Court File and Parties

Court File No.: Barrie 13-1805, 13-2180 Date: 2014-05-01 Ontario Court of Justice

Between: Her Majesty the Queen — and — Omar Simpson

Before: Justice C.M. Harpur

Heard on: November 22, 2013, February 28, 2014 & April 7, 2014

Reasons for Judgment released on: May 1, 2014

Counsel:

• S. Tarcza, counsel for the Crown
• L. Moldaver, counsel for the defendant

HARPUR J.:

Overview and Undisputed Facts

[1] Mr. Simpson is charged that, on September 27, 2012 at approximately 8:30 in the morning, at a housing complex at 25 Meadow Lane in Barrie, he possessed cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act ("CDSA"), assaulted Douglas Henderson, a peace officer engaged in the execution of his duty, contrary to s. 270(1)(a) C.C., and disarmed Sergeant Henderson while Sergeant Henderson was engaged in the execution of his duty, contrary to s. 270.1(1) C.C. Mr. Simpson entered pleas of not guilty to these charges on November 22, 2013. Trial proceeded on February 28 and April 7, 2014. Ms. Tarcza for the Crown called Sergeant Henderson as well as Sergeant David Luce and Constable Daryl Van Loosen, two other police officers who attended at the 25 Meadow Lane address. Mr. Moldaver for Mr. Simpson called his client's evidence in defence.

[2] Sergeant Luce was alone on patrol on the morning of September 27, 2012. He drove into a large parking lot behind a townhouse and low-rise residential development at 25 Meadow Lane. His understanding was that the complex had in the past been a place of investigations under the CDSA and the Liquor Licence Act. Of the residences at 25 Meadow Lane, Unit 110 has unique, direct access to the parking lot by way of a path. Sergeant Luce understood the rear of that unit to have been the scene of repeated use of crack cocaine.

[3] He observed a Toyota Corolla car parked with its lights on at the lot end of the path leading to Unit 110. He drove his cruiser up beside the Corolla and approached it. In the Corolla were Ryanne Petrovitch, a female occupying the driver's seat, Ricardo Roffington, a male occupying the initially-fully-reclined front passenger seat and Mr. Simpson lying across the rear seat with a jacket covering the lower half of his body. Sergeant Luce asked the reason for their presence in the parking lot and for identification. He recognized Ms. Petrovitch as a person with whom he had previously dealt in connection with a charge or charges of prostitution. Sergeant Luce also recognized Mr. Simpson whom he understood to have been involved previously with the police in respect of a CDSA charge or charges and one or more firearms charges.

[4] Sergeant Luce asked Mr. Simpson to show his hands. Subsequently he then drew his service revolver and called for back-up.

[5] Sergeant Henderson arrived on scene. He attended at the front passenger door of the Corolla. Physical contact occurred between Mr. Simpson and Sergeant Henderson. Mr. Simpson came from the back seat out of the Corolla through the front passenger door and struggled with Sergeant Henderson. Mr. Roffington exited the front passenger door of the Corolla and began to run toward Unit 110. Sergeant Luce pursued Mr. Roffington, took him under control and placed him under arrest.

[6] P.C. Van Loosen arrived at the scene. Sergeant Henderson and Mr. Simpson were outside the Corolla struggling with each other. P.C. Van Loosen approached Mr. Simpson, struck him repeatedly in the face and, with Sergeant Henderson, forced Mr. Simpson to the ground. Mr. Simpson was tasered while on the ground by Sergeant Henderson and eventually arrested and handcuffed.

[7] Approximately ten feet in front of the Corolla and fifteen to twenty feet from the location of the altercation, Sergeant Henderson found a plastic bag of what appeared to be – and has since been established by the Centre of Forensic Sciences to be – 10.1 grams of crack cocaine. The crack cocaine was made Exhibit 2 at trial.

The Disputed Facts

[8] The police officers, on the one hand, and Mr. Simpson, on the other, gave two widely divergent versions of their altercation.

a. Sergeant Luce

[9] According to Sergeant Luce, Mr. Simpson was fidgeting with and concealing his hands from the moment Sergeant Luce began to observe him in the back seat of the Corolla. Sergeant Luce said that Mr. Simpson refused to obey Sergeant Luce's demand that he show his hands, causing Sergeant Luce to draw his firearm.

[10] Sergeant Luce said he saw a small clear plastic bag on the back seat of the car and that, shortly thereafter, Mr. Simpson opened the left rear door of the Corolla as if to leave it. Sergeant Luce said he moved rapidly to that door to prevent Mr. Simpson's exit, at which point Mr. Simpson leaned away from the officer to his right cupping something in his hand as he did so. Sergeant Luce said he then saw Mr. Simpson shove the thing in his hand in behind Ms. Petrovitch in the driver's seat, provoking her to shout "no". He said Mr. Simpson then tried to shove the same thing onto Mr. Roffington, who also refused to receive it.

[11] Sergeant Luce said he reached into the rear seat of the car to attempt to arrest Mr. Simpson for possession of a controlled drug. He said Mr. Simpson then leapt into the right front passenger seat occupied by Mr. Roffington, shoved Sergeant Henderson - who, by this time was attending Mr. Roffington at the front passenger door - and managed to exit the Corolla. He said Mr. Roffington also exited the Corolla and began to run towards Unit 110.

[12] Sergeant Luce pursued Mr. Roffington and stopped and arrested him. He said he observed little of the altercation between Mr. Simpson and Sergeant Henderson. Sergeant Luce said he had not observed Sergeant Henderson's taser being taken away from him by Mr. Simpson. He said he was aware that P.C. Van Loosen had joined them on scene. He said he saw Mr. Simpson after the altercation and noted that he was bleeding from his mouth and nose.

b. P.C. Van Loosen

[13] Constable Van Loosen said he approached Mr. Simpson and Mr. Henderson as they fought outside the Corolla. He said he observed Mr. Simpson push Sergeant Henderson and then pull at him in the area of Sergeant Henderson's waist. P.C. Van Loosen said that Mr. Simpson's knees were bent and that he was pulling backward at the point where he was pulling at Sergeant Henderson's waist.

[14] P.C. Van Loosen said he struck Mr. Simpson three times in the face and threw him to the ground. He said he demanded that Mr. Simpson stop resisting once he and Mr. Simpson were on the ground but that Mr. Simpson refused to do so, instead attempting to roll out from underneath P.C. Van Loosen. P.C. Van Loosen said that, suddenly, Mr. Simpson stiffened and ceased resisting, at which point he and Sergeant Henderson pulled Mr. Simpson to his feet. He said that, after the three of them were up, he realized that Sergeant Henderson had tasered Mr. Simpson.

[15] P.C. Van Loosen testified that he struck Mr. Simpson because Mr. Simpson was combative and he wanted to ensure that the officers did not lose the fight. He said that he observed Mr. Simpson had a swollen cheek and a cut by his eye following the altercation.

c. Sergeant Henderson

[16] Sergeant Henderson said he heard Sergeant Luce's communications with the Barrie Police Service communications operator. He said that what he heard included the remarks that a person was concealing his hands, that Sergeant Luce had drawn his gun and that Sergeant Luce was demanding that the person show his hands.

[17] Sergeant Henderson said he arrived at the scene and attended at the Corolla. He said he saw a male in the rear seat "bouncing around like a pinball" with a clear, plastic bag in his right hand. Sergeant Henderson said that the male attempted to stuff the plastic bag into the car console, then to put it in the drivers lap, and then to put it on the person of the front passenger. He said the two persons in the front seats resisted Mr. Simpson's efforts.

[18] He said he grabbed Mr. Simpson's arm as Mr. Simpson reached forward toward the front passenger seat. He said Mr. Simpson then propelled himself from the back seat over the male in the front passenger seat, shoving Sergeant Henderson out of the way with his head and shoulders.

[19] Sergeant Henderson said he grabbed Mr. Simpson and attempted to put him to the ground. He said Mr. Simpson seemed frantic and pulled, shoved and flailed at Sergeant Henderson's person. Sergeant Henderson said he managed to get Mr. Simpson to the ground but only momentarily.

[20] He said that, once he and Mr. Simpson were back on their feet, Mr. Simpson grabbed Sergeant Henderson's taser holster at his belt and pulled at it. Sergeant Henderson said that Mr. Simpson succeeded in relieving him of his holster and taser, that the two of them fell again to the ground with Mr. Simpson holding Sergeant Henderson's holster and taser behind his back, that Sergeant Henderson was able to remove the taser from the holster held by Mr. Simpson and that he applied the taser to Mr. Simpson's back twice, causing Mr. Simpson to stop resisting on the second application.

[21] Sergeant Henderson acknowledged having struck Mr. Simpson in the face. He was uncertain of the number of times. Sergeant Henderson described his altercation with Mr. Simpson as "an all-out fight".

[22] Sergeant Henderson said it was he who discovered the bag containing crack cocaine approximately ten feet in front of the Corolla.

d. Mr. Simpson

[23] Mr. Simpson denied having possessed any plastic bag or bags while in the Corolla or after having exited it. He denied having attempted to pass any plastic bag to the other persons in the car.

[24] Mr. Simpson said the car was one which he had rented in order to attend with Mr. Roffington in Barrie to attempt to "re-open" a speeding conviction. He said that he and Mr. Roffington had picked up Ms. Petrovitch, whom he knew, at a gas station after she called them and requested a ride. He said that they attended at the Meadow Lane address because that is where Ms. Petrovitch has family and she had asked to visit them.

[25] He said he has a chronically sore leg from a fall from a building, that he was tired on arriving in Barrie and that, accordingly, he asked Ms. Petrovitch to drive.

[26] Mr. Simpson acknowledged having been told by Sergeant Luce when Sergeant Luce approached the car to stop moving about in the back seat. He said that he continued to attempt to find and put on his shoes and to find his identification. He said that Sergeant Luce demanded that he "freeze" and that, at that point, Sergeant Henderson arrived at the car's passenger door, opened it, and began to punch Mr. Simpson.

[27] Mr. Simpson said that, after punching him, Sergeant Henderson pulled him from the back seat out through the front passenger door, put him to the ground and began to bang his head on the parking lot pavement. Mr. Simpson said he then felt blows being administered to him by another person and then felt the shock of a taser. Mr. Simpson denied that he was attempting to fight or to resist. He denied having attempted to take Sergeant Henderson's taser or taser holster.

[28] Mr. Simpson said he would have weighed approximately 130 pounds in September of 2012 and that he is 5 feet, 7 inches tall.

[29] Made Exhibit 4 at trial was Mr. Simpson's criminal record. It contains fourteen convictions involving breaches of obligations to the administration of justice between 2004 and 2010, as well as various other convictions over this same period.

The Issues and Analysis

a. The CDSA charge

[30] Concerning the cocaine possession charge, Mr. Moldaver submits that, on this record, the Crown has not proven beyond reasonable doubt that the bag of crack cocaine found some fifteen to twenty feet from Mr. Simpson's altercation with officers Henderson and Van Loosen was ever possessed by Mr. Simpson. Mr. Moldaver observes, correctly, that no witness testified to having seen Mr. Simpson throw the bag from his person to the location at which it was found. He notes Sergeant Luce's evidence that the bag which was ultimately seized is not the same as the bag which he saw in the back seat of the Corolla occupied by Mr. Simpson. He notes as well Sergeant Henderson's evidence that he cannot identify the bag of cocaine seized as the same bag which he saw in Mr. Simpson's hand in the car.

[31] Ms. Tarcza, representing the federal Crown on the CDSA charge as well as the provincial Crown on the other two offences, candidly acknowledges in her submissions that the Crown's case for possession in this instance is "not the strongest".

[32] I agree. I am not satisfied beyond reasonable doubt that the bag of crack cocaine was ever in Mr. Simpson's possession. The police testimony was to the effect that this altercation took place in an area known for the commission of CDSA offences and that Unit 110 was an "active" locale for these offences. Exhibit 2 was found on the pathway between Unit 110 and the parking lot, a route apparently used by many persons. The circumstances do not point unequivocally to possession by Mr. Simpson. I find him not guilty of this charge.

b. The charges of assault police and disarm police

[33] With respect to the assault police and disarm police charges, Mr. Moldaver submits that the Crown has failed to prove beyond reasonable doubt either (i) Mr. Simpson's acts of assaulting Sergeant Henderson and taking or attempting to take the taser; or (ii) Sergeant Henderson's having been engaged in the execution of his duty as a peace officer.

[34] The first of these submissions is based on the reasoning in R. v. W.(D.), (1991), 63 C.C.C. (3d) 397 (S.C.C.) and the proposition that the weaknesses in the police officers' evidence, together with Mr. Simpson's denials, should at least leave me with reasonable doubt as to the assault and the attempt to take the taser.

[35] The latter submission, also based on W.(D). reasoning, is to the effect that a doubt should remain as to whether Sergeant Henderson's and P.C. Van Loosen's treatment of Mr. Simpson in effecting his arrest involved an excessive use of force. Mr. Moldaver suggests, and I agree, that it is for the Crown to prove beyond reasonable doubt that Sergeant Henderson was acting within the scope of his police power in order for Mr. Simpson to be found guilty of either of the assault or disarm charges. If Sergeant Henderson were acting beyond the scope his duties, he would necessarily not be engaged in the execution of them, as required by s. 270(1)(a) and s. 270.1(1) C.C.

[36] Clearly, if I accept or I am left in doubt whether the altercation involving Sergeant Luce, Sergeant Henderson, P.C. Van Loosen and Mr. Simpson occurred as described by Mr. Simpson, then Mr. Simpson is entitled to an acquittal since he would not have been proven guilty of either actus reus. Sergeant Henderson's administration of several punches as Mr. Simpson sat compliantly in the rear seat of the cruiser would be egregiously abusive. So too would be the ensuing violence visited upon Mr. Simpson by Sergeant Henderson and P.C. Van Loosen leading to his arrest.

[37] In R. v. Simpson, [1993] O.J. No. 308 (O.C.A.), Doherty, J.A. said that "Attempts to set the ambit of police common law powers fill many pages of the reports and law journals". He concluded as follows:

In deciding whether an interference with an individual's liberty is authorized under the common law, one must first decide whether the police were acting in the course of their duty when they effected that interference. In this case, Constable Wilkin indicated that he was investigating the possible commission of drug-related criminal offences at the suspected "crack house". While a police officer's stated purpose is not determinative when deciding whether the officer was acting in the course of his or her duty, there is no suggestion here the Constable Wilkin was not pursuing an investigation into the possible commission of drug-related crimes when he stopped and detained the appellant. The wide duties placed on police officers in relation to the prevention of crime and the enforcement of criminal laws encompass investigations to determine whether criminal activities are occurring at a particular location as well as efforts to substantiate police intelligence. I am satisfied that Constable Wilkin was engaged in the execution of his duty when he stopped and detained the appellant. The lawfulness of that conduct will depend on whether the stop and detention involved an unjustifiable use of the powers associated with Constable Wilkin's duty.

The reasons of Le Dain J. in Dedman, supra, at pp. 35-36 S.C.R., pp. 121-22 C.C.C., indicate that the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. This "totality of the circumstances" approach is similar to that found in the American jurisprudence referable to the constitutionality of investigative stops: United States v. Cortez, 449 U.S. 411 at pp. 417-18, 101 S.Ct. 690 (1981); Alabama v. White, 110 S. Ct. 2412 (1990) at p. 2416; and in the Canadian case law relating to s. 8 of the Charter; R. v. Garofoli, [1990] 2 S.C.R. 1421 at pp. 1454-55, 60 C.C.C. (3d) 161 at pp. 189-90.

[38] It is on the last of these factors – the nature and extent of the interference – on which the lawfulness of Sergeant Henderson's detention and arrest would founder if Mr. Simpson's narrative prevails or leaves doubt.

[39] However, having applied the reasoning in W.(D)., I reject Mr. Simpson's description of the events leading to his arrest and I am not left in doubt by it. There are several reasons for this conclusion. In relation to Mr. Simpson's evidence, they are the following:

(i) Implausibility of Sergeant Henderson's conduct as described by Mr. Simpson

According to Mr. Simpson's account, he is cooperative and compliant in the rear seat of the Corolla and has provided Sergeant Luce and Sergeant Henderson with no grounds to suspect him of any criminal conduct. On his evidence, Sergeant Luce is present at the left rear door of the Corolla and is looking into it at Mr. Simpson. Sergeant Henderson is at the open front passenger door of the Corolla leaning in over Mr. Roffington toward Mr. Simpson. Sergeant Henderson is, thus, being observed by, or subject to observation by, three people in addition to Mr. Simpson. Yet, on Mr. Simpson's version of events, Sergeant Henderson proceeds, unprovoked, to punch him several times in the head. Quite apart from the physical challenges Sergeant Henderson would face to accomplish this action given his and Mr. Simpson's positions in the car, there is no discernible rationale for the violence and there is compelling reason, in the form of the presence of several witnesses, for Sergeant Henderson not to engage in it. Thus, on the venerable, "harmony with the inherent probabilities of the circumstances" test from Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), cited with approval in R. v. M.G., [1994] O.J. No. 2086 (O.C.A.), Mr. Simpson's narrative lacks plausibility.

(ii) Lack of credibility in Mr. Simpson's explanation for their presence

Mr. Simpson's explanation as to how it is that he, Ms. Petrovitch and Mr. Roffington came to be present in the lot behind 25 Meadow Lane also lacks credibility. According to Mr. Simpson, he had rented a car to drive with Mr. Roffington to Barrie to attempt to deal with a Highway Traffic Act violation. He has received a telephone call from Ms. Petrovitch saying that she is at a gas station and needs a ride. Mr. Roffington and Mr. Simpson pick Ms. Petrovitch up. Mr. Simpson, tired and suffering from the leg injury sustained in the earlier building fall accident, decides to relinquish the wheel to Ms. Petrovitch and to lie down in the back seat of the Corolla. Ms. Petrovitch asks to go and visit family members at 25 Meadow Lane. Mr. Simpson and Mr. Roffington agree. The three drive to the parking lot behind 25 Meadow Lane and park in the spot closest to Unit 110. They are in the lot, according to Mr. Simpson, for twenty to thirty minutes prior to the arrival of the police. Ms. Petrovitch continues to be in the driver's seat of the Corolla when the police arrive.

I certainly cannot say that this sequence of events is inconceivable, but it is so discordant with the way one would expect matters to unfold if, indeed, Mr. Simpson and Mr. Roffington had driven to Barrie on the morning of September 27, 2012 to deal with a Highway Traffic Act infraction, that I cannot give it credence.

(iii) Evasiveness regarding the building fall injury

Mr. Simpson was asked in cross-examination how he had broken his pelvis, the earlier injury described in his examination in chief as leading to his being in the car's back seat. He said that he had broken it "falling off a building". He was then asked how he had fallen off the building. He said that he did not know, apart from the facts that he was at a friend's house and that he did not fall while running away from anyone.

It may be that Mr. Simpson regarded the question as irrelevant or that he simply did not wish to disclose how it is he came to fall, but his reticence discouraged me from regarding him as a candid witness. I fully expect that a man who has fallen from a building and broken his pelvis knows how the injury occurred or has an explanation as to why he does not know.

(iv) Contradiction regarding Ms. Petrovitch's presence

Mr. Simpson contradicted himself concerning Ms. Petrovitch's presence in the Corolla. Initially he said that he, Mr. Roffington and Ms. Petrovitch stayed in the Corolla throughout the period they were in the parking lot. Subsequently he stated that when Sergeant Luce arrived at the car he was "just getting up" and was uncertain whether Ms. Petrovitch had already gone in to visit her family at 25 Meadow Lane.

(v) Criminal record for breaches of obligations

Of limited significance in assessing Mr. Simpson's credibility but still a factor is his criminal record disclosing many convictions for breaches of his obligations to the administration of justice. These raise at least some question about Mr. Simpson's perception of his duty to tell the truth in his testimony in this proceeding.

[40] Turning to the Crown's case, I accept the evidence of Sergeant Henderson as to the nature of the altercation with Mr. Simpson. His evidence that Mr. Simpson was agitated as he sat in the rear of the Corolla was corroborated by Sergeant Luce. So too was Sergeant Henderson's evidence that Mr. Simpson was holding a plastic bag in the back seat of the car and that he attempted to foist something upon, in turn, Ms. Petrovitch and Mr. Roffington while there. So too was Sergeant Henderson's evidence that Mr. Simpson propelled himself forward out of the back seat, through the front passenger seat and into Sergeant Henderson in exiting the Corolla.

[41] As to the altercation between Sergeant Henderson and Mr. Simpson outside the Corolla, while Sergeant Henderson described the violence as involving two takings-to-ground of Mr. Simpson where P.C. Van Loosen described only one, Sergeant Henderson's evidence about Mr. Simpson pulling his holster and taser from his belt was supported by P.C. Van Loosen's evidence of having seen Mr. Simpson pulling at that area of Sergeant Henderson's body. I did not regard the absence of evidence from P.C. Van Loosen about two takings-to-ground as necessarily contradictory in that P.C. Van Loosen only arrived at the site of the altercation when it was in progress. He may simply not have seen the earlier fall.

[42] Mr. Moldaver suggested in cross-examination to Sergeant Henderson that he had fabricated Mr. Simpson's violence to justify his otherwise illegal application of force to a citizen. Sergeant Henderson responded that "if I walked up to a vehicle and randomly attacked and tasered somebody, yes, then I would have an issue, but luckily your client provided the opportunity by attacking me that I didn't have to make up any kind of story". In his submissions, Mr. Moldaver suggested that Sergeant Henderson's use of the phrase "luckily your client provided the opportunity" is indicative of the sort of specious justification which the officer's version of events represents. I am not persuaded that Sergeant Henderson's diction bears this interpretation. His words seemed to me to be simply an effort to describe the converse of the jeopardy he would face if he had attacked Mr. Simpson without any basis for doing so, "lucky" in comparison with that predicament.

[43] Mr. Moldaver submits that the evidence of P.C. Van Loosen about seeing Mr. Simpson grab at Sergeant Henderson's belt is suspect and is appropriately viewed as an after-the-fact, collaborative effort by P.C. Van Loosen and Sergeant Henderson to justify their collective, excessive violence toward Mr. Simpson. While it is true that P.C. Van Loosen did not make note in his police notebook of Mr. Simpson pulling at Sergeant Henderson's waist, and this fact lessens the reliability of this aspect of his testimony, ultimately I agree with Ms. Tarcza's submission that, if the officers were collaborating in a fabrication about the incident, their testimonies would have dove-tailed far better than they did. She notes that P.C. Van Loosen's recollection of the grabbing at the belt fell well short of any attempted taking of the holster and taser by Mr. Simpson, contrary to Sergeant Henderson's evidence.

[44] The officers' evidence seemed to me to be given in an even-handed way. Both P.C. Van Loosen and Sergeant Henderson readily acknowledged in their evidence that they had struck multiple blows to Mr. Simpson's head or face without Mr. Simpson previously having struck any blows. They did not appear to be minimizing their violence. Rather, they said it was essential to gain control of him.

[45] Mr. Moldaver noted that Mr. Simpson described himself as 130 pounds, 5 feet, 7 inches tall and disabled to some extent by the pelvis injury. He noted P.C. Van Loosen's evidence that he was approximately 6 feet tall and weighed 220 pounds. Is it plausible, Mr. Moldaver asks rhetorically, that Mr. Simpson presented enough of a challenge to P.C. Van Loosen and Sergeant Henderson to justify the blows administered and the use of the taser?

[46] The answer seems to me to be yes. I accept Sergeant Luce's and Sergeant Henderson's descriptions of Mr. Simpson's speed, agility and power in managing to exit the Corolla. I also accept that Mr. Simpson proved to be a formidable opponent for Sergeant Henderson once outside the car. Thus, I do not regard as implausible Sergeant Henderson's and P.C. Van Loosen's stated views that Mr. Simpson was a man who could only be subdued through the application of substantial force.

[47] Mr. Moldaver also submitted that this was, at the outset, a case of physical detention or attempted physical detention in the absence of grounds. I cannot agree. I accept Sergeant Luce's evidence that, when Mr. Simpson sprang from the back seat of the car, Sergeant Luce was attempting to advise Mr. Simpson that he was under arrest for a CDSA offence. Sergeant Luce testified, and I accept, that he had seen Mr. Simpson holding and then attempting to get rid of, a clear, plastic "dime bag" of the sort in which illicit drugs are packaged. Sergeant Luce testified, and I accept, that he felt he had reasonable and probable grounds for arrest and was attempting to effect that arrest when Mr. Simpson began to exit the Corolla.

[48] Sergeant Henderson had observed a clear plastic bag in Mr. Simpson's hand in the back seat and efforts by Mr. Simpson to foist something he was holding in his hand onto the other car occupants. He had arrested Mr. Simpson in the past for drug offences. He was aware of 25 Meadow Lane's history involving illicit drugs. He had heard Sergeant Luce's description to dispatch of his observations and actions. He too intended to arrest Mr. Simpson for a CDSA offence and he too had grounds.

[49] In summary, the steps taken by Sergeant Henderson and P.C. Van Loosen, although unfortunately inflicting injuries on Mr. Simpson, were not unreasonable exercises of force in their carrying out their common law duties of arrest. Thus, Sergeant Henderson was acting in the execution of his duties as a police officer. Both the application of force by Mr. Simpson to Sergeant Henderson and Mr. Simpson's momentarily successful effort to relieve Sergeant Henderson of his taser have been established by the Crown. Accordingly, despite Mr. Moldaver's thorough and vigorous testing of the Crown's case, I find Mr. Simpson guilty of these two offences.

Released: May 1, 2014

Signed C.M. Harpur

Justice C.M. Harpur, O.C.J.