transport video demonstrates he was slurring his words, he agreed. When it was suggested that this slurring was because of alcohol, Mr. Young's first answer was not responsive. His second answer was that it was the result of a combination of being hit in the head and alcohol. Yet, he also admitted in cross that he was slurring his words at the side of the road before anything physical happened. The transport and booking video recordings show not only that Mr. Young's speech was slurred, but also that: he was not able to remember things that were being said to him; he could not follow simple instructions; and when seated in the cruiser, his head kept rolling about and he had difficulty keeping his eyes open and sitting upright. While the injury he received as a result of his arrest might have added to his difficulties, they do not account for most of his trouble given his problems remembering what had happened earlier before the police approached him.

[37] Lies About Marijuana

With respect to the seized marijuana, the accused testified he had no idea where it came from. When asked if he was in possession of marijuana that night, he said "probably". Curtis Young testified that he did not see marijuana at the scene, but inconsistently told the transport officers, "Ok, you guys got the weed man." When asked more generally in court about 20 grams being almost an ounce of marijuana, he testified he did not know what an ounce was. Yet on the transport video, the accused told officers it was, "one ounce of weed…not even an ounce".

Arrest Grounds

[38] Lawfulness of Arrest

I find that Mr. Young had an attitude that night which, combined with alcohol, significantly affected his reaction to the police investigation and led him to challenge and not co-operate with police throughout the night. I also find, based upon the accused's condition and PC Miller's knowledge at the time, including information received, that he had, both subjectively and objectively, reasonable and probable grounds to arrest Curtis Young for public intoxication under the Liquor License Act. The following pieces of evidence support these conclusions.

[39] Accused's Preconceptions About Police

Mr. Young told the court that when the officers approached, he had a preconceived idea that race was going to be an issue because he was black and all the officers were white. Mr. Young testified he was upset about having been taken off the bus earlier. He also felt that the police had no right to approach him and no grounds to arrest him. On the transport and booking videos, the accused questioned why the police had picked him out of a group of people at the bus stop on three occasions. Clearly, on all the evidence, there were no other people at that bus stop and he was not singled out. I find that the sense of unfairness Mr. Young felt that night about being picked upon by the police before his arrest is not supported by the evidence.

[40] Identification Attempts

PC Miller testified that they tried to identify the accused before his arrest, but were not successful because Mr. Young was not able to answer questions because of his impairment. Mr. Young agreed he was not co-operating with their questions and, in his words, was "playing cat and mouse" because he wanted to find out why he had been stopped. Defence counsel suggested in cross-examination that police did not ask the appropriate questions because they made no note of doing so until they wrote their complaint responses two months later. In my view, the failure to make notes of questions that were not answered and answers that made no sense, was not unreasonable in these circumstances. In any event, the accused testified that the officers had asked such questions and had tried to identify him before his arrest.

[41] Police Concern for Accused's Welfare

The accused also testified that PC Miller demonstrated concern for his condition when he first approached and asked, "Heh bud, are you alright?" In my view, based upon all the evidence, it should have been apparent to the accused at the time, if he had been sober and/or had less attitude, that the police were concerned about his well-being, particularly given that they could not identify him, despite their efforts. In cross-examination, the defence was also critical of PC Miller's decision to arrest Mr. Young instead of trying to find a less intrusive option. The overwhelming evidence is that Mr. Young was significantly intoxicated and could not, and/or would not provide the police with his identity. In my view, it would not have been reasonable for the police to have waited for him to sober up in order to develop another option short of arresting him for public intoxication.

The Arrest

[42] Notification of Arrest

The accused testified that he was never told why he was arrested at the scene. I reject this evidence for the following reasons. On the transport and booking videos, he made similar complaints. These claims are contradicted by statements he made on both the transport and booking videos, and by the evidence of the officers. Mr. Young even refers to knowing he was arrested for passing out and possession on the transport video. I find that Mr. Young was initially advised he was under arrest for being intoxicated in a public place, and subsequently for possession of marijuana. As PC Miller explained to the desk sergeant, and I accept, Mr. Young was too intoxicated to retain what he had been told, plus, in my view, he also had an attitude that contributed to him not accepting what he had been told.

Alleged Punch and Grounding

[43] Credibility Issues

The accused attributed his swollen left eye to a punch from PC Miller as he was grounded. He claims that this use of force was excessive in all the circumstances. Based on all the evidence, and in particular, for the reasons set out below, I find that Curtis Young's memory about how this arrest was effected was very poor, inconsistent, and unreliable. He not only lied at the time of his arrest and in court about the marijuana, but he also lied to the police about his identity and to this court about how he was identified. I find his lies were for the purpose of protecting his interests. The police evidence is also problematic and I find the officers' evidence is not credible or reliable. In this regard, as set out later, they were prepared to effectively jointly lie about Curtis Young's aggression during his arrest to their superior. However, I cannot find that this lie is enough to corroborate the allegation of Mr. Young. For the reasons set out below, I also cannot find that his eye injury corroborates this allegation either. Without corroboration, his allegations are tenuous given the issues with his evidence.

[44] Missing Independent Witness

It must be remembered that there were other more independent witnesses at the scene, namely one or more TTC special constables, who have not been called to testify. One of them must have seen this arrest given evidence that indicates TTC cuffs were initially used to secure Mr. Young. In my view, this TTC officer is a more independent witness and has become material. Obviously, the failure to call him/her cuts both ways given that the Crown bears the onus of proving the offences beyond a reasonable doubt, and the defence bears the onus on a balance of probabilities on the Charter application.

[45] Conclusion on Arrest Force

Based upon all the evidence, and despite strong suspicion, I cannot find that PC Miller punched Mr. Young, or that the police used excessive force at his arrest. The main issues that seriously undermine the credibility and reliability of Curtis Young and the officers and lead to these conclusions are as follows.

(a) The Accused's Evidence

[46] Memory and Consistency Issues

The first issue with Mr. Young's evidence is that, as previously described, his evidence about what happened before his arrest demonstrates that his memory was not always accurate, complete or reliable both that night, and in court, because of his intoxication at the time. Secondly, Mr. Young was inconsistent in describing who did what, both that night and in court. Initially, he testified that PC Miller had the cuffs, then he stated it was PC James. The accused also told this court that PC James grounded him. Yet, on the booking video, he stated he did not even remember PC James being at the arrest.

[47] Mother's Complaint and Testimony

Thirdly, the accused's evidence about this punch is undermined by his mother's testimony. Mrs. Young wrote her police complaint on February 2nd, 2012. She testified that she spoke to her son about these events on a number of occasions proximate to the events, both before and after his release. Mrs. Young stated that she understood the importance of being accurate when she wrote this complaint; she had listened carefully to her son; and she wrote down what he had told her from memory. In cross, she testified that it was not possible that she had got anything wrong, but admitted she may have left something out. On all the evidence, I find Mrs. Young to be a consistent, fair, credible and reliable witness. In her complaint, she wrote, "the police kicked her son awake on a bus", and "cuffed him on the bus before taking him to the cruiser". I accept that this is what her son told her. These two points are inconsistent with the police and the accused's testimony and illustrate how bad his memory was about what happened, even at a time much closer to the events. In addition, her complaint makes no reference to Curtis Young telling her he was punched in the eye at his arrest, as he alleges.

[48] Repeated Complaints About Punch

At the same time, the consistent, repeated allegations and complaints Mr. Young made to the police that night about this punch do not support the Crown's argument that this allegation is not credible because it is not contained in his mother's written complaint. More specifically, Curtis Young is recorded complaining seven times about being punched or boxed: twice on the transport video, when PCs Gonzales and Clarke were in a position to hear; and five times on the booking video, when I find PCs Miller, James, Piccolo and Retsinas were in a position to hear all five, and PC Moorcroft the last two. PCs James, Piccolo, Retsinas, Clarke, Moorcroft and Miller all testified that they heard this allegation. Mr. Young also complained about the injury to his eye and face nine times in the transport video, and eight times on the booking video. These officers also testified they heard the accused's complain about his eye repeatedly. However, at the same time, the number of complaints does not increase the reliability of Mr. Young's allegation. It has to be remembered Mr. Young also repeatedly and incorrectly claimed he was not told why he was arrested that night and that the police had no reason to stop him.

[49] Lies About Identity

The fourth issue with Mr. Young's evidence is that he lied about how he identified himself. The officers testified that after he was cuffed, he identified himself as Richard Young. Richard Young is the name of the accused's older brother. Under oath the accused could not recall how the police came up with that name and suggested it was their idea and he simply went along with it. At the same time, Mr. Young remembered giving the police a number of dates of birth, including his brother's. When asked in cross if he lied to the police about the dates, he was evasive, but eventually agreed he had lied. Subsequently, during the transport video, the accused was asked his age and he gave ages that were older than him and closer to his brother's age. This is consistent with him continuing to pretend he was his older brother. The accused also admitted that he was aware that night that he had to be home by 10:00 p.m. because of his curfew. This provides a motive for him to have lied to the police and this court about using his brother's name.

[50] Eye Injury Corroboration

Fifthly, the defence argues that the injury to Mr. Young's left eye which was sustained before he got to the station, corroborates his allegation. This injury is verified by PCs Retsinas, Clarke, Moorcroft and Piccolo. In addition, a mark under that eye is visible on the transport video. This injury is consistent with a punch, however, in my view, it is also consistent with the struggle on the ground at the scene that was described by both the police and Mr. Young. In addition, the accused had pulled away from the initial grab by PC Miller. It would therefore not be surprising that the police would have gotten more physical and in turn, in his intoxicated angry state, Mr. Young might also have gotten more physical resulting in this injury.

(b) The Officers' Evidence

[51] Credibility and Reliability Problems

The evidence of all three arresting officers, PCs Miller, James and Retsinas, about how the arrest was effected is internally inconsistent and inconsistent with each other. I also find that PCs Miller and James collaborated on their notes and March statements. Further, I find that PC Miller lied about this arrest to his superior officer and exaggerated Mr. Young's aggression. Finally, I find that by their silence, PC James and Retsinas condoned this lie, and are thereby parties to that lie. I therefore find that these four officers are not credible or reliable. The following are the important features of the evidence that support these conclusions.

[52] Vagueness About Initial Arrest

The evidence of all three arresting officers is vague and inconsistent about how Curtis Young was physically arrested after he pulled away from PC Miller. First, in chief, PC Miller testified that when the accused was initially told he was under arrest for public intoxication, he took one of the accused's arms and one of his escorts had the other. Shortly after, still in chief, he stated he only "assumed" that one of his escorts had a hold of the accused's other arm. Yet, in re-examination, he said it was PC James on the other side of the accused. PC James' evidence was that he was standing nearby and PC Retsinas had the accused's other arm; whereas, PC Retsinas initially testified that PC James had the other arm and she was standing nearby. Later in cross, she stated she may have been helping PC James, but did not recall. Clearly, all three officers do not remember who did what at this early stage. This vagueness and confusion is strange because Curtis Young's complaint of abuse was repeatedly brought to their attention before they wrote their notes. In addition, the officers were also told that night that there might be a Special Investigations Unit (SIU) investigation as a result of Mr. Young's injuries. Furthermore, they were aware, two to three months later, that a citizen's complaint had been lodged. One would therefore expect that they would have really focused on what they did and what happened at that this arrest.

[53] Timing Inconsistencies

Secondly, PCs Miller and James testified that after the initial arrest, the accused broke free from his hold by twisting and shrugging his arm away and then made fists. PC Retsinas described that once the accused woke up and realized they were the police, he immediately became hostile and clenched his fists before his was arrested. This timing is inconsistent with PCs Miller's and James' evidence.

[54] PC Retsinas' Fall

Thirdly, there is another more significant conflict between the female officer and the two males. PC Retsinas testified that the two male officers grabbed Mr. Young and tried to put his hands behind his back. The accused resisted, and both male officers took the accused to the ground. She was in the way and backed up, which caused her to trip and fall to the ground. By the time she got up, the accused was on the ground. On her evidence, her fall was an accident. I find PC Retsinas was in the best position to know what happened to her, and I accept her evidence.

[55] PC Miller's Account of Fall

PC Miller initially testified that PC Retsinas stumbled, but he was not sure if she fell to the ground. PC Miller added that this stumble was the point when he "zoned in straight" on the accused and decided to take him to the ground before things got out of hand. The stumble was a significant turning point in this arrest and how it was effected. However, PC Miller agreed that he made no note of PC Retsinas stumbling at the time. In cross, PC Miller said, "So, it was just, you know, one can assume it was – I didn't push her and PC James didn't push her. So………" While PC Miller never finished this sentence, I find this answer indicates he blamed the accused for his sister officer's stumble.

[56] PC James' Complaint Response

PC James did not mention anything about PC Retsinas' fall until cross-examination. PC James agreed that he too did not record this fall in his notes. PC James agreed he wrote in his March statement, "During this struggle, PC Retsinas was knocked to the ground by the male. PC Miller and I then took the male to the ground by tripping him and guiding him to the ground in order to effect the arrest." This quotation is significant for three reasons.

(a) PC James makes it clear in this quote that he believed the accused was responsible for his sister officer's fall. This is consistent with PC Miller blaming the accused for PC Retsinas' fall and taking immediate action. I find that the perspective of the male officers was different than PC Retsinas, and that they over-reacted and misinterpreted the situation. I also find that is why PC Miller "zoned in" on Curtis Young and took him to the ground. This blame provides a motive for the punch Mr. Young alleges he received from PC Miller.

(b) Despite this quote which indicates PC James was involved in the grounding, his evidence was inconsistent and vague about this. His evidence about his involvement changed five times. In addition, when PC James was cross-examined about how PC Miller grounded Mr. Young, he could not say despite the fact that in chief the previous day, he testified that he saw, "PC Miller put his leg in front of the male's feet and pushed him over his leg to throw him off balance and he guided him to the ground." I find PC James' evidence is not reliable about how this arrest was effected. It was also PC Miller's testimony that he and PC James grounded the accused, although when it came to specifics, he too did not know what PC James did.

(c) This quotation from PC James' complaint response is also significant because both PCs Miller and James testified that they did not record PC Retsinas' stumble when they made their notes at the time. However, when these officers were placed in the same room to prepare their complaint responses, they both noted in those responses that something had happened to PC Retsinas. Given other similarities in their complaint responses described below, I find they collaborated on this point in March.

[57] PC Retsinas' Bias

Fourthly, it is also noteworthy in considering the credibility and reliability of the arresting officers, that PC Retsinas testified that she did not see how the accused was taken to the ground because it happened while she was on the ground. When asked if there was punching, she gave a straightforward, "No." Of course, if she did not see how he was grounded, she would not know if he was punched. I find this indicates bias.

[58] PC Miller's Description of Grounding

Fifthly, PC Miller testified in chief that in order to ground Mr. Young, he held the accused's left arm with two hands, tripped him and "guided him" to the ground. Yet, in cross, he testified he did not guide him "slowly", but rather he "threw him" to the ground. I find he tried avoid describing the force he used in chief, which suggests he may have been concerned it was excessive.

[59] PC Miller's Lie to Superior

All of these problems, inconsistencies, vagueness and contradictions in the evidence of all three arresting officers about how this arrest was effected raise serious concerns about their reliability and credibility, especially given the accused's allegation. However, there is an even more serious problem. At the booking parade, PC Miller gave the Staff Sergeant a version of this arrest that was totally inconsistent with the testimony of all three officers before this court. He told her, that, "During the arrest, he (Young) was taken to the ground. He pushed both officers" (PC Miller pointed at PCs James and Retsinas who were present) "clear away …myself to try to gain control of Mr. Young's arms." While it is possible, on his evidence at trial, that PC Miller mistakenly but honestly thought that PC Retsinas had fallen because of something the accused had done, he certainly never testified under oath that he ever saw the accused push her, or push PC James. Neither did either of those officers.

[60] Deliberate Lie and Complicity

I specifically find that PC Miller intentionally lied to his superior about Mr. Young's aggression that night. In addition, based upon the video and their relative positions at the parade before the Staff Sergeant, I find PC Retsinas and James both heard this lie and did nothing. PC Miller even pointed at them and described this pushing not once, but twice. In this regard, it should be noted that PCs Miller and James were both relatively new officers at the time, with just over two years' experience. They had been at Police College together and had worked closely as members of the Toronto Police Toronto Anti-Violence Intervention Strategy (TAVIS) for four months. PC Retsinas had 23 years' experience and was also a TAVIS officer at that time. It is easy to conclude that their allegiance would be to one another and not to Curtis Young. I also find that the silence of PC Miller's partners at the time of this lie make them parties to that lie and its consequences. I find this lie served to increase Curtis Young's vulnerability in that police station and to increase the power PC Miller, and the police more generally, had over him just before the search.

[61] Motive for Lie

I further find that PC Miller deliberately told his supervisor that Mr. Young was more aggressive than he actually was because PC Miller was well aware at the time of the parade, that Mr. Young was accusing him of punching him in the eye at the arrest. Without the booking video system, this lie would never have come to light.

Complaint Responses

[62] Evidentiary Issues with Complaint Responses

Defence counsel cross-examined PCs Miller and James on comparisons between their complaint responses for the purpose of trying to establish collaboration and/or collusion. During deliberations, it was of concern that PC James was asked questions and gave answers about parts of PC Miller's complaint response that had never been adopted by PC Miller. Similarly, there were occasions when PC James commented on comparisons between his own notes and parts of PC Miller's notes, which were also not identified by PC Miller. In addition, PC Moorcroft was asked to compare his Use of Force Report with one purported to be from PC Piccolo without it being identified by PC Piccolo. Crown counsel did not object on the numerous occasions when these comparisons were done and this issue was never argued. While the Crown's failure to object can indicate consent, this is not clear in this case, although it is arguably clearer for the Use of Force Report of PC Piccolo that was filed as an exhibit during PC Moorcroft's evidence without objection. As a result, this court cannot rely upon the answers to comparisons of notes or statements that were not properly identified by their author.

[63] Collaboration on Complaint Responses

Besides PC Miller and James adding PC Retsinas fall to their complaint responses, there are two other issues with their complaint responses. PC Miller described that although he consulted with PCs James and Retsinas about timing and angles when preparing his complaint response, it still contains his own independent recollection. PC James testified that before officers respond to a complaint, they are given a chance to read it. He also testified that each response is based upon each officer's own notes and recollections, but they do consult on times and details "like that" and, in this case, collaborated on the preamble. Yet, PC James later testified that the officers have access to the complaint responses of their fellow officers and get to read one another's complaint responses "at times". The differences in the contents of PC Miller's complaint responses and his notes, set out below, undermine PCs Miller and James assertions that their complaint responses record their own independent recollections.

[64] Hoodie Colour Change

First, PC Miller testified that his notes that night indicate that the accused's hoodie was "black". Yet, strangely, in PC Miller's March statement, he changed the colour to "blue". PC James wrote in his notes that the male was wearing a "blue hoodie", which on all the evidence is wrong. It was black. This change in PC Miller's March statement suggests that it was influenced by PC James' error. However, it is also possible that this change occurred because of the radio call record, which apparently also described the hoodie as blue. This was not put to PC Miller, but at an unrelated point in his evidence, PC Miller described having the radio call record when he prepared his March statement. If PC Miller's colour change was the result of the radio call record, it at least demonstrates PC Miller was not careful in preparing his March statement. If it was as a result of PC James, it undermines the quality of their evidence. Finally, under cross-examination, PC James conceded that it was possible that he and PC Miller discussed the description of the suspect when they prepared their complaint responses.

[65] Date of Birth Change

Secondly, PC Miller wrote in his notes that the accused identified himself as Richard with a variety of birthdates. Whereas, in his March statement, he stated that the accused identified himself as Rich with a date of birth of May 5th, 1979. This date of birth is not one of the dates listed in his original notes. In PC James' response to the complaint, he also states in identical wording that the accused identified himself as Rich Young with a date of birth of May 5th, 1979. When cross-examined on this, PC Miller conceded that he may have gotten the date from PC James in March. This second change in PC Miller's complaint response because of input from PC James, or his records, increases the likelihood that PC Miller was also influenced by PC James, or his records, about the colour of the hoodie. When PC James was asked to compare what purported to be another part of the complaint response of PC Miller to his own complaint response, which was not adopted by PC Miller, this witness conceded that it was fair to say that they collaborated on a lot more than just times and the preamble. PC James then went much further when he agreed with the suggestion that he and PC Miller sat down together in March and "changed bits" and "created a narrative together". In my view, this latter admission is evidence of the recollection of PC James, despite the fact that the relevant part of PC Miller's March statement was not properly identified. I find this part of PC James' testimony undermines the independence of their March statements, affects the quality of their evidence more generally, and suggests collusion.

[66] Collaboration vs. Collusion

The defence has argued that the colour and date of birth changes, the addition of PC Restinas' fall in PCs Miller's and James' complaint responses, and PC James' agreement with defence counsel's suggestion above, establish collusion between these two officers. I, with respect, disagree. In my view, the changes were not material enough in the context of the allegations to conclude that it was collusion as opposed to collaboration. In coming to this conclusion, it is important that there was no evidence of similar problems with more significant aspects of their evidence. I make this finding despite PC Miller's lie and other the police misconduct yet to be reviewed.

[67] Systemic Problem with Complaint Response Process

However, the evidence of PCs James and Miller does raise serious concern about the process for preparing police responses to civilian complaints about police conduct. In this case specifically, this process has undermined the independent recollections of the officers, the quality of the officers' evidence, and resulted in concern about collusion. This concern is heightened by PC James' evidence that SIU investigations are handled differently. In SIU cases, officers are separated for the purpose of making their notes and are not allowed to look at one another's statements; whereas, with civilian complaint responses, according to PC James, officers get to read the complaint, read the responses of their colleagues "at times", and prepare their responses in the same room, at the same time. On the basis of PC James' evidence, police administration bears the responsibility for these problems with the complaint response system.

Arrest Conclusions

[68] Findings on Arrest

Based upon the lies of the accused and the effective joint lie of the arresting officers, and all the issues with all of their evidence, I find it is impossible to conclude, even on a balance of probabilities, what happened to Mr. Young at this arrest. While PC Miller's lie about Curtis Young's aggression to the Staff Sergeant, and his two interventions when the accused was telling the Staff Sergeant about his injury raise strong suspicion and tend to support the accused's allegation, this behaviour could also reasonably have been an attempt to cover up the force he used because he was honestly mistaken about what Curtis Young did to PC Retsinas at the scene.

[69] Specific Findings

For all these reasons, and based upon all the evidence, I find that:

1. the Crown has established beyond a reasonable doubt that the arrest was lawful;

2. the defence has not established on a balance of probabilities that PC Miller punched or used excessive force at the arrest;

3. the Crown has established beyond a reasonable doubt that Curtis Young impersonated his older brother Richard Young to gain advantage;

4. the Crown has established beyond a reasonable doubt that the accused obstructed PC Miller who was engaged in the lawful execution of his duty; and

5. the Crown has established beyond a reasonable doubt that Curtis Young was in possession of 19.88 grams of marijuana.

B. TRANSPORT – ASSESSMENT OF EVIDENCE

The Thud

[70] Ambiguous Sound

The accused testified that his head was hit on the cruiser by the police just before he was placed inside. The defence argues that at 23:11, the in-car audio captures the sound of this assault, the "thud", and corroborates the accused. PCs Miller and Clarke deny this happened. PC Gonzales did not testify. PCs James and Retsinas, who were nearby, testified that they did not see this happen. The Crown argues that the "thud" is an ambiguous sound, and is consistent with the accused banging himself against the car. The in-car camera does not capture the relevant area outside of the vehicle when this thud occurs. In my view, the sound is ambiguous and the evidence does not support a finding on a balance of probabilities that the police banged the accused's head on the cruiser. There are a number of pieces of evidence that are relevant in coming to this conclusion.

[71] Mother's Complaint

Firstly, Mrs. Young indicated that her son told her, shortly after these events, that his head had been slammed on the police car. This was then recorded in her police complaint. While the Crown argues that this allegation has been fabricated, the consistency between the accused's evidence and this out of court statement to his mother is relevant. There is also evidence that the accused did not see or hear the transport video before making this complaint to her. I find that his complaint to her was therefore not constructed from that record.

[72] PC Miller's Sarcasm

Secondly, the defence also argues that the sarcasm in PC Miller's remark to the accused in the sallyport corroborates this allegation. The audio indicates that as Mr. Young struggled to get out of the back of the cruiser, while cuffed to the rear and drunk, he thanks PC Miller for his help. This remark is clear sarcasm on the part of the accused. PC Miller responded, "I could help you. I don't want to bang your head." In my view, PC Miller could have both helped Mr. Young and not banged his head. Whether this is sarcasm consistent with the allegation of the accused is not clear. However, PC Miller's response does indicate his attitude towards Mr. Young that night.

[73] Lack of Complaint

Thirdly, in my view, the audio recording does not support Mr. Young's "thud" allegation for the following reasons. The accused was confronted in cross with the fact that he never complained about his head being struck on the vehicle that night. As noted in the transport summary, there are a number of overlapping voices immediately following the thud that cannot be discerned. Nevertheless, there is no comment thereafter at any point, on any recording, from the accused referring to such an assaultive act. Mr. Young explained in cross that he did not complain at the time because he was very dizzy from being hit in his eye, and he was in the middle of saying something else. In my view, these explanations do not make sense. The recordings that night show that he often and repeatedly made other prior and later complaints about how he was being treated, both immediate and subsequent to the events he was complaining about.

[74] Timing and Context

Fourthly, the timing and context of this thud is also important to consider in assessing the defence position at trial that Mr. Young's head was hit as he was being placed in the vehicle. Prior to the thud, there are the three sounds of cuffs on the recording and after the thud, there are two more. The cuff sounds led PC Miller to recall that he had to change the cuffs because they did not belong to PC Miller, or his partner. He believed they belonged to a TTC officer. PC Miller testified that the accused was put face down and prone against the car in order to make the cuff exchange. The video confirms PC Miller told him to "go against the car." The accused also testified to standing beside the cruiser and the cuff exchange. It was only at 23:53:05, after the fifth cuff sound and 45 seconds after the thud, that the accused was told to move his feet and watch his head. These actions and their relative timing strongly suggest that it was not until after the thud, that the police tried to place the accused into the vehicle.

[75] Ambiguous Police Comment

Fifthly, the first discernible words from the police after the thud were, "Whoa Rich, are you alright man." This comment if sarcastic supports the defence, and if not, supports the Crown. The context and tone are not clear enough to decide.

[76] Alternative Explanation

Sixth, PC Miller believed that the thud was the sound of the accused's body or hand against the car during the cuffing. While the defence suggested it was not his hands because they were already cuffed, the fourth and fifth sound of cuffs on the recording shortly after the thud, suggest that the cuff transfer was not complete at the time of the thud. In any event, even if the accused's hands were cuffed, given that he was significantly intoxicated, he still could have made that sound. It must be remembered that he had lost his balance less than a half hour earlier and had to be held up.

[77] PC Miller's Incomplete Explanation

Seventh, there is some evidence that is consistent with the accused's allegation in PC Miller's re-examination. When this sound was played, he offered that this thud was "us putting him against the car harder …" and he sputtered and never finished his thought. It is not clear why the police had to do something "harder" at that point, however, at the same time, PC Miller was not asked.

Transport Conclusion

[78] Finding on Transport

Despite the credibility and reliability problems with the police evidence, there are also significant issues with the credibility and reliability of the accused, particularly about this time period. The video does not corroborate the accused's version. Based upon all the evidence, I find:

• that the defence has not established on a balance of probabilities that the police applied excessive force to Mr. Young at the transport vehicle.

C. BOOKING – ASSESSMENT OF EVIDENCE

[79] Charter Violation at Booking

The Crown and police allege that Mr. Young threatened PC Miller at the parade in front of the Staff Sergeant. The defence alleges that PC Miller assaulted Curtis Young and then lied to the Staff Sergeant at the parade, which led the accused to contradict him in a manner that the police wrongly interpreted as threatening. I find, based upon all the evidence, on a balance of probabilities, and, in fact, beyond a reasonable doubt, that Curtis Young was assaulted by PC Miller during the parade in the plain view of the Staff Sergeant and four other officers. I also find that a minute later, PC Miller lied to the Staff Sergeant about the accused's aggression during his arrest. I also find that the accused immediately responded to this lie with words that were misinterpreted as a threat. The reasons for these findings are as follows.

Use of Force

[80] Force Not Disclosed in Chief

PC Miller made no mention in chief that he grabbed the cuffed arms of the accused behind his back and applied force at the parade before the Staff Sergeant. This use of force came to light only after the video was played in cross. This illustrates the importance of the video recording device in the booking hall.

[81] Nature of Force Applied

PC Miller described that he bent the accused's palm towards his forearm and raised his arm up behind his back and squeezed. When asked if this is a use of force option, he agreed and yet, when asked if it is designed to cause pain, PC Miller was evasive and only reluctantly agreed that it could cause pain. This reluctance undermines his reliability and suggests he was trying to minimize what he had done. At the time, Mr. Young clearly complained it hurt. His injuries at the end of the night included marks on his wrists consistent with this force. PC Miller agreed that the accused responded, "We are on camera go ahead, squeeze as much as you want." This quick response certainly had the desired effect, because I find that it caused PC Miller to release his hold. This can be seen on the video.

[82] Justification for Force

PC Miller agreed in cross that he applied this force because he was trying to "smarten up" the accused, who was "mouthing off." In re-examination, PC Miller testified that he did it because Curtis Young was "not responding to any questions … following commands ..." I find there were no commands that Mr. Young did not respond to at this point, other than the direction to answer questions. I conclude that this officer applied this force to the accused just because the accused was not answering questions. In my view, the accused's failure to answer the Sergeant's questions is part his right to remain silent. While Mr. Young was obnoxious at times, surely police officers are used to difficult prisoners, particularly some drunks and some people who are mentally ill. They must have training in this regard. I agree with the accused's observation at trial that officers are expected to be able to deal with mouthy and uncooperative people short of force.

[83] Excessive Force

In cross, when it was suggested the accused was not endangering anyone at the time, PC Miller would not agree and stated, "Not yet anyway. I didn't know if he could or if he was going to do something. So I wanted to make sure that we didn't go through the same sort of episode we had with him prior (the arrest) …" This answer does not make sense. Mr. Young was in a vulnerable position, with his hands cuffed behind his back, two officers holding his arms, surrounded by 6 officers, in a police station. I find Mr. Young's failure to answer questions did not indicate things would become physical. I find, based upon all the evidence, that there was no reason for PC Miller to apply this force to the accused and that it was excessive. This is significant because this application of force occurs immediately before the accused's "fuckery" remark.

[84] Provocation of "Fuckery" Remark

PC Miller initially testified in cross, that Mr. Young said, "I'm going to pull a fuckery right now!" before he applied force to his cuffs. This evidence is clearly contradicted by the video which shows it was after. Later, PC Miller testified that he applied this force, "Just before" and right at the time of the "fuckery" remark. I find that Mr. Young's "fuckery" remark was entirely provoked by PC Miller's unnecessary and excessive application of force to his cuffed arms.

[85] Complicity of Other Officers

It is troubling that PC Miller was willing to assault Mr. Young in this manner, in front of his colleagues, and in front of his superior officer. It is clear from the video and I find that PCs James, Piccolo, Moorcroft, Staff Sergeant Johnson and, based on the lower part of her body on the video, PC Retsinas, were all focused on the accused and PC Miller at this moment and both saw and heard these events. Unfortunately, no one present reacted to this assault despite Mr. Young's complaint at the time and their duties. In essence, they are all parties to this abuse of power.

[86] Deliberate Interruption of Complaint

Another serious concern is that PC Miller did not react physically to Mr. Young's previous repeated failure to answer questions before this application of force. Rather, he assaulted Mr. Young at 33:58, just as the accused is in the process of first telling PC Miller's superior about his eye injury. In my view, this is significant. It is clear on the video that PC Miller's force served to distract and interrupt this complaint and effectively silenced Mr. Young's complaint. I find PC Miller's use of force was a deliberate attempt to stop Mr. Young from complaining about his eye to his superior. This makes it even more significant that none of the 5 officers present reacted.

[87] Pattern of Silencing Complaints

Lastly, it is striking and more troubling that about a minute later, PC Miller again silenced Curtis Young during a second discussion about his eye with the Staff Sergeant, when PC Miller lied about the accused pushing PCs James and Retsinas at the arrest. I find that this is not coincidence, but rather two deliberate attempts by PC Miller to divert attention away from Curtis Young's complaints to his superior. I make this finding despite the failure of the defence to establish on a balance of probabilities that PC Miller punched Mr. Young at the arrest. These issues are relevant regardless.

Threat

[88] Alleged Threat

In chief, PC Miller described the threat that Mr. Young directed at him at the parade as, "punch directly through my face or head I think. I can't remember exactly…" After listening repeatedly to the video in court, PC Miller agreed that, after he explained to the Staff Sergeant that the accused pushed his two colleagues at the arrest and demonstrated a small swing, the accused immediately leaned towards him said, "Yo. I was swinging at you? Notice how you look perfectly nice. If I swung at your ass, I'd go right through your ass block. I am a strong person." This is what the Crown alleges was a threat. PC Miller agreed with defence counsel that, upon close scrutiny, the accused's words sound like he is contradicting the officer's description of what had happened at the arrest. Even PC Piccolo described these words as a "possible threat." PC Miller testified that, nevertheless, he felt threatened.

[89] Context of Alleged Threat

Curtis Young testified that he made this remark because he disagreed with PC Miller's statement to the Staff Sergeant that he had assaulted his partners. Given that PC Miller did lie, it is not surprising that the accused interrupted and responded in a verbally rough manner. I find that Mr. Young's words, even combined with his leaning towards PC Miller, are not threatening in this context, particularly given his vulnerable position at the time. Unfortunately, unlike the accused, neither of PC Miller's partners tried to correct him. I find that PCs James and Retsinas thereby condoned PC Miller's lie on the heels of not responding to his inappropriate application of force moments earlier. I find that they breached their professional duties in both regards.

Booking Conclusion

[90] Findings on Booking

Based upon all the evidence, I find that:

1. the Crown has not met its onus of proof beyond a reasonable doubt that Curtis Young uttered a threat to PC Miller during this booking; and

2. the defence has established on a balance of probabilities that PC Miller applied excessive force to Curtis Young at the booking.

[91] Additional Comments on Threat and Police Conduct

However, before moving on to the search, there are a number of other comments to be made about the officers' evidence about this "threat" and what happened at the booking that are relevant to the defence Charter application and the remedies being sought.

Police Conduct

[92] Solidarity of Police

The solidarity of the police, in its negative sense, is evident in four aspects of the booking:

• the way 7 officers ignored Mr. Young's allegation against PC Miller, fully knowing about his injury;

• the way 5 officers ignored PC Miller's inappropriate use of force in front of them;

• the way PCs James and Retsinas ignored PC Miller's lie to their superior; and

• the way PCs Piccolo and Moorcroft and PCs Miller and James colluded in their notes about the "threat", which is yet to be described.

[93] Failure to Report Allegations

Dealing first with Curtis Young's allegation against PC Miller, two transport officers, three arresting officers and two booking officers all heard his repeated complaints and saw his injury. All 7 failed to report them to their superior at the booking. Whether they knew the accused was telling the truth or not, it was their duty to advise her. This silence and inaction served to increase the risk that something else physical could happen to Mr. Young, if he was telling the truth; and to increase the risk of further allegations against their fellow officer, in the case of a false complaint. Had a superior officer known, the arresting officer(s) could have been taken off this case and the situation might not have escalated as it did later during the search and in the cell. Their inaction served to increase Mr. Young's vulnerability and increase the power PC Miller, and the police more generally, had over him.

[94] Booking Sergeant's Responsibilities

According to the video, only one of Mr. Young's complaints about being "…knocked in the eye…" was made in front of the Staff Sergeant. However, because she and the accused were over-talking at the time, I find that the Staff Sergeant did not hear it. Nevertheless, she did hear Mr. Young's complain about his eye on six occasions. The video also establishes that she saw this injury. PC Miller's subsequent description of the arrest to her did not explain how that eye injury was sustained. Given the responsibilities of a booking Sergeant, some inquiry should have been made. In fact, even in his state, Curtis Young identified this issue. At 33:51, after the Staff Sergeant had asked him about his mental health, he stated, "Why are you focussing on me and not on what happened? This is … this is … my eye is closing on me. My eye is honestly closing on me." Ironically, the Staff Sergeant simultaneously told the accused that it was her job to take care of him.

[95] Unprofessional Responses to Complaints

On top of their inaction, both PCs Miller and Retsinas responded to Curtis Young's complaint in an unprofessional manner. When the accused stated he was "boxed" in his eye, PC Miller responded, "I don't even know what that means." Boxing in the sense of punching is not an uncommon term. I do not believe PC Miller's response is genuine given Mr. Young's visible eye injury at the time, and the two specific complaints Mr. Young had made two minutes earlier to PC Miller accusing him of punching him in the face. I find PC Miller's subsequent inquiry of the booker about whether the video was on establishes that he heard these allegations and was concerned about them. PC Retsinas also responded to this "boxed" complaint, "You got a box in your eye?" The tone and delivery of her response was disingenuous. Even the accused, in his condition, challenged her and referred her to his appearance and eye injury. Although he inappropriately called her "honey" when he did so, PC Retsinas zeroed in on "honey" and responded to that, but continued to totally ignore his allegation and injury. In context, I find PC Retsinas knew full well what Mr. Young meant. I find these unprofessional responses of PCs Miller and Retsinas served to dismiss and trivialize the accused's complaint and injury and increased his isolation and their control over him.

[96] Failure to Address Excessive Force

The second example of police solidarity is found in the failure of four constables and one Staff Sergeant to deal with PC Miller's unnecessary application of force to Mr. Young's cuffed arms at the parade. This indicates that all of these officers do not understand the limits of their powers and were comfortable with this use of force; or they understood their limits, but were reluctant to challenge a colleague in order to fulfill their duties. Either way, their silence is problematic and served to increase the vulnerability of Mr. Young and increase the power PC Miller, and the police more generally, had over him before the search.

[97] Failure to Correct Lie

Thirdly, the failure of PCs James and Retsinas to correct PC Miller's lie also served to increase the vulnerability of Curtis Young and increase the power they and PC Miller had over Mr. Young before the search.

[98] Collusion on Threat Evidence

Fourthly, and finally, I find that four of the constables' notes about the alleged threat made by Mr. Young establish that they colluded about their evidence. PCs Piccolo and Moorcroft testified that this "threat" included the words, "box", "fist through your face", and "stronger than I look". Although PC Piccolo testified that his notes were his own recollection and he did not recall speaking to PC Moorcroft about this, he agreed that they both had two identical phrases and one similar phrase in their notes about what was said. More significantly, two of these phrases are identically wrong when compared to the accused's actual words on the video. What is also troubling, is that PC Moorcroft was on the computer when this was said and I find that he probably did not hear the "threat" clearly, if at all. When PC Moorcroft was asked in cross if he consulted with PC Piccolo before writing his notes, he first answered, not before we were separated as a result of the possible SIU investigation. Then two questions later, he changed that to they did speak about the incident before they were separated.

[99] Similar Collusion by Miller and James

Similar to these two officers, PCs Miller and James also quoted the accused as saying "face" instead of "ass". I find that the similarity in their notes and the similarity in their mistakes establish that these officers spoke about this "threat" that night before they prepared their notes. While it is not surprising that the officers may not have heard all of the accused's words, or may not have remembered them at the time, particularly PC Moorcroft, they should have said so in their notes and left the proof to the audio record instead of colluding to reconstruct what they allege was criminal behaviour. If there had not been a video to contradict all of their notes, the consistency in their evidence could have been accepted at trial, Mr. Young convicted, and justice totally frustrated.

[100] Importance of Video Recording

Finally, all of these issues about the misconduct of the police have been identified as a result of the booking video equipment. It is obviously an essential tool in maintaining the integrity of the justice system, particularly for vulnerable drunks, like Curtis Young, or mentally ill people whose condition can often undermine their credibility or reliability. There is no doubt that Curtis Young was drunk, difficult, and single-mindedly stubborn in his views about how he had been wronged that night, but he was entitled to that opinion and to be treated fairly and professionally whether he was right or wrong in his views. The misconduct and solidarity of the police that night all served to increase Curtis Young's vulnerability and increase PC Miller's and the police power over him before he went into the search room and the cell with these same officers. Given that there were further significant injuries occasioned to Mr. Young that night while in their presence, their misconduct is even more significant.

D. SEARCH – ASSESSMENT OF EVIDENCE

[101] Overview of Search Evidence

Both PC James and Mr. Young testified that they anticipated trouble in the search room because of what had already happened. In this context, the police testified that the accused was aggressive first and they had to respond with force; whereas, the accused testified that the police applied unnecessary force to him on four occasions. Based upon all of the evidence, I find that there are serious inconsistencies and contradictions in the evidence of the police. I further find that they have colluded about the description of the accused's aggression during the search. This clearly creates a strong suspicion that the police were unnecessarily aggressive in that room, however, the ambiguity of the audio record and the number of problems with Mr. Young's own evidence is such that I cannot find that excessive force was used in the search room on a balance of probabilities without corroboration. The following are some of the main reasons for coming to these conclusions.

Accused's Search Room Evidence

[102] Initial Roughing Up Allegation

There are four specific defence allegations of police aggression in the search room: some initial roughing up; the twisting; three slaps by PC Miller; and a punch by PC Miller. With respect to the initial roughing up, the accused alleges that the officers pushed him and then PC James pulled on his cuffs while PC Miller pulled his clothing across his neck gagging him. Somewhat consistent with this, the accused can be heard on the early part of the video: saying that he did not hit them, was not fighting, asking "why," and telling them to be reasonable. At the same time, Mr. Young's idea of what police actions were reasonable that night was not always reliable. Without a picture, it is hard to know if these audio remarks relate to his ongoing complaints that night, or to new actions by the police.

[103] Search Commands

Based on what can be heard on the audio, the police did not give any search commands until 18 seconds after entry when they told Mr. Young to turn around at 36:32. This contradicts PC Miller's testimony in chief that he initially gave the accused instructions about how the search would be conducted, and raises a question about what the police did for those 18 seconds. PC Miller also testified that before the booking officers entered the search room, the accused was not following their commands. This too is not supported by the video evidence. However, with respect to both of these points, not everything can be discerned on that video.

[104] Twisting Allegation

Secondly, the accused complained on the video about some twisting. In the context of him not turning around as the officers commanded, he tells the officers twice, "Twist it as high as you want…," but that is not going to stop my mouth. These "twist" remarks are consistent with force being applied to him or his cuffs, as had been done in the booking hall. However, the accused did not specifically testify as to what was happening when he said this. In my view, these remarks are too late in the audio record to correspond to his description of PC James initially pulling up on his arms and PC Miller's action with his clothing. What is clear on the audio is that Mr. Young and the police were engaged in removing the cuffs at that point. The twist remarks are consistent with that activity, particularly given that the accused was not cooperating with the officers' request to turn around, which may have led to the use of some force.

[105] Alleged Slaps

Thirdly, before the cuffs were removed and after the accused is told to turn around, two sounds are heard at 36:44, just before PC Miller tells Mr. Young to "start listening". The accused testified that this was when PC Miller slapped him back and forth across the face. The police denied this. When Mr. Young first gave his narrative in chief, he did not mention these slaps. It only came up after counsel asked if the subsequent punch he alleged PC Miller delivered was the first time he had been hit in the search room.

[106] Lack of Complaint About Slaps

It is also important to note that the accused made no complaint about being slapped in his face immediately after these noises on the audio recording, or at any point thereafter. Given his repeated complaints about his eye injury, if he was slapped back and forth across his face, one would expect that to have caused pain to his damaged eye, and to have resulted in an outcry. Mr. Young did not hesitate to complain immediately about his treatment on many occasions earlier that night and subsequently in the search room.

[107] Ambiguous Sounds

PC Miller did not testify about these sounds until they were drawn to his attention by the audio recording. PC Miller could not explain these noises. He offered that he might have slapped his hands twice in order to get the accused to listen. PC James, who testified after PC Miller, told the court that PC Miller did clap twice to get the accused's attention. In contrast, after hearing these sounds, PC Piccolo testified that they were snapping noises made when he adjusted his plastic search gloves. However, he agreed that when he put his first glove on at the door before these sounds, it did not make any noise. After he returned to the same spot with the second glove, he agreed it was not yet on when these noises are heard, and that its position was not like the one he used in chief to demonstrate how a glove could make such a sound. PC Moorcroft, who testified after PC Piccolo, initially provided some support for his partner's interpretation, but eventually said these noises could be anything. PC Moorcroft acknowledged that he viewed the video before he testified with PC Piccolo and others, but denied discussing this issue.

[108] Assessment of Sounds

Listening to these sounds carefully on the video, and considering all the evidence, I do not accept that they were made by PC Piccolo's glove. In my view, for the reasons given, they are most consistent with claps and not slaps. In considering PC Piccolo's credibility, I also find that he went too far and demonstrated his bias when he testified that these noises could not have been PC Miller slapping the accused because at the time, he was looking down and not into the room.

[109] Third Slap

Finally, a third slap was also alleged by the accused, but this sound was not put to PCs Miller and James and is equally ambiguous.

[110] Alleged Punch in Search Room

The fourth and last defence allegation of excessive force in the search room involved a punch. The accused testified that after he jerked away from PC Moorcroft, PC Miller punched him in his right eye at 38:26 and the melee ensued. However, he later changed that to the officers were all tugging and swinging at him before that punch. Given the unreliability of his evidence about this night, this inconsistency is significant. At the same time, Mrs. Young's complaint in March indicates that the accused complained to her about a punch to his face in the search room shortly after these events. This evidence serves to contradict the Crown's suggestion of recent fabrication as of those discussions.

[111] PC Miller's Use of Force History

PC Miller denied he punched Mr. Young in the search room. It is clear on the video that the accused was not co-operating with the removal of his sweater at this point. It is therefore relevant to consider that PC Miller had already demonstrated in the booking hall that he was prepared to use physical force against Mr. Young for not co-operating. This lends credence to the accused's allegations about this punch. However, the context of this sound on the audio indicates that the accused had just pulled away from PC Moorcroft and a police officer yelled, "Don't get stupid!" before the alleged punch. This comment suggests Mr. Young may have done something.

[112] Summary of Search Evidence

In summary, while there are problems with the credibility of the police that raise suspicion and suggest the accused's allegations are warranted, as will be described, the accused's evidence is also problematic and without corroboration, the defence cannot meet its onus on a balance of probabilities. The audio recordings are ambiguous as to what happened in the search room and do not corroborate the accused's allegation.

Police Evidence in Search Room

[113] Inconsistencies About Aggression

PCs Piccolo, Moorcroft, and Miller testified that Curtis Young became aggressive after they had made numerous demands to take off his sweater and PC Moorcroft touched him to remove it. Three of the officers described that Mr. Young pulled away, took a bladed stance, and swung at PC Moorcroft and missed. However, they are inconsistent about the number of swings. PC James testified that the accused took a bladed stance almost immediately upon entering the search room before his jacket was off. The audio establishes that the cuffs and jacket were removed much later. PC James is wrong.

[114] Inconsistent Accounts of Swings

PC Miller initially testified that Mr. Young only swung at PC Moorcroft and missed. PC James testified that the accused swung at both PCs Miller and Moorcroft and missed. PC Piccolo testified that there was one swing at PC Moorcroft that missed, and then the accused launched a couple more punches that probably missed. PC Moorcroft testified that the accused threw one punch at him, which missed, and then threw a number of wild punches that did not hit any of the officers. The only consistency in their evidence about this is that none of Mr. Young's swings landed. In addition, PC Miller should know if he was swung at by Mr. Young, as PC James described. I find PC James was mistaken. I also find that the differences between these officers evidence about the number of punches thrown by the accused makes their evidence not credible and unreliable.

[115] Implausibility of Multiple Swings

Given that there were four officers who all expected trouble, in this small space, it is hard to understand how all of these officers gave Mr. Young the opportunity to take multiple swings. Surely, they would have pounced at the first swing making multiple punches impossible. Significantly, no officer other than PC Moorcroft has testified that the accused tried to swing at him. In addition, how quickly PC Moorcroft pounced on Mr. Young later in the cell, when he merely thought the accused might spit, stands in stark contrast to these officers' lack of response to Curtis Young's "fighting stance" and first swing in the search room.

[116] PC Miller's Inconsistent Evidence

When PC Miller was asked if the accused tried to hit anyone else or take any other swings besides the one he initially testified to, he answered under oath, "No, I rushed in at that point." That answer makes sense. However, when that question was immediately repeated, PC Miller then said, "He swung at everybody, yeah. He was – I don't know if it was anybody in specific, but he was just in a fighting mode at that point." This is inconsistent with both of his prior answers. PC Miller was then asked how many swings the accused made and he initially responded that he could not say. Yet, when asked again for an estimate, he answered maybe less than 6, 7 at the most. How could Mr. Young swing 6 or 7 times with 4 officers expecting trouble nearby? This is unbelievable. Finally, later in cross, PC Miller returned to his initial position, "… he swung at one of the officers and then was taken to the ground." I find PC Miller's evidence on these issues unreliable and not credible. I find that the evidence of all the officers about multiple punches establishes that they all deliberately exaggerated the accused's aggression in the search room. It is to be remember that PC Miller had earlier exaggerated and lied about the accused's aggression to the Staff Sergeant at the parade in the presence of all these officers. I find that all these officers colluded about the accused taking a fighting stance and swinging.

[117] Timing Inconsistencies with Alarm

Some aspects of PCs Piccolo and Moorcroft's evidence are also contradicted by the video. Both officers testified that as soon as the accused swung at PC Moorcroft, he stepped back or fell back into the alarm and it sounded. PC Piccolo testified that this swing occurred between the "whoa" remarks at 38:19 and the "Don't get stupid." remarks at 38:22. PC Moorcroft puts this swing seconds later at 38:26, before Mr. Young says at 38:26, "Don't touch me." As defence counsel pointed out, this means that there is a gap of 7-12 seconds between the swing and the alarm at 38:33. This is not a long period of time, but it contradicts their evidence that PC Moorcroft immediately fell onto the alarm. In addition, PC Moorcroft agreed that there are sounds of a struggle on the audio recording before the alarm is heard, which again is inconsistent with their evidence.

[118] PC Moorcroft's Injury Claims

PC Moorcroft testified initially that his head hit the wall when he moved to avoid the accused's punch. Yet, when asked if he had any injury as a result of hitting the wall, he first testified under oath, "No." and he then changed that to, "… tender, if anything, just soreness to my head." Then, he added just a "bump". These answers are inconsistent and vague. In addition, he agreed in cross that when he filed his injury report, he made no mention of a head injury. He also agreed he made no note that his head hit the wall or was injured that night, and only added these details in his complaint response. In chief, when asked about any injury from the search room, PC Moorcroft only referred to his head and not his back. In cross, he added that his back was also injured. PC Moorcroft's evidence about his injuries and his head being banged is unreliable and not credible. I find he deliberately exaggerated Mr. Young's aggression in the search room.

[119] PC Miller's Notes on Strikes

PC Miller put in his search notes that the accused suffered more bruising to his face as a result of the search struggle, "strikes to the face", and being grounded. When asked about these "strikes to the face" in cross, PC Miller denied that he saw strikes to Mr. Young's face in the search room despite his note to the contrary. He tried to explain, in my view unsuccessfully, that he just assumed there were strikes to his face. Shortly after that, he said this note was made from his own recollection, and then immediately contradicted that and repeated that he just assumed that. PC Miller's answers are vague and variable about an important area of evidence, particularly given the concentration of injuries to the accused's face after all these events, as shown on the colour booking photo, Exhibit 21. I find that, although all the officers denied hitting Mr. Young in his face in the search room, PC Miller's notes contradict their evidence.

Search Conclusion

[120] Findings on Search

For these reasons, I find that the evidence of the officers is not credible or reliable. I find that they have lied, exaggerated and colluded about Mr. Young's assaultive behaviour in the search room. At the same time, for all the reasons described, Curtis Young is also not a credible or a reliable witness. The inferences that can be drawn from the audio record and his injuries are unclear and do not corroborate his evidence. I therefore find:

1. the Crown has not met its onus of proof beyond reasonable doubt with respect to the charge of assault in relation to PC Moorcroft in the search room;

2. the Crown has not met its onus of proof beyond reasonable doubt with respect to the charges of assault in relation to PC Piccolo in the search room; and

3. the defence cannot has not met onus on a balance of probabilities with respect to a breach of Mr. Young's Charter rights in the search room.

E. CELL – ASSESSMENT OF EVIDENCE

[121] Overview of Cell Evidence

Based on all the evidence, I find that the evidence of PCs Moorcroft, Piccolo, James and Miller is not credible or reliable about what happened in the cell. There are internal inconsistencies in their evidence, inconsistencies between their testimony, and their evidence is contradicted by the video. On the basis of the video, I find that all four of these officers have colluded and lied about their simultaneous, momentary, independent, identical conclusion that Curtis Young was going to spit at PC Miller. I also find that the video corroborates the accused's evidence. I further find that PC Moorcroft applied excessive force to Curtis Young and thereby caused a melee in the cell that caused further injuries to the accused. The primary reasons for these conclusions are as follows.

Context

[122] Vulnerable Position of Accused

Contextually, it is important to first note that there were four officers in this small cell with Mr. Young for just over three minutes. He was in shackles and both of his arms were being held by two officers, PCs Moorcroft and Miller. His pants were undone and falling down. Curtis Young was injured and vulnerable. Given the melee moments ago in the search room, the accused's and the officers' adrenalin was no doubt still high. As PC Piccolo testified, incidents like that in the search room are uncommon.

[123] Limited Options for Accused

Given this context, PC Miller testified, there was nothing this accused could have done in that cell but spit, if he wanted to be aggressive. The corollary of this statement, of course, is that if the police were to apply force to this accused in that cell, the only lawful explanation they could give for such an action would be that the accused was going to spit at them.

Head Direction

[124] PC Miller's Evidence on Head Direction

PC Miller testified that the accused was "continuing to look directly" at him in the cell, as he had done at the booking, right up to the time of PC Moorcroft's application of force. PC James also testified that the accused "looked at PC Miller" as he was preparing to spit. In my view, their evidence is contradicted by the cell video.

[125] Video Evidence on Head Position

The video shows that the accused is looking towards PC Miller for eight seconds, from 39:42-49. However, for the next seven seconds, right up until PC Moorcroft's application of force, Mr. Young's head is not looking at PC Miller. At 39:50, Mr. Young is facing down towards the ground in front of him. At 39:51, his head moves up somewhat and turns more to his left, but is still directed down towards his left hand and not upwards towards the face of PC Miller. The accused continues to look down and to the left right up to frame 39:57 when PC Moorcroft has taken control Mr. Young's head. It is only at this point that CY's head is upward in a manner that could be described as looking at PC Miller. The conclusion from the video is that Mr. Young was not looking at PC Miller before PC Moorcroft's application of force. PC Moorcroft agreed that his notes at the time recorded only that the accused, "Turned in the direction of PC Miller." Even allowing for different angles and perspectives, in my view, the accused's head would have had to have moved upwards before frame 39:57 in order to support police evidence that Curtis Young was "looking at", or "continuing to look directly at" PC Miller. I find that the video, seriously undermines the basis for the conclusion of all the officers that Curtis Young was going to spit at PC Miller.

[126] PC Miller's Shifting Explanations

PC Miller's evidence raises a number of other issues. He testified in chief that "it seemed" to him that the accused was going to spit at him. This conclusion was not supported by anything that he could say the accused actually did or said, other than his head direction. PC Miller's later evidence in chief further undermines his spitting conclusion when he said, "So, if he's looking at you like this, there's always a chance, especially since he had just tried to fight with several of us. So he (Moorcroft) put his head down so he (Young) could not spit on anybody, specifically me for sure." Firstly, this quote changes his initial evidence that it "seemed" to him at the time that the accused was going to spit at him, to a mere "chance" that this could happen because of what had happened previously. There is no evidence the accused ever spat at anyone before.

[127] PC Miller's Speculation About PC Moorcroft

Secondly, in this quote, PC Miller testified that PC Moorcroft lowered the accused's head to prevent the spit. How would PC Miller know what PC Moorcroft saw the accused do, let alone what that officer concluded from what he saw, or why PC Moorcroft forced the accused's head downward? He gave no evidence in chief about anything that was said or done that would have made him think that. More will be said about this below. A few pages later in chief, PC Miller again offered an explanation for PC Moorcroft pushing the accused's head down and stated, "Because he (Moorcroft) observed him (Young) looking, again, directly at me like he had been in the previous instances." Again, how would PC Miller know what PC Moorcroft was thinking or what he had seen then, or before? Thirdly, and lastly, PC Miller is in fact wrong about what PC Moorcroft saw. PC Moorcroft never described the accused looking at PC Miller, rather he only wrote in his notes and testified that Mr. Young "turned in" PC Miller's direction.

[128] PC Miller's Calculated Bias

PC Miller's evidence about what PC Moorcroft thought in the cell is in stark contrast to his testimony about what caused the accused's swollen eye. With respect to Mr. Young's eye injury, PC Miller testified that he was not prepared to say what other officers did or did not do to the accused in the search room. I find the difference in his approach in these two instances is calculated and shows bias. Eventually, later in cross, PC Miller finally stated that he could not speak on behalf of PC Moorcroft. He already had, and on a number of occasions.

[129] PC Miller's Convoluted Reasoning

When asked if he came to the conclusion that Mr. Young was going to spit at him, PC Miller responded with a convoluted reverse negative, "Um, no. I-I-like I said, I- it didn't cross my mind that he would not do so. So, I was appreciative of PC Moorcroft taking that – action for me." This answer translates to he always thought he would. This does not make sense. In addition, in his written complaint response, PC Miller wrote that, "Young looks directly at me and looks about to spit in my direction when PC Moorcroft grabs the top of his head and directs it down in order for Young not to spit at me." This statement contains no reference to PC Moorcroft saying anything and again suggests that PC Miller saw something that led him to conclude that Mr. Young looked like he was going to spit at him, yet he testified he did not. I find PC Miller's evidence about what Curtis Young did and why PC Moorcroft applied force to the accused, is not consistent, or reliable and, taking into account the assessment below about what he said he may have heard, it amounts to pure invention.

Preparatory Spitting Motions

[130] PC Piccolo's Impossible Observation

PC Piccolo's evidence is equally incredible. He testified that he was bent over in front of the accused, focusing on the leg shackle transfer. PC Piccolo described that it is dangerous to transfer shackles and that he was in a very vulnerable position. PC Piccolo was focused on the shackles for this reason. He testified that he saw "out of the corner of his eye" that Curtis Young was going to spit at the arresting officers, but he did not know at which one. The video shows that PC Piccolo is crouched down in front of Curtis Young, facing the back wall away from PCs Miller and James, working on the shackles on the lower part of the accused's legs and the ring on the lower part of the bench. PC Miller is to his right and behind him, and PC James is behind PC Piccolo to his left. I find, based upon the video, that it was impossible for PC Piccolo to have seen "out of the corner of his eye", that the accused who was above him and to his right was intending to spit at either of these officers. His evidence is not credible. How would he even know where PC James was standing at that moment, or even if he was still in the room, given that PC James was behind him near the door?

[131] PC Piccolo's Contradictions

In cross-examination when the video was shown to him, PC Piccolo agreed that just before PC Moorcroft reacted to the anticipated spitting, the accused's head was facing down, and not to the side towards PC Miller, or behind him towards PC James. When confronted with this inconsistency in his evidence, PC Piccolo explained, unconvincingly, that although Mr. Young's head was down, PC Piccolo did not know where his eyes were focused. If he didn't know where his eyes were looking, and the accused's head was down, and this officer was concentrating on the shackles, I find, it was impossible for him to have concluded that Mr. Young was going to spit at one of the two arresting officers behind him. I find that his evidence is contradicted by the video, not reliable, not credible and, based on all the evidence, pure invention.

Preparatory Spitting Motions

[132] Different Descriptions of Spitting Motion

Three officers testified they saw some kind of motion by the accused that led them to believe he was going to spit at PC Miller. Each one described something different. The choppiness of the video and its poor quality does not show the accused's face or head in any detail. It therefore does not help to either confirm or contradict this evidence.

[133] PC James' Testimony

PC James testified that the accused looked at PC Miller and "pursed" or "pushed" his lips as if he was going to spit. Surprisingly, this important detail, which led to another melee, is not in PC James' notes. It is difficult to accept he would remember this small detail without a notation at the time. This is in sharp contrast to his evidence about Mr. Young's injuries after his arrest when PC James did not testify about seeing the accused's obvious eye injury that all the other officers saw, and that the accused continually complained about all night. It is also striking, given everything that had happened that night, that when PC James saw this preparatory spitting action, the video shows he never made any move to do anything about it until five seconds after PC Moorcroft's intervention. In this regard, he testified that his role in the cell was to stand there to be ready just in case Mr. Young became aggressive. His evidence is simply not believable. I find he has made it up.

[134] PC Piccolo's Mouth Movement Description

PC Piccolo also described a movement, but he said that it was the accused's mouth that moved and described it as sucking motion with his mouth closed. PC Piccolo went on to testify, "He just sort of like looked like he was gathering spit in his mouth, I don't know how to describe this, sort of cocking back." When PC Piccolo then demonstrated in court what he had seen, he leaned his head and body backwards. First of all, a body and head movement is not the same as a mouth movement. Secondly, this movement is not captured on the video. Thirdly, PC Piccolo testified that the video shows the accused's head was in a consistent downward position throughout this period. Fourthly, and most importantly, no one else described seeing the accused's head and body move, and they were all standing in a much better position to see that if it had happened than the crouched PC Piccolo. I also find that PC Piccolo was trying to embellish his evidence when he gave that demonstration in court and ended up contradicting himself. PC Piccolo's focus was on the shackles. I find PC Piccolo could not see "out of the corner of his eye" that the accused was gathering spit in his mouth as he testified. His evidence about the movement he saw is inconsistent, not reliable and not credible. I find he has manufactured this evidence about this mouth action.

[135] PC Moorcroft's Testimony

PC Moorcroft's evidence was that he was holding one of the accused's arms and noticed that he was talking to PC Miller with his head facing forward towards PC Piccolo. The accused then turned some way to his left in the direction of PC Miller. PC Moorcroft testified Mr. Young then "horked" saliva into his mouth. In cross-examination, the video was played slowly for PC Moorcroft. On the issue of where the accused was looking, he agreed that at approximately 39:50-56, just before he intervened, that the accused's head was to his left, but never upward towards the head of PC Miller. He also agreed that the position of the accused's head did not change until he intervened at 39:57. To explain the video contradicting his evidence, PC Moorcroft testified that he could not say where Mr. Young was looking because he could not see his eyes. In my view, this totally undermines the basis he gave for concluding that the accused was going to spit at PC Miller. In addition, despite this careful review of the video and what he observed on it, later in his evidence, PC Moorcroft contradicted himself and testified, "I don't know if he's constantly looking at him (PC Miller), but when I grab him he turns his head." The video showed, and he agreed at that time, that the accused was not constantly looking at PC Miller.

[136] PC Moorcroft's Throat Movement Description

After watching the video, PC Moorcroft could not say at what point in the video the "horking" took place. There is no consistent definition of the slang term "to hork", but it is often used when someone makes a noise that can be heard. Obviously, no one testified they heard such a noise. PC Moorcroft was asked to define what he saw and he described it as back and forth movements of Mr. Young's throat muscles. Firstly, this is not consistent with the mouth movement and lip movements described by PCs Piccolo and James respectively. Secondly, these movements must have occurred just before he grabbed Mr. Young's head. However, in the preceding frames on the video, PC Moorcroft can be seen standing above the accused, looking downward. Mr. Young's head was then looking down towards his left hand, his chin was lowered, and his hoodie was covering one side of his neck and part of his face. In my view, based upon frames 39:54-6, PC Moorcroft was not in a position to see the throat of Mr. Young, let alone throat movements. In cross-examination, the throat movements PC Moorcroft described he saw changed to mouth movements. He then stated more generally, based upon his experience with other prisoners, "moving their mouth around and it looks to me like they're working up saliva in their mouth." When asked which Mr. Young did, throat or mouth movements, he then responded both. In my view, his description of what he saw the accused do is inconsistent, not reliable, not credible and invented.

Words Spoken

[137] PC Miller's Changing Testimony About Words

One possible explanation for the similarity in the officers' evidence about what PC Moorcroft saw and thought, is that something might have been said by someone at the time. However, three of the four officers never testified in chief that anything was said by anyone. In cross, defence counsel tried to pin PC Miller down on whether or not PC Moorcroft made any comment. At first, PC Miller answered "No.", but then, shortly after that, he changed his testimony and said that PC Moorcroft said, "Just in case." This evidence is problematic for a number of reasons. Firstly, he gave a clear "no" under oath on a critical area of his evidence. Secondly, immediately after giving this quote, PC Miller qualified his answer and said he was not certain about PC Moorcroft's exact words. Thirdly, PCs James and Piccolo never said PC Moorcroft said anything. I find PC Miller's evidence about PC Moorcroft saying this is simply not credible, despite PC Moorcroft's evidence described below. I find PC Miller's change in his testimony was calculated to serve his interests and the interests of his fellow officers and is pure invention.

[138] PC Moorcroft's Testimony About Words

PC Moorcroft testified after PC Miller and stated in chief, "if I remember correctly," he said "Don't spit!" at the time. None of the other officers testified that this was said. PC Miller's evidence about PC Moorcroft saying "just in case" cannot support PC Moorcroft's evidence because PC Miller's wording suggests PC Moorcroft was uncertain, whereas PC Moorcroft's choice of words suggests he was certain. In chief, PC Moorcroft described that he said "Don't spit." before he grabbed the accused's head. However, in cross, he did not know if it was before or during the grab. When asked if it was possible he grabbed Mr. Young's head without telling him what he was doing, he replied, "it's highly unlikely", which by implication, it means it was possible. When it was suggested his first answer, which contained "if I remember correctly", lacked certainty about whether these words were said, he responded with a firm, "I said don't spit." When asked to confirm this certainty, PC Moorcroft retreated and said he could not be certain. I find his evidence is inconsistent, unreliable, incredible, and invented.

Physical Actions

[139] PC Moorcroft's Grab and Head Movements

PC Moorcroft testified that he grabbed the accused's head and pushed it down. The video indicates, as was described by the accused, two down and up movements by PC Moorcroft, not one. PC Moorcroft described that the accused got his arms free and then "grabbed" him by "both of his forearms" and pulled him back into the corner. No explanation was offered about how Mr. Young simultaneously freed himself from both PCs Miller's and Moorcroft's holds in order to do this. In cross, PC Moorcroft said that the accused continued to hold both of his arms in the corner. However, when it was suggested in cross, using the video, that he still had a hold of one of the accused's wrists when they went into the corner, he agreed it was possible. When counsel tried to clarify how the accused could have gotten a hold of both of his forearms if the officer still had one of Mr. Young's wrists, PC Moorcroft was evasive and did not answer the question. In my view, acknowledging that the video shows he still might have had the accused's wrist contradicts his evidence that the accused grabbed both of his forearms.

Injuries

[140] Concentration of Injuries on Accused's Face

At the end of the night, the accused had many injuries that were concentrated on his face. These injuries are in dramatic contrast to the very minor police injuries and PC Piccolo's evidence that officers are trained to avoid hitting the face of the people they engage with physically.

[141] PC Moorcroft's Injury Claims

As a result of this incident in the cell, PC Moorcroft testified that he was scratched by Curtis Young. He also testified his back and shoulders were stiff. Given the melee that ensued in the cell, and the previous melee in the search room, it is difficult to accept that PC Moorcroft could actually attribute his back and shoulder stiffness to Mr. Young's actions in the cell. In cross, he seemed to change his evidence about his cell back injury and then said his back was injured in the search room. In cross, PC Moorcroft agreed that some of the marks he said came from Mr. Young in the cell could also have been caused by scraping the cell cement, or by the search melee. With everyone piled on top of the accused in the cement cell and in the search room, it is difficult to accept that PC Moorcroft can say that his injuries were specifically attributable to the actions of the accused. He agreed that in his notes he also reported to his superior that he had scrapes to his shins during the cell incident, yet he did not described any problem with his shins in chief, and no photos were taken of any shin injury, despite photos being taken of his arms. These issues about his cell injuries are akin to the problems with his evidence about his head injury from the search room referred to earlier. I find PC Moorcroft's evidence about the nature and cause of all his injuries was inconsistent and unreliable. I also find that he exaggerated the injuries he attributed to Curtis Young.

Collusion and Motive

[142] Collusion to Invent Evidence

I find that the evidence of all the officers about how they came to their conclusion that Mr. Young was preparing to spit at PC Miller in the cell, is not only unreliable and incredible, but based upon all of the evidence, I find that their evidence contains calculated lies. I find that these four officers have colluded together to invent this evidence in order to address the excessive force PC Moorcroft used on Mr. Young in the cell and his resulting injuries.

[143] Motive for Excessive Force

Based upon all the evidence, I also find that there is a reasonable and credible explanation for why this excessive force was applied. PC Moorcroft testified that shortly after the accused was seated, Mr. Young was talking to PC Miller. PC Miller agreed in court that he wrote in his complaint response, "Once in the cell, Young continues to be verbally aggressive towards us." I find on the basis of this, and all the evidence, that Mr. Young continued to be verbally difficult in the cell. I find that PC Moorcroft inappropriately reacted physically to this behaviour, followed by the other officers, who then all assaulted and further injured Curtis Young.

Cell Conclusion

[144] Video System Limitations

The cell video does not include sound. While there is an obvious explanation for the search room not having a visual image, there is no reason for sound not being recorded in the cell, or for that matter, for a non-continuous video to be used in the cell. A better video system would have quickly helped to clarify what happened and what was said in the cell that night. It also would better serve and protect the interests of prisoners and officers.

[145] Findings on Cell

Based upon all the evidence, I find that:

• the defence has established on a balance of probabilities that the four officers applied excessive force to Curtis Young in the holding cell.

CONCLUSIONS

The Offences

[146] Guilty Findings

Based upon all the evidence and for the reasons herein, I have found that the Crown has established beyond a reasonable doubt that Curtis Young:

• intentionally identified himself as Richard Young and thereby obstructed PC Miller in the lawful execution of his duty;

• intentionally identified himself as his brother, Richard Young, and thereby impersonated him to gain advantage for himself; and

• was in possession of marijuana.

[147] Not Guilty Findings

I have also found that the Crown has not met its onus of proof beyond a reasonable doubt with respect to proving that Curtis Young:

• threatened PC Miller at the booking parade;

• assaulted PC Moorcroft in the search room;

• assaulted PC Piccolo in the search room; and

• assaulted PC Moorcroft in the cell.

CHARTER APPLICATION

[148] Charter Violations Found

The defence onus is to establish on a balance of probabilities that the accused's right to security of his person under s. 7, and his right to be free from cruel and unusual punishment or treatment under s. 12, were violated. For the reasons given, and based upon all the evidence, I have found that the defence has met this onus with respect to:

• PC Miller's application of force at the booking parade; and

• PCs Moorcroft, Miller, Piccolo and James' use of force in the cell.

[149] Remedy Stage

Having found a breach of Mr. Young's Charter rights under s. 7 and s. 12, the court will now proceed to the remedy stage of this Charter application. On February 21st, 2014, the Supreme Court of Canada released R. v. Babos, 2014 SCC 16, which deals with the remedy of a stay of proceedings under s. 24 of the Charter. As a result, on February 25th, the Crown sought an adjournment to make further submissions on the basis of this new case in the event this court found a Charter violation. Having now made that finding, the Crown will be given that opportunity.

Released: March 17, 2014

Signed: "Justice Hackett"