Court File and Parties

Court File No.: Halton 12-1431 and 12-76 (P.O.A.) Date: 2014-09-29 Ontario Court of Justice

Between: Her Majesty the Queen — and — Claudia Beas

Before: Justice L.M. Baldwin

Heard on: April 3, 2013, September 4, 2013, December 5, 2013, and February 6, 2014

Reasons for Judgment released on: September 29, 2014

Counsel:

• Emily Roda and Lorna Muller, for the Crown
• Jason Bogle, for the defendant Claudia Beas

BALDWIN J.:

Charges

[1] Claudia Beas pled not guilty to two counts as follows:

(1) That on or about the 29th day of April, 2012, at the Town of Oakville, she did willfully obstruct Matthew Kohler, a peace officer, to wit: a police sergeant for the Region of Halton engaged in the execution of his duty by interfering with the lawful arrest of Delfina Cordova, contrary to Section 129(a) of the Criminal Code;

(2) That on or about the 29th day of April, 2012, at the Town of Oakville, she did assault Matthew Kohler, a peace officer for the Regional Municipality of Halton engaged in the execution of his duty, contrary to Section 270(1)(a) of the Criminal Code.

[2] The Crown proceeded summarily.

[3] Claudia Beas alleges that her s. 7 and s. 12 Charter rights were violated and requests a stay of proceedings pursuant to s. 24(1).

[4] The Charter Applications and the trial proceeded in a blended fashion.

Background

[5] Date, jurisdiction and identification were admitted.

[6] On the night in question, Ms. Beas, Ms. Cordova, Mr. Ponciano, Mr. Sousa and others were celebrating Ms. Cordova's birthday inside the Rehab nightclub.

[7] The events in question occurred outside the Rehab nightclub located in the AMC Theater Complex at 2081 Winston Park Drive in the Town of Oakville.

[8] On Sunday April 29th, 2012, police were dispatched to the Rehab nightclub at approximately 1:33 a.m. due to a fight/'bottling' incident that had occurred inside the nightclub. Security had two people detained in the parking lot/courtyard area.

[9] Sergeant Matthew Kohler, Officer Kyle Gibson, and Officer Tidball, all officers with the Halton Regional Police Service, arrived separately on scene between 1:37 a.m. and 1:41 a.m.

[10] There were approximately 100 people in the parking lot of this large entertainment complex at the time. Outside of the Rehab nightclub, a large crowd had gathered. There seemed to be 15 to 20 people involved in yelling about the bottling incident.

[11] Within minutes, the victim and the accused in the bottling incident (Jason Sousa) were being dealt with by Officer Tidball. (Jason Sousa was subsequently found guilty after a trial and received a conditional discharge and 15 months of probation in this matter.)

[12] Sergeant Kohler and Officer Gibson dealt with Keith Ponciano, Delfina Cordova, and Claudia Beas.

[13] Keith Ponciano and Delfina Cordova were given tickets under the Trespass to Property Act for failing to leave the parking lot upon police direction.

[14] While the police were dealing with Mr. Ponciano and Ms. Cordova, Ms. Beas was pushed away by Sergeant Kohler. She fell backwards. Her trial evidence is that she hit her head against a concrete tree planter when she fell. She was rendered unconscious.

[15] It is alleged that she rose up, approached Sergeant Kohler again and punched him in the face. This is denied by Claudia Beas.

[16] Ms. Beas was taken to the ground, handcuffed and carried to Officer Gibson's cruiser. She was placed in the cruiser at 2:03 a.m. Ms. Beas was charged with obstructing and assaulting Sergeant Kohler. She was also charged under the Liquor Licence Act for public intoxication and under the Trespass to Property Act for failing to leave the parking lot upon police direction.

[17] Ms. Beas alleges that she was first pushed to the ground and then forced to the ground by Sergeant Kohler. Her trial evidence is that she was beaten by officers when she was face first on the ground. She alleges that these officers physically injured her for no reason. She denies interfering in the police investigation that night. She denies assaulting Sergeant Kohler in any way.

[18] The Charter Applications are based on allegations of excessive use of police force. The remedy sought is a stay of proceedings.

Summary of the Testimony of Matthew Kohler

[19] At the time of trial, Officer Kohler had been an officer with HRPS for over 16 years. He worked in the Tactical Response Unit for 7 years from 2002 until 2009. He holds the rank of patrol sergeant.

[20] On April 29, 2012 he was dispatched to the AMC Theater Complex at 1:33 a.m.

[21] This is a large complex that contains nightclubs, restaurants, theatres and other venues that frequently draw police attendance on the weekends due to public order issues.

[22] This call related to a fight that had occurred inside the Rehab nightclub.

[23] He arrived on scene at 1:37 a.m. and found a large crowd, in excess of 100 people, in the courtyard area where the front door of the nightclub is located. He believed that the crowd was intoxicated by alcohol.

[24] Officers Tidball and Gibson arrived on scene in their separate cruisers at approximately the same time.

[25] The suspect in the bottling incident (James Sousa) was identified to Officer Tidball and Sergeant Kohler was getting background information. Officer Tidball was the officer in charge of the bottling investigation. Mr. Sousa was arrested and an ambulance was called.

[26] The victim of the bottling had a large cut on his forehead. The victim's friend had glass sprayed into his face when the bottle was broken over the other man's head.

[27] While Officer Tidball was dealing with the bottling investigation, a man named Keith Ponciano approached and began to interfere. Ponciano kept stepping into Officer Tidball's personal space and he was shouting and arguing.

[28] Constable Tidball kept telling Ponciano to step away and leave the area. Ponciano did not – he kept yelling and creating a scene.

[29] A small group in the courtyard – 15 to 20 people - began gathering around them.

[30] Ponciano was within a couple of metres from the officers. The others were anywhere from 5 to 10 metres away. It was a mixed crowd of men and women. Ponciano was not doing as he was told by Officer Tidball. This went on for a few minutes – anywhere from 5 to 10 minutes. The crowd was watching.

[31] Officer Gibson approached Ponciano and attempted to arrest him for failing to leave when directed under the Trespass to Property Act. Officer Gibson took hold of Ponciano's arm and Sergeant Kohler became concerned because of the crowd that had gathered around.

[32] "In my experience crowds can be dangerous at times, especially when fueled by alcohol or anger, and a uniformed police officer can sometimes be a visible target for peoples' aggression." (p. 17)

[33] Then a female (Delfina Cordova) moved in and grabbed at Officer Gibson's arms in an attempt to have him let Ponciano go. She was shouting and appeared to be arguing with Officer Gibson. This went on for a minute or two. It appeared that she had been drinking.

[34] "I was worried that the crowd was gathering in and now I could actually see somebody else interfering with the arrest that Constable Gibson was trying to make." (p. 20)

[35] Sergeant Kohler took hold of Ms. Cordova's arm with his hand and told her to stop interfering and to move away. He told her that if she did not leave she would be arrested. Cordova did not leave and she was (later) arrested pursuant to the Trespass to Property Act.

[36] Ms. Cordova began screaming and started to pull away and resisted Sergeant's Kohler's efforts to guide her away from the scene.

[37] Sergeant Kohler was trying to get her away and move her over to where the police cruisers were parked.

[38] Then others in the crowd began to encircle him and Officer Gibson.

[39] Ms. Beas came out of the crowd.

[40] Sergeant Kohler directed all the people in the crowd to step back because he was concerned that they were closing in. Ms. Beas seemed particularly aggressive and she began to grab at his hands and arms trying to pull them off of Ms. Cordova. Ms. Beas appeared to be intoxicated. Ms. Beas kept grabbing at his arms. She again was told to let go and to step back. Sergeant Kohler told her that if she did not stop she was going to be arrested.

[41] "Ms. Beas continued her actions. She was shouting and swearing at me and telling me to let her friend go." (p. 23)

[42] Sergeant Kohler was concerned that the situation was going to escalate further.

[43] "So then in an effort to create some distance, I gave her a shove with a straight arm to break her contact with me and step her back." (p. 24)

[44] Sergeant Kohler believed he made contact with Ms. Beas' shoulder area. He used enough force to push her back. Distance was created and she moved back. He returned his attention to Ms. Cordova. He did not know where Ms. Beas ended up. It is possible that she fell to the ground.

[45] Sergeant Kohler explained why he pushed Ms. Beas back as follows:

"…because I was concerned for my safety, for Constable Gibson's safety, and for the crowd closing in. We had already responded to a violent assault, which brought us there initially. There was a crowd forming. There (were) a number of people that weren't following direction or cooperating with us to the point where Constable Gibson had tried to arrest Mr. Ponciano. His arrest was interfered with by Ms. Cordova. Now I was attempting to arrest Ms. Cordova and now Ms. Beas was attempting to interfere with my arrest of Ms. Cordova." (p. 25)

[46] Ms. Cordova continued to shout and tried to pull away. Officer Kohler was trying to get her away from Constable Gibson.

[47] "And at that point, out of the corner of my eye, I see Ms. Beas taking a couple of quick steps towards me through the crowd…Then Ms. Beas swung and hit me with a closed fist in my left cheek area." (p. 26)

[48] This caused him to let go of Ms. Cordova. He turned his attention to Ms. Beas and arrested her for assaulting him.

[49] Ms. Beas continued to flail her arms at him and tried to assault him further, "so I grabbed her by the head and neck area and directed her to the ground so I could effect the arrest…I'm telling her to get on the ground and that she's under arrest." (p. 27)

[50] Ms. Beas continued to be combative and was swinging her arms.

[51] Officer Gibson stopped dealing with Mr. Ponciano and came over to assist him at that point.

[52] Sergeant Kohler stated that he would probably have had to use a higher level of force had he not grounded Ms. Beas. "She had already assaulted me, punching me in the face with a closed fist. Had I stood up in a crowd and tried to wrestle with her, I think things would have gone poorly and I most likely would have had to have used a higher level of force…it would have probably been having to use an intermediate weapon such as a baton, or OC spray, or conductive energy weapon." (p. 29)

[53] As he was going to the ground with Ms. Beas, she continued to swing her arms around and flail. This continued after she was on the ground. She was also kicking.

[54] Her actions caused the right epaulet to be ripped off of his shoulder. The name tag on his patrol coat was broken as well.

[55] With Officer Gibson's help, he was able to handcuff Ms. Beas. The crowd continued closing in. They were yelling and swearing at us.

[56] Sergeant Kohler directed all the people to step back and then other officers arrived on scene.

[57] Sergeant Kohler and Officer Gibson had to pick Ms. Beas up and hold her by both arms to get her to the cruiser. She continued to struggle and fight.

[58] Ms. Beas was put into the back of Officer Gibson's cruiser and left in his custody.

[59] Sergeant Kohler left to locate Ms. Cordova in the crowd. She was sitting on a curb with her friends. She was crying at this time.

[60] He directed her back to the police vehicles where she was issued a Provincial Offences Notice for failing to leave when directed under the Trespass to Property Act.

[61] Sergeant Kohler explained that he did not charge Ms. Cordova with any criminal offence because her actions were not as significant as Ms. Beas'. Ms. Beas was cautioned several times to leave, she chose not to, and then punched him in the face with a closed fist.

[62] Sergeant Kohler testified that he is five feet eight inches in height. He weighs approximately 185 pounds.

[63] He estimated Ms. Beas to be slightly shorter and weighing less than he did. He estimated her to be five foot seven inches in height, perhaps 150 pounds.

[64] Sergeant Kohler believed that Ms. Beas was intoxicated because she had the odour of alcohol on her breath, her speech appeared slurred, she had red glassy eyes and she was swearing.

[65] Sergeant Kohler did not observe any injuries on Ms. Beas when he dealt with her. She did not complain of injuries to him.

[66] In cross-examination, Sergeant Kohler testified that when he started to engage with Ms. Cordova, the crowd around him and Constable Gibson started to move in closer. The crowd was not happy with what was going on and he started to perceive the beginning of a dangerous situation unfold in front of him.

[67] He had been unaware of Ms. Beas' presence in the crowd until she put her hands on his hands and arms trying to break his hold on Ms. Cordova.

[68] Sergeant Kohler adamantly denied attempting to take Ms. Cordova to the ground in an attempt to arrest her. He took her by the arm and gave her a verbal direction to leave. No other officer took Ms. Cordova to the ground.

[69] After he shoved Ms. Beas away, she came back quickly.

[70] He was standing upright when Ms. Beas punched him on the left side of his face. He was facing her when he took her to the ground.

[71] He cannot agree that Ms. Beas is five foot three inches in height. He would need to get her measured. (p. 63)

[72] When Ms. Beas was struggling on the ground she was speaking with slurred speech and screaming that she was not a drug addict. (p. 72, 78)

[73] Sergeant Kohler could not say which part of Ms. Beas' body hit the ground first. It happened quickly. It is possible that she went head first to the ground. (p. 76) "I grabbed Ms. Beas around the neck and the back of the head area, and pulled her towards the ground. I don't recall specifically what part of her body, if it was her face or her chest or her shoulder actually contacted the ground first, but after being directed to the ground she was lying stomach side down…The idea for that is so we can facilitate getting someone's hands behind their back to properly apply handcuffs." (p. 79, 80)

[74] Sergeant Kohler denied the suggestion that he was behind Ms. Beas when he took her to the ground.

Testimony of Officer Kyle Gibson

[75] Officer Gibson has been with HRPS since August of 2010.

[76] He arrived on scene at 1:41 a.m. Officer Tidball and Sergeant Kohler were already on scene.

[77] There were about 100 people in the courtyard area milling about.

[78] There was a group of approximately 20 females and males in two separate groups that appeared to be arguing with each other. They all appeared to be intoxicated.

[79] Two to three security guards were on scene. The security guards and Officer Tidball were telling a man (Ponciano) to leave. He was refusing to leave. "He wasn't being argumentative. It's just that every time we'd ask him to leave he'd take two steps away and then turn right around and come right back into the fray with these 20 people that were all arguing in this area." (p. 90)

[80] Officer Gibson testified that he told everyone to leave the area, probably three or four times. He told everyone if they did not leave they would be arrested. The group was not leaving. They stayed and were yelling at each other.

[81] It appeared that Ponciano was verbally instigating a fight, so Officer Gibson decided to arrest him under the Trespass to Property Act.

[82] He told Mr. Ponciano he was being arrested and grabbed him by the shoulder.

[83] A female (Cordova) attempted to get between him and Mr. Ponciano. She tried to push his arm away so that he would let go of Ponciano.

[84] Officer Gibson told Cordova to get back. She did not get back.

[85] At that point Sergeant Kohler came over to assist. He pulled Codova away from him.

[86] Officer Gibson did not see how Ms. Cordova was pulled back. He did not recall her being on the ground.

[87] Sergeant Kohler was attempting to gain control of Ms. Cordova by bringing her arms behind her back.

[88] Officer Gibson did not see what happened next as he was focused on arresting Mr. Ponciano and getting his arms behind his back so he could be handcuffed.

[89] Officer Gibson testified that Ms. Beas tried to get in between Sergeant Kohler and Ms. Cordova. Ms. Beas was trying to pull the Sergeant's arms off of Ms. Cordova. Ms. Beas was yelling and screaming and appeared to be intoxicated.

[90] Ms. Beas was extremely emotional and she appeared unsteady on her feet.

[91] Officer Gibson heard Sergeant Kohler tell Ms. Beas to get back. Ms. Beas continued reaching between Sergeant Kohler and then she attempted to push him back with her hand, trying to separate the two parties. (p. 97) At this point Sergeant Kohler pushed Ms. Beas away.

[92] Officer Gibson did not see how Sergeant Kohler pushed Ms. Beas. He saw Ms. Beas fall backwards to the ground. It appeared that she stumbled backwards and fell on her buttocks. (p. 99)

[93] Sergeant Kohler continued trying to arrest Ms. Cordova.

[94] Ms. Beas got up and walked back. Officer Gibson and Sergeant Kohler were standing shoulder to shoulder at this time.

[95] Ms. Beas cocked her fist back and she struck Sergeant Kohler on the left side of the head, cheek area. "It was a good punch." (p. 100)

[96] At this point Sergeant Kohler brought Ms. Beas to the ground. He put her in a headlock, with his arm around her head and neck and then brought her to the ground. It happened relatively quickly. Officer Gibson testified that a moderate level of force was used. Ms. Beas was face first on the ground. She was thrashing her arms and legs.

[97] Officer Gibson disengaged from Mr. Ponciano and he arrested Ms. Beas by handcuffing her to the rear. He told her that she was under arrest for assault police, obstruct and fail to leave.

[98] Ms. Beas continued to yell and scream. She would not get up and she refused to walk to the cruiser. She let her legs go limp and they had to carry her to the cruiser.

[99] Ms. Beas was put into his cruiser at 2:03 a.m.

[100] Ms. Beas was belligerent and argumentative in the cruiser.

[101] When told what she was under arrest for, she said, "I did not fucking assault anyone. Fuck you."

[102] After being read rights to counsel and asked if she understood, Ms. Beas stated, "No, I do not fucking understand. You fucking cop. You fucking big man, yo."

[103] Officer Gibson asked what she did not understand. Ms. Beas replied, "How do you think I could fucking swing at a cop."

[104] Officer Gibson asked her if she wanted to speak to a lawyer. Ms. Beas replied "Yeah, so I can fucking sue you."

[105] After the caution was read, Ms. Beas was asked if she understood. Her reply was "No, I don't have to fucking listen to you."

[106] Officer Gibson explained that the caution means that she did not have to talk to him, but if she does he could use it in court. Ms. Beas replied "You're fucking pathetic. You guys are idiots. Shut up you piece of shit. I don't want to talk to you. You piece of shit, I'm not talking to you small dick cops."

[107] Officer Gibson noted these responses when he was back at the station. He testified that he had a clear memory of them because Ms. Beas' statements were a little "shocking" to him.

[108] Officer Gibson testified that Ms. Beas had the smell of alcohol on her breath; she had runny, red-rimmed and glossy eyes.

[109] At 2:24 a.m. Officer Gibson starting transporting Ms. Beas to 20 Division. He followed another cruiser who had another party under arrest. All of the other officers were tied up with arresting and transporting other parties under arrest to 20 Division. That was the reason for the delay in leaving the scene.

[110] At the station Ms. Beas continued to be argumentative during the booking process. She refused to answer questions put to her by the Officer in charge of the station.

[111] Ms. Beas did not complain of any injuries to Officer Gibson. He did not observe any injuries to her. Ms. Beas did not ask for any medical attention.

[112] Officer Gibson testified that he was professional in his dealings with all the parties that night. Sergeant Kohler was professional in his dealings with all the parties that night.

Testimony of Claudia Beas

[113] Ms. Beas was 28 years old when she testified at trial. (dob December 15, 1984)

[114] She has worked as a hairdresser for the past 10 years.

[115] Ms. Beas attended the Rehab nightclub that evening to celebrate Delfina Cordova's birthday. They were workmates at the time.

[116] She took a taxi to the Rehab nightclub with Delfina, another friend named Simone and Delfina's boyfriend, Keith Ponciano. They arrived about 11 o'clock. Once inside the club they all got a drink and mingled for about half an hour. Ms. Beas had a Jager Bomb drink (Red Bull with Jagermeister alcohol) and a Smirnoff (vodka) in the bottle.

[117] Ms. Beas testified that she stepped out to the patio to have a cigarette. She was out there for about 20 minutes. When she came back inside the club everybody from the crowd she was with had gone. Only Delfina was there waiting for her.

[118] Delfina told her that they were getting arrested. They were all outside because they got into a bar fight.

[119] Ms. Beas and Delfina went outside to see what was going on.

[120] Once outside, Ms. Beas testified that she kept Delfina in the corner close to the club because she saw cruisers and a commotion and she told Delfina that they should not go there; they should leave.

[121] Delfina was upset because her friends were involved. Ms. Beas told Delfina not to go, but she went anyway with her boyfriend, Keith Ponciano.

[122] "They walked ahead of me and I really didn't want to go. I hesitated for about a minute and then I went over." (p. 5)

[123] She saw a lot of cops and a lot of people standing around. Ms. Beas testified that she was really scared. She kept her head down because she did not want to witness anything that was happening. She was just focused on Delfina. She was in Delfina's face begging her to leave.

[124] "And as I was telling Delfina to let's go…I saw two cops grab her from each arm and throw her down. At that time, I put my hands up because I was really scared and a cop came from behind me and whipped me into a cement planter thing and then I got knocked out at that moment…I fell face first into the cement planter…my head went right into it…I felt the corner of the cement just bashing me in the head." (p. 6)

[125] "I remember waking up and I was being assaulted on the ground by the cops. They had me pinned on the ground and I was screaming…I was telling them not to kill me." (p. 7)

[126] Ms. Beas denied that she was punching or hitting any officers.

[127] Two officers grabbed her by each arm after she was handcuffed on the floor. They basically dragged her to the cruiser. She was not resisting the officers on the way to the cruiser.

[128] Once in the cruiser, she asked why she was being arrested. The officer told her it was because she had assaulted an officer. She said she did not hit any police. She was very mad and told the officer that she was going to sue them and she could not believe that this was happening.

[129] Ms. Beas testified that she was bleeding at the time. She had the gash on her head. Once she got to the station she saw bruises on her body.

[130] Exhibit #1 is a photograph Ms. Beas testified that she took the day after the incident. Ms. Beas testified that the photograph shows a laceration on the right side of her scalp.

[131] Exhibit #2 is a photograph of bruising on her (right) arm.

[132] Exhibit #3 depicts more bruising on her (right) arm.

[133] Exhibit #4 is a photograph of the scar on her head from the night she was thrown into the cement planter.

[134] None of the photograph Exhibits have a date on them. Ms. Beas testified that they were taken on a cell phone that she no longer has. (Note: Photographs of her scalp in Exhibits 1, 2 and 4 appear to be the exact same picture.)

[135] After she hit her head on the cement planter she immediately blacked out.

[136] "I don't recall anything before being on the floor with a bunch of cops on top of me." (p. 12)

[137] Once in the cruiser she was in shock and really upset. She did not ask for any medical assistance. She was just waiting to talk to her lawyer.

[138] She went to the doctor the day after this incident and again the next day.

[139] Exhibit #5 are the handwritten medical notes of Dr. Park who saw Ms. Beas on April 30th, 2012 and again on May 1st, 2012.

[140] Exhibit #8 is the Agreed Statement of Facts setting out a typed copy of Dr. Park's notes and what Dr. Park would have testified to had he been called as a witness. (Note: Exhibit #8 has been attached as Appendix "A" to these reasons)

[141] Dr. Park's notes state that on April 30, 2012 Ms. Beas attended at the walk-in clinic. She said that her "drunk friend" was being "assaulted" allegedly by police. Ms. Beas said she was then thrown on the floor and was kicked in the head by the police early on April 29, 2012. She complained of neck pain with stiffness and body bruising.

[142] A scar (very old injury) was observed in her scalp, as well as a right scalp laceration which was superficial, meaning it was on the surface, not deep, and was not bleeding at the time.

[143] One bruise was noted below her right elbow.

[144] Her neck had decreased motion to the right. The injury was localized to the neck only.

[145] She was prescribed Tylenol 3 and an anti-inflammatory to treat pain.

[146] On May 1, 2012, Ms. Beas returned to the walk-in clinic. She complained of a lot of headache, nausea, vomiting and "no memory of hitting the police". Dr. Park diagnosed a concussion based on the injury he observed to her head and the symptoms Ms. Beas reported that day. He advised Ms. Beas to attend the emergency room should her headaches increase so that she could have an immediate C.T. scan or M.R.I. if necessary.

[147] Dr. Park received a report from Trillium Hospital indicating that Ms. Beas attended the emergency room and had a C.T. scan completed on May 1, 2012. The C.T. scan result was normal, indicating no bleeding in the brain or brain swelling or fractures. This suggests that there was no significant head injury.

[148] Ms. Beas testified that the officer grabbed her from behind and whipped her into this wall (the planter) with tremendous force. (p. 23)

[149] Ms. Beas testified that she suffered for six months following the events in question.

[150] In cross-examination, Ms. Beas testified that she has not seen Ms. Cordova since the incident. She was not asked why.

[151] Ms. Beas denied being intoxicated that evening. She maintained that she only had 2 drinks at the Rehab nightclub.

[152] Ms. Beas stated that she was not present when the bottling incident happened in the club. James Sousa was the one who did the bottling inside the club. She does not know him. He was a friend of Mr. Ponciano. She does not know who the victim was.

[153] Ms. Beas testified that Ms. Cordova was very upset and angry when they were outside of the club. Ms. Cordova's friend (James Sousa) was getting arrested and the other guy that was fighting was not getting arrested.

[154] Ms. Beas testified that Ms. Cordova was not intoxicated at the time.

[155] Ms. Beas followed Ms. Cordova as she approached the police because she was trying to prevent her from getting into trouble. "I was trying to make things not escalate and I just kept telling her to leave." (p. 35)

[156] She did not see what Keith Ponciano was doing. She was completely focused on Ms. Cordova.

[157] Ms. Beas testified that she saw two police officers grab Ms. Cordova by each arm and throw her down to the ground for no reason. She could not say which two officers they were.

[158] After that, a cop came up behind her and whipped her into a cement planter. She lost consciousness. When she came to, she was face down on the ground with two officers on top of her assaulting her. One of the officers was Constable Gibson. She did not see who the other officer was.

[159] When she was face down on the ground she felt a lot of pressure on her back like knees and a lot of pushing and shoving. She felt nudging by their feet and there were hands all around.

[160] "When I woke up, I was already in handcuffs…it felt like I was getting beat." (p. 39) That's when she said, "Please don't kill me".

[161] Ms. Beas testified that as she was being dragged to the cruiser the cops were mocking her saying 'please don't kill me' in a very ignorant way.

Cross-examination on April 1st, 2013 Affidavit Filed in Support of the Charter Applications

[162] In the Affidavit Ms. Beas stated that Ms. Cordova was really drunk. She also told this to Dr. Park the next day.

[163] At trial, Ms. Beas testified that Ms. Cordova was not really drunk. She was tipsy. She was having fun. She was not with her all night and does not know how much Ms. Cordova had to drink. When they were outside, Ms. Cordova was angry so she assumed that she was drunk, but her actions did not show that she was drunk. She told the police that Ms. Cordova was really drunk that night so they would feel sorry for her and let her go.

[164] In the Affidavit at paragraph 14, Ms. Beas states: "I saw two officers grab her (Cordova) and someone grabbed me from behind and threw me towards a wall."

[165] When asked why she did not say that it was a police officer that threw her towards a wall, Ms. Beas stated that when she turned around she saw a police officer charge at her. (p. 47)

[166] Ms. Beas testified that she used the word 'wall' in the Affidavit to reference the 'planter'. She did not think that the detail mattered. She stated that the planter is pretty big and is kind of like a wall.

[167] In the Affidavit at paragraph 16, Ms. Beas states: "After picking myself up off the ground, I was immediately rushed by two officers. I was taken down once again, at which time I lost consciousness."

[168] Ms. Beas testified that her Affidavit has mistakes in it. What really happened is as stated in court today. Once she hit the wall she lost consciousness and does not remember anything until she was on the ground with the police on top of her assaulting her. (p. 51)

[169] Ms. Beas agreed that she saw this mistake before she swore the document to be true. She testified that it was an ignorant and stupid thing to do to swear to a false Affidavit.

[170] In the Affidavit Ms. Beas states that she regained consciousness while she was being transported to the police station. At trial Ms. Beas agreed that her Affidavit was incorrect on this point as well.

[171] Ms. Beas agreed that nowhere in the Affidavit does it say that she was down on the ground with the officers on top of her assaulting her. She does not know why she did not put that in her Affidavit.

[172] Ms. Beas testified that she was crying a lot in the cruiser and she was not listening to Officer Gibson. She did call him a small dick cop and she did use the "F" word a few times. Ms. Beas agreed she said all the things Officer Gibson has testified to. Ms. Beas agreed that she was really angry and was being disrespectful to the police.

[173] Ms. Beas was shown a police photograph taken of her on May 24, 2012 that was marked as Exhibit # 6. Ms. Beas agreed that her injury is not visible in the photograph. She explained that the injury was on the right side of her scalp which is not shown in the picture.

[174] Ms. Beas was asked why she told Dr. Park that the police had kicked her in the head. Ms. Beas' answer was that she felt something hit her head when she was on the floor, but she did not know what it was. Ms. Beas testified that what she said to Dr. Park was incorrect. She agreed that she did not say in either her Affidavit or her trial evidence that she was kicked in the head.

[175] Ms. Beas acknowledged having a criminal record for two counts of Robbery with the convictions registered on February 22, 2005, in Toronto. She received an 18-month conditional sentence and probation for one year.

[176] Ms. Beas testified that she has not filed a complaint against the police in this matter. She tried to a few weeks after she was charged, but someone, whose name she did not record, told her at the police station that she had to wait until the trial was finished.

[177] Ms. Beas agreed that when she was at the police station on the morning of this incident she did not complain of any injuries. She did not ask for any medical attention. Ms. Beas testified that the police were not listening to her – she was in shock – she probably did need medical attention – she just wanted to wait and talk to her lawyer.

Testimony of Delfina Cordova

[178] Ms. Cordova was born April 26, 1983, and works as a hairstylist.

[179] She has known Ms. Beas since hairdressing school about eight years ago and they worked together for two to three months at the time of the incident. She has a close relationship with Ms. Beas.

[180] On April 29, 2012 they were at the Rehab club with friends and family to celebrate her 29th birthday.

[181] She did not drink a lot that night because she had to go back and care for her one-year-old son.

[182] They took a cab to the club, arriving around 11:30 p.m. or 12:00 p.m.

[183] Inside the club she was dancing with her boyfriend (Keith Ponciano) and a guy grabbed her. Her boyfriend did not like that, so he pushed his hand away. His friend tried to attack him and her nephew stopped him by putting his hand out. Then her nephew got punched in the eye. One of her other friends' (Jason Sousa) reaction was to beer bottle the guy and bouncers took them out. And then the cops came and got involved, and her nephew and her friend were handcuffed. (p. 5)

[184] Claudia Beas was not around when this happened. She did not see Claudia until they got outside. When they got outside, the police were everywhere.

[185] When she got outside she wanted to figure out why her nephew was in handcuffs because he did not do anything. Her nephew had a black eye at the time. Her boyfriend was trying to say everything is going to be okay. "And then Claudia was there with me and then she's like, you know, let's just go, don't worry, everything's going to be solved." (p. 7)

[186] Keith was being calm. Then all of a sudden he was being taken down by the cops. Two cops came towards her and were dragging her down and, as she was falling, she saw Claudia fall to the ground. At this point she was scared.

[187] She did not see Claudia hit any of the officers. Claudia was taken down just after she herself was taken down.

[188] Ms. Cordova testified that she felt the pressure getting off of her and she saw all the cops on Claudia.

[189] "One of the cops had her knee on her head. They were just using force on her when I'm positive it shouldn't have been needed. And then this other cop just told me to sit on the curb and that's when I just didn't know what to do and I called 911…I wanted other cops there." (p. 9, 10)

[190] At one point her boyfriend was in handcuffs, but he was released. She was given a ticket and they left the scene and went home.

[191] Ms. Cordova testified that she had one shot of alcohol when she first got to the club. She ordered a Smirnoff Ice, but did not finish it because everything happened in less than an hour of them being in the club. She was not intoxicated. Ms. Beas was not intoxicated.

[192] In cross-examination, Ms. Cordova testified that she was not sure what time they got to the club. "I know we were there after 10, like it was after 11 for sure and before 12." (p. 16)

[193] Ms. Cordova repeated that Claudia was not present when the bottling incident happened inside the club. The next time she saw Claudia, they were both outside of the club. (p. 29) She is certain about that.

[194] Ms. Cordova testified that she was upset to see her nephew (Danny Tapia) in handcuffs. He had not done anything wrong. She went up to her nephew to see if he was okay.

[195] Ms. Cordova agreed that she was angry and aggressive. She testified that she "blacked out" and did not listen to what people were saying around her. The police did not warn her before they put her to the ground. (p. 53) She was not yelling at the police officers before she was taken to the ground. She was just angry, but was not being aggressive.

[196] She did not see Mr. Ponciano do anything wrong. She turned around and saw him on the ground with cops on him. (p. 34)

[197] It was just one officer that grabbed Mr. Ponciano. (p. 37)

[198] She and Mr. Ponciano were walking away from the scene to take a cab home when two cops came and grabbed her. (p. 37) As they were grabbing her to put her down, she saw another cop attending to Claudia and she ended up on the ground.

[199] As she was being taken to the ground she saw an officer pushing Claudia. At this point, officers had Ms. Cordova on the ground and they were fully on her back. "So I don't know what happened after that." (p. 38) "…they put me down, like just face flat." (p. 38) The two cops who were on her got off of her and attended to Claudia.

[200] Ms. Cordova agreed that she can only remember bits and pieces of what happened outside the club that evening. The events happened more than a year ago and everything happened very quickly. When she testified in-Chief she was nervous and "I just blacked out. I just wasn't really thinking hard." (p. 44)

[201] After the officers got off of her she was told to go sit on the curb. She got up and saw three officers on Claudia. She called 911 because of the way Claudia was being treated.

[202] She did not see Claudia flailing her arms and legs as the police were trying to handcuff her.

[203] Claudia was face down. One officer had his knee on the back of her head. The two other officers were on each side of her holding her arms with their knees on her back. (p. 48)

[204] Ms. Cordova did not see any of the officers striking, punching or kicking Ms. Beas. She did not see any officer kick Ms. Beas in the head.

[205] Ms. Cordova agreed that Ms. Beas was being restrained on the ground.

[206] Ms. Cordova repeated that she called 911 to try to get other officers to the scene to help them. She was unable to get her cell phone records to prove that she made the call. She called 911 using her cell phone #647-882-8996. There were maybe eight other officers on scene at the time. (p. 56)

[207] She did not think of using her cell phone to video record or photograph what was happening with Claudia that night because she was in shock and scared.

[208] From where she was sitting on the curb, she was far from everything that was going on. (p. 57, 58) She did not want to move. She did not want to be in danger. She did not see how Ms. Beas got to the cruiser because she was focusing on the 911 call. She did not hear Claudia swearing at the police.

[209] She was the only one that got a ticket for not leaving the property. She was not told to leave the property that night. She paid the ticket anyway because she did not want to miss work and come to court. She did not do anything wrong. (p. 62)

[210] She did not make a complaint about how the police treated her and her friends. "I don't want to deal with cops ever again. Especially after what happened and I experienced." (p. 62)

[211] The next day Claudia came to her place. She saw a big scab on the side of Claudia's head and bruises on her arm.

[212] Ms. Cordova testified that she was also injured. She had scrapes on both of her knees from when she fell to the ground. (p. 64) Ms. Cordova did not take any photographs of these injuries. She did not get any medical treatment. She did not testify about this before because nobody asked her.

[213] Ms. Cordova testified that she is four feet eleven inches in height and weighed less than 97 pounds at the time.

Inquiry Made by Officer Gibson re: Cordova's 911 Call

[214] Exhibit 9(a) is a request made by Officer Gibson to HRPS requesting a 911 call recording from a possible witness, Delfina Cordova, from her cellphone number 647-882-8996 made April 29, 2012 between 01:40 am and 2:24 am in relation to occurrence number 2012-68308 at Winston Park Drive.

[215] Exhibit 9(b) is the response dated January 16, 2014 which states that the only call made during that time frame "is for a guy getting a bottle to the head in front of Rehab at 2081 Winston Churchill. Nothing mentioned about Beas or Cordova."

Analysis

[216] In assessing the credibility and reliability of the evidence heard in this case, the seminal case of R. v. W.D. has been applied.

[217] After carefully considering all of the evidence in this case, I reject the evidence of Claudia Beas and Delfina Cordova.

[218] Ms. Beas' evidence was inconsistent within itself, contrary on crucial issues to her sworn Affidavit and to the initial reports to Dr. Park. Ms. Beas' testimony is also inconsistent with Ms. Cordova's.

[219] Ms. Cordova's testimony is also internally inconsistent and defies logic and common sense. I find that she has been deceitful to the Court especially regarding the alleged 911 call she said she made at the scene. I find as a fact that there was no such call. The police have no record of this call. Despite ample opportunity to produce her cell phone records to prove such a call was made, she did not.

[220] Ms. Beas' allegations of being pushed into a cement planter, losing consciousness, then awakening face first on the ground while being beaten by the police, are not true. I find that she has tendered undated photographs of an old (significant) scar on the right side of her scalp and fictionalized that it was caused by the police in this matter.

Inconsistencies and Errors in the Testimony of Claudia Beas

(1) Error re: Timing

[221] Ms. Beas' trial testimony was that she arrived at the Rehab nightclub at 11:00 p.m. She thought she was only at the club for one to one-and-a-half hours before the events in question occurred. (p. 27)

[222] Ms. Cordova testified that they all arrived at the club at 11:30 p.m. or 12:00.

[223] The officers' evidence is that police began arriving on scene at 1:37 a.m.

[224] Clearly, Ms. Beas is in error with respect to how much time she spent in the Rehab bar before the events in question occurred. Her memories of the events that evening are unreliable.

(2) Inconsistency re: Where She First Saw Delfina After Returning From the Patio

[225] Ms. Beas testified that after returning from the outside patio, she found Delfina in the club waiting for her. Delfina told her that everybody else in their group was outside getting arrested because there had been a bar fight. They picked up items from the coat check and went outside together.

[226] Delfina Cordova testified that she did not see Claudia after the bottling incident until she was outside the club.

[227] Clearly one or both of them is in error as to how the events began to unfold concerning their involvement with the police that night.

(3) Inconsistencies re: How Ms. Cordova was Treated by the Police

[228] Ms. Beas testified that she saw two cops grab each of Delfina's arms and throw her to the ground.

[229] Delfina Cordova testified that she 'blacked out' and did not hear what people were saying to her before she was either in the process of being taken to the ground or was taken to the ground.

[230] Both Sergeant Kohler and Officer Gibson testified that at no time was Delfina Cordova taken to the ground.

[231] I accept the Officers' evidence as accurate, reliable and true. It would not be possible for Ms. Beas to be both pushed and then taken to the ground by Sergeant Kohler if Sergeant Kohler had taken Ms. Cordova to the ground first. He would have been down on the ground with Ms. Cordova and not standing up in a position to be punched in the face by Ms. Beas.

[232] Both Ms. Beas and Ms. Cordova are mistaken and/or fabricating a crucial part of the events in question.

(4) Inconsistencies in How Ms. Beas Interacted Physically with the Officers

[233] Ms. Beas denied any physical interaction initiated by her on any of the officers.

[234] She did testify that just before she was taken to the ground, she put her hands up. (p. 6)

[235] Unfortunately, neither counsel asked her about this significant piece of evidence. This is exactly the point in the melee where both Sergeant Kohler and Officer Gibson testified that Ms. Beas punched Sergeant Kohler in the face.

[236] Ms. Cordova testified that she did not see Ms. Beas striking, hitting or kicking out at any officers. According to her, as referenced above, she was blacked-out and on the ground herself at the time. This testimony is rejected as it defies common sense.

[237] I find as a fact that Claudia Beas interfered in the arrest of Ms. Cordova by pulling on Officer Kohler's hands and arms in an attempt to pull Ms. Cordova free. I find as a fact that Ms. Beas was told a number of times to get back and leave. She did not.

[238] I find as a fact that she was pushed away with one arm by Sergeant Kohler. This push resulted in Ms. Beas stumbling backward and landing on her buttocks as testified to by Officer Gibson. She rose up quickly after that and came into the fray. On her own testimony, she had her hands up. She also gave contrary testimony that she did not recall anything before she was on the ground with a bunch of cops on top of her.

[239] I find as a fact that after Ms. Beas struck Officer Kohler in the face, she was taken firmly to the ground by Sergeant Kohler and Officer Gibson and arrested for assaulting police.

(5) Inconsistencies re: What Happened When Ms. Beas Was Taken to the Ground

[240] Ms. Beas has testified that she was thrown from behind and gashed her head against a cement planter which rendered her unconscious/blacked out. She came to when she was face down on the ground with officers beating her up. She gave no testimony at trial that she was kicked in the head.

[241] In her Affidavit she states that someone grabbed her from behind and threw her against a wall. She picked herself up off the ground and was immediately rushed by two Officers, taken down once again and rendered unconscious. She regained consciousness when she was in the police cruiser being transported to the station.

[242] In her report to Dr. Park she said that she was thrown on the floor by the police and kicked in the head. There is no mention of losing consciousness.

[243] Ms. Cordova's evidence is all over the place on what she did and did not see. At times in her trial evidence she was far away sitting on a curb when the events were happening with Ms. Beas on the ground. She was also preoccupied with her cell phone making a call to 911, according to her.

[244] Accordingly, I find as a fact that the testimony given by Sergeant Kohler and Officer Gibson is accurate reliable and true. Ms. Beas continued to thrash out at police as she was being arrested and grounded for assaulting police in this matter. She was not kicked in the head by any Officer. She was not beaten by any Officer.

(6) Inconsistencies re: Beas' and Cordova's State of Intoxication

[245] Unfortunately, neither counsel asked what, if any, illegal drugs and/or alcohol had been consumed prior to Ms. Beas and Ms. Cordova arriving at the club. Neither counsel followed up Sergeant's Kohler's testimony that during the course of her arrest, Ms. Beas was yelling out "I'm not a drug addict".

[246] The evidence of both Officers is that both Ms. Beas and Ms. Cordova appeared intoxicated.

[247] Both Ms. Beas and Ms. Cordova deny they were intoxicated. Interestingly, both describe themselves as 'blacked-out' during a portion of the incident.

[248] Ms. Beas stated in her Affidavit that Ms. Cordova was really drunk during the incident. Ms. Beas said the same thing the following day to Dr. Park.

[249] In cross-examination, Ms. Beas acknowledged that she did say the shockingly disrespectful things to Officer Gibson that he has testified to. This level of anger and abuse to the police is consistent with being intoxicated.

[250] Accordingly, I find as a fact that Ms. Beas was intoxicated during the events in question.

(7) Inconsistencies and Problems with Ms. Beas' Scalp Injury

[251] The photograph Exhibits entered by Ms. Beas were not dated. The photograph shows a significant scar on the right side of her scalp. Dr. Park noted an old scalp scar and a superficial laceration both on the right side of her scalp the next day. There is no more evidence from Dr. Park on this issue. He was not shown the photograph Exhibits for comment on how they reflect what he saw the next day.

[252] Ms. Cordova was not shown the Exhibits for her comments on how they reflect what injuries Ms. Cordova showed her the next day.

[253] Ms. Beas was not asked any questions by counsel as to how she sustained this significant prior scalp injury. During the course of this trial, the old scar and the superficial laceration became blurred as if they were the same. I make a finding that they are not.

[254] Neither Officer observed Ms. Beas to be bleeding or injured when they dealt with her that evening. She agrees that she did not ask for any medical assistance at the scene or back at the station.

[255] I accept Officer Gibson's evidence that Ms. Beas continued to be belligerent when dealing with the Officer in charge of the station.

[256] Accordingly, I conclude that Ms. Beas did not sustain the injury depicted in the photograph Exhibits she has filed at this trial. It is a photograph of a pre-existing scalp wound which has scarred over.

[257] I find that Ms. Beas could have sustained a concussion during the events in question based on her self-reports to Dr. Park the next day. If she did, she is the author of her own misfortune, as I have found as a fact that she continued to thrash out at police as she was being arrested on the ground.

Untruths in the Evidence of Claudia Beas

• That she was not intoxicated
• That she did not interfere in the arrest of Delfina Cordova
• That she did not assault Sergeant Kohler
• That the police beat her
• That she sustained a serious head injury as a result

Untruths in the Testimony of Delfina Cordova

• That she was not intoxicated
• That she was also thrown to the ground and injured by police
• That she witnessed the police beating Ms. Beas
• That she made a 911 call during the incident

Decision

[258] The Crown has established this case beyond a reasonable doubt.

Claudia Beas is found guilty of willfully obstructing Sergeant Kohler, who was engaged in the lawful exercise of his duty, by interfering with the lawful arrest of Delfina Cordova.

[259] Claudia Beas is found guilty of assaulting Sergeant Kohler by punching him in the face with a closed fist.

[260] The Provincial Offence matters are stayed as the public intoxication and trespass issues form part of the findings made above. (R. v. Keinapple)

[261] The Charter Applications are dismissed. I have rejected Ms. Beas' claim of excessive use of police force.

Released: September 29, 2014

Signed: "Justice L.M. BALDWIN"

Obiter

Following a Judicial Pre-Trial held on October 12th, 2012, this case was estimated to take one day. At that JPT, no Charter Applications were noted. Neither counsel notified the Court that more trial time would be required as a result. This is yet another case where counsel have seriously underestimated the time required to complete a trial in Halton Region. This has become a chronic problem that has led to long split-up trials and delayed reserved judgments.