JUDGMENT

Ontario Court of Justice

Date: 2014-11-28

Court File No.: N131329

Parties

Between:

Her Majesty the Queen

— AND —

Patrick McGilly

Before: Justice Douglas B. Maund

Heard on: August 14, 15, September 11, 2014

Reasons for Judgment released on: November 28, 2014

Counsel

Mr. A. Cappell — counsel for the Crown

Mr. R. Warren — counsel for the accused Patrick McGilly

J U D G M E N T

Maund, J.:

[1]

The accused before the Court, Patrick McGilly, stands charged that on February 6th, 2013 at the City of Niagara Falls he committed an assault upon Johnathan Hughes thereby causing bodily harm to him, contrary to Section 267(b) of the Criminal Code of Canada. The trial of this matter was heard over three days in August and September last and is before the Court today for Judgment.

ISSUE AND POSITIONS OF THE PARTIES

[2]

Patrick McGilly is a Sergeant with Niagara Regional Police Service and has served on that force for over twenty-five years. On the evening in question Sergeant McGilly was in the course of his duties at the Niagara Falls detachment where he served as an administrative sergeant.

[3]

The complainant Johnathan Hughes is a twenty-four year old man (22 at the time of this incident) and attended the Niagara Falls station to complain about being issued a traffic ticket from another officer earlier that evening. Mr. Hughes sustained injuries at the hand of Sergeant McGilly during the course of his arrest following his behaviour in the lobby of the police station. The Crown submits that, whether or not the arrest was proper or legally necessary, the defendant used more force than he was entitled to use in exercising his authority as a peace officer. The Defence position is that while the use of force by Sergeant McGilly was regrettable inasmuch as injuries were sustained by Mr. Hughes, his use of force was not a criminal act. On the contrary the Defence submits that use of force by Patrick McGilly was consistent with his training and necessary in the context of assisting in a difficult arrest procedure.

THE FACTS

[4]

The complainant, Johnathan Hughes testified. He indicated in his evidence that he was pulled over by a Niagara Regional officer that evening because of a loud exhaust. The officer gave him a Provincial Offences Act ticket because of the failure of Mr. Hughes to produce his insurance card at the stop. There is no question from the evidence that this caused Mr. Hughes to become angry and resentful. It was in this mood that he attended with his insurance card later that night at the Niagara Falls police station to see if something could be done to stop the charge on the POA matter from proceeding.

[5]

Mr. Hughes was with his childhood friend, Elisha Lababie who had been with him at the time of the stop. He spoke with the civilian assistant behind the glass in the public lobby of the detachment. The complainant produced his insurance card and demanded the ticket be withdrawn. The answer that he received from the assistant was that he would have to go to Court to deal with the matter. This was not the answer that Mr. Hughes expected or wanted. When asked to describe his mood Mr. Hughes first acknowledged that he was frustrated but that he remained calm. He acknowledged that he may have raised his voice as that conversation continued. All of the evidence subsequently heard makes it clear that Mr. Hughes minimized his reaction. He became increasingly petulant and angry in his dealings with the officers and the civilian at the police station.

[6]

A nearby officer, Constable John Garner overheard Mr. Hughes' raised voice and attempted to mediate the situation. When he spoke with Constable Garner, Mr. Hughes acknowledged that he may have raised his voice and probably called him an "asshole". He remained dissatisfied with the information he was receiving from P.C. Garner that the POA ticket could not simply be withdrawn as he had hoped. Mr. Hughes testified that when it became clear that he could not obtain what he wanted, he proceeded to the front entrance. He does not believe that he said anything provocative or insulting to the officer at the door. And he said he was surprised when the officer suddenly approached him and grabbed him by his wrist in an attempt to arrest him.

[7]

According to Mr. Hughes, he repeatedly asked the officer why he was under arrest but received no answer at any time. He was aware of a second officer coming into the lobby. That would be Patrick McGilly. At this point Mr. Hughes believed he had a handcuff on one hand and, possibly the second handcuff was also secured. While he says he understood he was being arrested, when asked if he was trying to avoid the handcuffs his first response was "I would say no". However, the complainant acknowledged that he had his shoulder locked to avoid being cuffed. He indicated that he was keeping his hands apart so they could not be pulled together to secure the handcuffs completely. His evidence in relation to the handcuff procedure was often contradictory. Despite acknowledging that he was resisting the handcuffs, when subsequently asked by the Crown whether he was intentionally attempting to lock his shoulder, he said "I believe not." He indicated that he was stressed and tense at the time as a potential explanation for his behaviour.

[8]

Mr. Hughes remembers being thrown onto a chair as the second cuff was being put on. At that point he remembers being hit in the face by Sergeant McGilly's open palm. It was conceded by the Defence that the blow struck by McGilly caused injuries to the complainant. These included a swollen lip and a fracture of his left front tooth as well as his right front tooth. As a result of the injury the four front teeth were wired together and the fractured left tooth required full replacement.

[9]

At the time of the blow to his mouth, Mr. Hughes believed that both of his hands were handcuffed behind his back. Immediately before the blow by Sergeant McGilly, Mr. Hughes felt the first officer also strike him on the back of the head or neck. Mr. Hughes testified that he did not attempt to hit, punch or kick either officer. Nor did he make any aggressive movements in their direction.

[10]

The complainant was subsequently released into his father's custody that morning. He later attended the hospital in Niagara Falls where he received dental care for his mouth and teeth.

[11]

When asked by the Crown whether, in his dealings with the police that night he said anything threatening to them his answer was "I believe not".

[12]

Mr. Hughes was shown the surveillance video of the lobby of the police station in Niagara Falls which recorded this incident. There were two separate cameras with different views, one facing from the front doors towards the rear lobby and another one facing the opposite direction. Neither video has audio. The video views were shown to all of the witness who testified in this trial, often frame by frame which was significantly slower than a real time format.

[13]

During the video Mr. Hughes is seen walking away from P.C. Garner towards the front doors. He testified that he thought he was telling the officer words to the effect that "this is stupid" at that point. Garner is seen to grab the complainant and drag him over to sit him in one of the lobby chairs. I will not describe these videos in detail. These two videos were entered as Exhibit '2' and have been carefully observed by the Court both during and after trial. The videos were commented upon by all of the witnesses including Mr. Hughes.

[14]

The complainant testified while watching the video that he locked his elbow after the first officer is seen placing him in a headlock. He is also seen struggling with Sergeant McGilly. When Mr. Hughes was asked whether he was trying to prevent the handcuffs from being placed on his hands his answer was "a little bit". From both angles on the two video views, Mr. Hughes' hands are seen behind his back when he is struck in quick succession first by Garner and then by McGilly. On either view it is impossible to determine from the video whether the handcuffs were engaged. However Mr. Hughes hands are clearly behind his back when the blows are struck.

[15]

On cross examination Mr. Hughes acknowledged that when he walked toward the front door before the altercation, he made a gesture seen on the video which appears to show his hand demonstrating a slitting motion across his throat. He acknowledged that the gesture was one made in anger and could have been taken as a threatening gesture. He testified that he believed what he was saying when he was walking out is that what he had been told by P.C. Garner about the ticket was "fucking stupid". The witness denied saying words to the effect that there were going to be fires or arsons that night. He believes he may have said something like "justice should burn", but denied saying anything about burning buildings or committing arson.

[16]

Mr. Hughes later acknowledged that on a cell video which contains an audio component he said to P.C. Garner these words later that night:

"I said that other people are going to be arsoning tonight, not me…"

He did not initially acknowledge saying these words and said that he did not believe that he would have intentionally said them. Subsequently the following conversation in the cells between with P.C. Garner and the complainant was put to him.

Garner — "You threatened me, said you were going to start fires."

Mr. Hughes — "I said I was going to help you out with the arsons."

While Mr. Hughes did not deny this conversation he said he had no memory of it. The transcript of the cell video was subsequently entered as Exhibit '3A' and '3B'.

[17]

Notwithstanding this subsequent conversation with Garner, Mr. Hughes maintained on cross-examination that his conversation in the lobby made no reference to arson or anyone setting of fires in the city. When asked to reconcile his subsequent conversations with P.C. Garner with that evidence, the witness said "I haven't got a clue."

[18]

Mr. Hughes reiterated that during the cuffing procedure, while he locked his shoulder, he did not do anything aggressive toward P.C. Garner. While he disagreed that he was attempting to prevent the second handcuff from being engaged, Mr. Hughes did agree that his physical actions would make that difficult. When the witness was asked why he was not being fully cooperative during his arrest, he complained that he had not been told the reasons for the arrest. Mr. Hughes disagreed that he was resisting the application of the cuffs despite his actions. He acknowledged that if he had cooperated more with the officers the incident would probably not have escalated or turned out as it did.

[19]

Mr. Hughes also agreed that during the arrest, P.C. Garner told him to stop resisting. He also remembered Sergeant McGilly telling him to calm down and stop resisting during the altercation. The witness added that while he locked his shoulder and ankle, he did not do so on purpose.

[20]

Mr. Hughes acknowledged telling the SIU interviewer that he had assumed a "bull stance" with the officers. When asked in cross examination what a bull stance was he described it as follows:

"It's where you just put your feet about shoulder width apart, bend your knees a little bit and it is really hard to move you."

Mr. Hughes agreed that adopting this stance would be a form of non-cooperation with the officers who were attempting to arrest him.

[21]

The complainant also acknowledged that in his subsequent conversations in the cells with P.C. Garner, he asked whether an action of trying to pull his hands apart while being handcuffed was resisting arrest. However, in his evidence, Mr. Hughes was adamant that he was not pulling his hands apart but rather had only locked his shoulders. Withstanding all of his answers, both in chief and cross examination, it was the position of Mr. Hughes that he was not resisting his arrest procedure. His position was that he was acting as he did because he had not been told why he was placed under arrest.

[22]

On re-examination the complainant clarified that the bull stance which he had referred was not when he was seated in the chair but rather after both cuffs were placed and he was lifted on to his feet.

[23]

Mr. Hughes' companion that night, Ms. Lababie, also gave evidence. This witness described the complainant's earlier dealings at the police station. She believed that he spoke respectfully both at the counter and to the first officer. It was her impression that her friend was quite calm. However she acknowledged that she was not paying a great deal of attention to the exchange. She remembers Mr. Hughes swearing at the officer when he was leaving the station and calling him an "asshole". She said that the officer then grabbed his right arm and the struggle took place. She remembers the first officer attempting to place the handcuffs on and not responding to Mr. Hughes' questions about why he had been arrested. She remembers specifically that the complainant's hands were behind his back when there was a blow by one of the officers to his face. She said that she had been attempted to calm down her friend before matters escalated.

[24]

The witness agreed that Mr. Hughes became very uncooperative and did not comply with the repeated demands of the officers. She also agreed that he was obviously resisting them. She believed that all of these events happened very fast. Her friend was not complying with the attempts to place the cuffs to his hands. Ms. Lababie was not sure if the cuffs were on or off when the blow was struck to Mr. Hughes face by Sergeant McGilly. She did state that she believed his hands were behind his back at that time. After the blow was struck, she recalls that Mr. Hughes went "completely limp" and the officers were then able to bring him under control.

[25]

Patrick McGilly testified on his own behalf at trial. Mr. McGilly is an officer with lengthy experience in policing, initially with the Toronto Police Service but for most of his career with Niagara Regional Police. Following his initial police training at the Ontario Police College in Aylmer he updated his training throughout his career. His continuing use of force training is mandated and was updated on a yearly basis.

[26]

On the evening in question, Sergeant McGilly was the uniform platoon supervisor for the general patrol shift from 5:00 p.m. to 5:00 a.m. His duties were entirely administrative at the station and he did not wear the usual full kit for officers in the field. He did not have weapons or use of force equipment on his person while working at his desk that night.

[27]

The accused testified that he was working in his office which is located just off the lobby. His office did not have a direct view of the lobby but did have a monitor showing persons entering the police station from the two video views. He said the civilian at the front desk alerted him to a problem in the lobby and that John Garner was struggling with a male party. Mr. McGilly immediately proceeded into the lobby and saw a male party struggling around the benches with Officer Garner. He heard Garner repeatedly tell the male, subsequently identified as Mr. Hughes, to stop struggling and to stop resisting. The fact that Garner was having difficulty with the smaller male party was a surprise to Sergeant McGilly who credits the other officer with being extremely fit. His initial perception was that, while Garner had control of Mr. Hughes' right hand he was attempting, without success, to control his left. The difficulty seemed to be that the male was seated and P.C. Garner was attempting to control him while standing. Mr. Hughes appeared rigid on his left side and was locking his elbow. This prevented his left hand from being placed behind his back to have the handcuff secured. McGilly said that he had no idea what had transpired or the reason for the arrest. However in that moment, he was satisfied that an experienced and careful officer such as P.C. Garner would be conducting a lawful arrest and his duty was to assist, which he did.

[28]

The defendant said that he grabbed Mr. Hughes with his left hand and told him to relax and stop struggling. He attempted to grab his left arm and force it behind his back. However he was not successful in doing this. He then tried to straddle the subject for leverage to get the arm behind his back but was equally unsuccessful. He had a concern about applying great force to push the left arm behind the back. He feared that he might break Mr. Hughes' arm and he had no wish to do that.

[29]

Sgt. Mr. McGilly understood that the male was actively resisting his arrest. He was not complying with repeated orders by both officers to relax and stop his resistance. He testified that Mr. Hughes remained tensed, not allowing his left arm to be manipulated. He had a concern after he understood that the right hand was cuffed that if that hand might become free, the single handcuff could have been used as an edged weapon. McGilly was aware of an incident a month earlier where a cuff placed on a single hand became free during resistance to an arrest which caused injury to a fellow officer.

[30]

While he continued to make demands to Mr. Hughes to comply (what he referred to as tactical communication) he said that he did not pay any attention to him. His intention was not to injure Mr. Hughes but only to have him submit to the arrest. Constable Garner was standing behind and he was infront of Mr. Hughes. While he did come to believe that the right hand was fully cuffed, as the struggle continued he did not think that the left hand was securely cuffed until the end of the incident. He believed that Officer Garner was still attempting to lock the second cuff into place on the left hand.

[31]

The Defendant saw Garner use his forearm to strike the back of Mr. Hughes head in what Sergeant McGilly believed was what he called a distraction strike. At this point he still did not believe that the left hand was fully cuffed. Sergeant McGilly had already concluded that a change of tactics was required. As he described it "fights are a dynamic situation and I tried to develop a plan." He switched to his right hand and grabbed Mr. Hughes right side. He then administered what he described as a distraction blow with his open left hand, which is not his dominant hand. This strike was aimed at the right side of the person's jawline however the intended target was missed. He made contact with Mr. Hughes' mouth. McGilly testified that he had no intent to injure Mr. Hughes at all and specifically did not wish to make contact with his mouth, nose or eyes which might cause injury. When the distraction blow was delivered he still did not think that the left hand of Mr. Hughes was in the cuff. Officer Garner was still bent behind the subject and appeared to be still struggling to lock the cuff into place. He delivered his blow within a brief moment after Garner's strike. It was almost the same moment. Sgt. McGilly was clear that he would not have administered any blow at all to Mr. Hughes if he had understood that the left cuff had been clasped in place. And he testified that he would never, as a police officer in the course of his duties, strike a man who was restrained in handcuffs.

[32]

Immediately after his blow was delivered, P.C. Garner straightened up Mr. Hughes. At this point it was understood by McGilly that the cuff had been fully secured. He was then involved in escorting Mr. Hughes to the cells. In relation to the type of force employed on Mr. Hughes, the defendant testified that he believed that an open hand technique was the appropriate one to gain control of the party being arrested and to make him compliant. He indicated that he could have delivered greater force or used some part of his body such as a closed fist or elbow, but he did not do so for fear of hurting Mr. Hughes. And he testified that his response was consistent with his understanding of his police training. McGilly also noted from viewing the video that he struck the subject from his belt line. His blow was not fully engaged. He said he had no intention or desire to escalate the level of force that he used. He was aware from his training of the various scenerios for use of force and the recommended responses for degrees of non-compliance. In the face of active resistance such as this arrest, he believed that the use of soft or hard impact by hands, elbows or knees escalating to devices including sprays might have been appropriate to the situation. He also believed that he might have been permitted to use a fist or a knee to obtain compliance in these circumstances but he did not do so.

[33]

Sergeant McGilly testified that his use of force was only to obtain control of the suspect so the handcuffing could be safely completed. He did not know the subject's mental state or whether he might have a weapon or something which might be a threat to the officers. The Defendant said that in relation to the two video views of this incident, they did not give an accurate perspective of what he was able to see while the altercation took place. Both video views show the incident from the side, not from McGilly's perspective which was facing Mr. Hughes directly.

[34]

The views shown on the videos do not establish, from my own observation precisely when either handcuff was secured. No clear view of this can be seen. Sergeant McGilly's evidence was that he did not see the left cuff secured at any time prior to his striking Mr. Hughes during the struggle to gain control of him. Throughout, he did not believe it was secured. He found Mr. Hughes to be aggressive and non-compliant and was concerned that he had not been searched properly for weapons prior to the arrest. For these reasons, securing both handcuffs was necessary and required, in his view.

[35]

On cross-examination the defendant indicated that he never heard the clicking sound which would indicate the left cuff was secured. He agreed that in his police training, the use of force wheel was considered a guide but that judgment is required by all officers in these situations. He agreed that Garner had contact with and apparent control of Mr. Hughes' right hand.

[36]

The Crown then asked Mr. McGilly to comment on the video views. The Defendant acknowledged that, while he believed Mr. Hughes was actively resisting and attempting to pull his arm back, he was not making any punching movement or striking out towards him. His fear was that by forcing the man's left arm, he might dislocate it or break his arm. He said that his intention was to distract Mr. Hughes from his focus to allow the cuffing to be completed. And he said further that if he came to believe at any time prior to his blow that the cuffs had been secured, he would not have struck Mr. Hughes. That would have ended the incident.

[37]

The accused agreed that the video shows the left hand behind Mr. Hughes back at the time of the blow. However he reiterated that he understood that the struggle to cuff and secure the left hand continued. He made a split second decision to apply the strike to secure the arrest. While this altercation was slowed down to frame by frame in the video, what happened took mere seconds. A quick decision was required, in his judgment, to end the struggle.

[38]

When shown a specific part of the video which shows Mr. Hughes' left hand being held behind Mr. Hughes' back, Sergeant McGilly indicated he did not believe that that view gave a true depiction of what he was confronting or the angle in which he was engaged. He added that he made a conscious decision to deliver the blow with his less dominant hand which would use less force. The accused was shown the video from the entrance area at 10:11 p.m. and forty-two seconds. It was suggested by the Crown that it appeared in the video that the cuff had been secured on the left wrist of Mr. Hughes at that point. The witness agreed that this image might show that a portion of the left cuff was on. However, he reiterated that he believed it was not yet closed or secured. The quality of that view on the video is such that I was unable to see a clear image of a handcuff on the complainants' hand. The witness agreed that the video might indicate that the cuff was partly on the left wrist. I found his answer entirely speculative given the unclear image he was asked to comment upon.

[39]

Mr. McGilly reiterated on cross-examination that he believed striking Mr. Hughes as he did was a reasonable application of force in the circumstances. The fact that both Mr. Hughes' hands were still held behind his back at the time did not detract from his judgment that this was necessary. And he believed that Garners actions around the left wrist reinforced his belief that the cuff was not fully secured at that point in the incident.

[40]

The other officer involved in this altercation, John Garner, also testified. He now holds the rank of Detective Constable. D.C. Garner came upon Mr. Hughes and his companion in the lobby that night. His intention was to try to explain to Mr. Hughes what his options were and to assist him. He explained the POA procedure to Mr. Hughes and told him his options. Garner told Hughes that one of his options would be to go to Court to dispute the ticket. In fact he believed he could make a good argument.

[41]

P.C. Garner said that Mr. Hughes became suddenly agitated to the point that it looked almost like a switch had been thrown. He said that Hughes started yelling and swearing and making hand gestures, all of which indicated to him that he was no longer listening. Mr. Hughes proceeded to grab the ticket out of Garner's hand and went to the front door, yelling that he believed this was 'BS.' At the door he added words to the effect that "there is going to be a couple of arsons in the city tonight". According to P.C. Garner he was not prepared to ignore such words and he proceeded to arrest him for what he perceived as a threat. And he told Mr. Hughes he was under arrest for that charge.

[42]

Officer Garner proceeded to grab Mr. Hughes from behind in the lobby. His intention was to complete the arrest and place the cuffs on him. He indicated that Hughes did not cooperate but rather, in his words, "planked out" becoming rigid and resistant. To deal with this he lifted him physically off the ground in an attempt to obtain compliance. He then placed him on the couch where Mr. Hughes' arms remained rigid. While Garner gained control of his right arm, he could not get his left arm to move. The officer said he repeatedly told Hughes to stop fighting and to settle down but that Mr. Hughes continued to struggle with him.

[43]

Garner became aware of Sergeant McGilly entering the room and grabbing Mr. Hughes left arm. Garner then placed his arm around the male's neck. He said this was not a choke hold but rather in an attempt to get control. During this time he said that he was aware that the left arm was still locked. However, with the assistance of McGilly, he could then concentrate on securing the handcuff on his right arm. To do so, he forced Mr. Hughes right arm behind his back and he was able to secure the cuff despite continuing resistance from the complainant.

[44]

In relation to Mr. Hughes' left arm, Garner said that he continued to be unsuccessful in securing the cuff. He was concerned that if both cuffs could not be fully secured, someone might be injured including one of the officers. He remembers Sergeant McGilly repeatedly telling Mr. Hughes to settle down and calm down. And, he recalls that he had difficulty securing the cuff on the right arm because of the bulky winter jacket that the man was wearing. As the struggle continued Officer Garner indicated that he was able to get the left arm behind Mr. Hughes' back, but it was never in control. He said that at this point, Mr. Hughes was still attempting to pull his left hand away. When the left hand was brought towards the right one, Mr. Hughes was able to pull it apart. Garner believes he was able to get the cuff hook partly on the left wrist. However he could not secure it because the connecting chain between the handcuffs was too far apart. While the cuff may have been partly on or near the left wrist, he could not bring the cuffs together to secure them.

[45]

Garner then decided that he would have to distract Mr. Hughes to secure the cuffs. Following his training, he said that he delivered a distraction blow with his arm to the back of Mr. Hughes head. He saw that this was immediately followed by a blow from the front in quick succession by Sergeant McGilly. Immediately afterwards, he was able to get the left hand under control and secure the cuff. The witness was clear that he did not believe the handcuffing was complete until after the distraction strike by McGilly. It was D.C. Garner's belief that these strikes to Mr. Hughes were what permitted the completion of the handcuffing.

[46]

Despite what he originally understood as words of threats, Garner decided not to charge Mr. Hughes that night. He believed that the young man was potentially on drugs or had some mental health issues and decided that criminal charges would only add to his personal issues.

[47]

On cross examination Officer Garner said that he believed he had a duty to arrest Mr. Hughes at the time, given what he perceived as a potential threat involving arson. However after speaking with Mr. Hughes in the cells later he did not believe that the young man would actually have followed through with anything. I took his answer also to be that he believed Mr. Hughes was just frustrated and angry when he made that comment. The officer reiterated that Mr. Hughes was resisting the entire time until the cuffs were both secured. He said he no intention of giving him an opportunity to assault either officer with the half deployed handcuffs. Garner was unable to say whether his own distraction strike would have restrained Mr. Hughes if the Sergeant's blow had not been used.

[48]

When shown the part of the video by the Crown which was said to show the cuff secured on the left wrist, Officer Garner did not agree that this was shown. Officer Garner said in his evidence, "what you refer to as the cuff is my thumb". He acknowledged that the cuff may have been partially deployed at that point. He was clear in his evidence that, before both blows, the cuff was not secured and he could not lock it into place.

[49]

The Defence called Stephen Somerville who was qualified as an expert as police use of force as well as police training in use of force techniques. He was engaged in police training throughout his career and trains the police instructors in this area. He also was familiar with the models of use of force currently engaged by police forces in the Province of Ontario.

[50]

Mr. Somerville watched the videos which were introduced into evidence in this trial. He characterized the behaviour of Mr. Hughes in his confrontation with these Niagara Police officers as "actively resistant". He concluded from his observations of the video and the evidence of the witnesses that the use of force used by Patrick McGilly was appropriate to the situation and consistent with accepted training standards. It was the opinion of Mr. Somerville that the distraction techniques employed by both Garner and McGilly were consistent with their training.

[51]

According to this witness, the intention in using such techniques is to end the conflict by stunning the individual to allow the police to bring the person under control. The danger from an ongoing failure to control a subject during an arrest is the risk to the safety to the arresting officers as well as to the party.

[52]

And finally, the Defence presented character evidence through Father Gerard Power and Superintendent Robert Wright, Commander of District Operations for Niagara Regional Police Service. These witnesses testified that Sgt. McGilly has no reputation for violence within his general community and the police community. During his history as a police officer he has no discipline record and no indication of violence in his career.

A N A L Y S I S

[53]

In a criminal trial, the burden to establish guilt beyond a reasonable doubt never shifts from the Crown. All of the evidence at trial must be considered in determining whether this standard has been met. And the Court must also consider the tests articulated by the Supreme Court of Canada in W(D) when the accused testifies and advances their own narrative of these events.

[54]

The evidence before the Court which might be relevant to potential criminal liability is that of the complainant, Johnathan Hughes, Ms. Lababie and the two videos which captured what took place in the lobby of the Niagara Falls detachment that evening.

[55]

Mr. Hughes gave his version of what happened as I have outlined. He was not an impressive or credible witness. His evidence contained both internal and external inconsistencies. Mr. Hughes maintained throughout his evidence that he was not resisting his arrest and the securing of handcuffs by both officers. However, I find that the evidence is clear that he physically resisted them at all times. He stiffened his body and locked his left shoulder and elbow. He also struggled to keep his hands apart at the critical time when P.C. Garner was trying to secure the left handcuff.

[56]

I find that Mr. Hughes' conversation with Garner in the cells after his arrest and his question about whether keeping his hands apart might constitute resisting arrest indicates that he was well aware that he had done so. Mr. Hughes was concerned that his active lack of cooperation during the arrest might create further legal difficulties.

[57]

I also found that Mr. Hughes was either disingenuous or evasive about what he said to Garner at the entrance area prior to his arrest. Again, the audio of his later conversation in the cell is revealing. It corroborates the officer's version that some sort of potentially threatening words about arsons in the city were said by the complainant.

[58]

I do not find fault with officer Garner's decision to arrest Hughes upon hearing those words and observing the erratic behaviour of Mr. Hughes.

[59]

What was confronting the police that evening was a young man who felt aggrieved and angry and who was having great difficulty controlling himself in a police station. As P.C. Garner said in his evidence, despite his efforts to assist Mr. Hughes, the man's reaction went from zero to one hundred immediately. He tore the ticket from Garner's hands, swore at him and said words and made a gesture which he understood were a potential threat.

[60]

In my view, ignoring all of this was not consistent with Officer Garner's duty as a police officer. He had no idea who or what he was dealing with at that point. I also find that the fact the officer later decided not to charge Mr. Hughes after he became aware of his personal issues is irrelevant. That was properly within his discretion to do so and does not detract from his credibility. Rather it was compassionate.

[61]

Neither Mr. Hughes evidence nor that of Ms. Lababie advanced the case for the Crown. Ms. Lababie was a sincere witness who tried to calm her friend that night. But she was not very attentive to what was happening in front of her.

[62]

What is critical in considering the case for the Crown is the video. It shows the two strikes being delivered to the complainant's head by both officers at a moment when Mr. Hughes' hands are positioned behind his back. Observing that scene in the video for the first time is startling. But it is certainly not the end of this inquiry.

[63]

I have already indicated that all of the witnesses in this trial were asked to comment on the video views as they were advanced by the Crown frame by frame. Life is not experienced in slow motion or by freeze frame. This incident took mere seconds, and the intervention of Sergeant McGilly was limited to the closing moments. A camera may not lie but it captures only a single and limited perspective. The video views were at right angles to what the two officers were confronting.

[64]

What a video can never articulate is the perspective of the human participants. It lacked audio and image clarity. For example, what was suggested as by the Crown as showing the left handcuff was not clearly what can be seen in the video. P.C. Garner thought it may have been his thumb. While these videos are valuable evidence, they have critical limitations, in my view.

[65]

I will comment generally on the evidence of Patrick McGilly, and also John Garner. I found both witnesses to be forthright, responsive and careful in their testimony. Patrick McGilly was entirely consistent and credible when he gave his version of these events. That version never wavered. And he emerged unscathed from cross examination.

[66]

The Crown fairly concedes that the accused had no wish or intention to harm Mr. Hughes that evening. It is obvious that Sgt. McGilly genuinely regrets that the force he used caused injuries to the complainant's mouth and teeth. The sole and narrow issue in this trial is whether the force he used was reasonable or whether it was excessive in the circumstances.

[67]

The use of force by police officers in the course of their duties is governed by Section 25 of the Criminal Code. As stated by the Supreme Court of Canada in R v Nasogaluak 2010 SCC 6, [2010] 1 S.C.R 206, at paragraph 34:

"Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him-or herself, or another person under his or her protection, from death or grievous bodily harm. This officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis.."

The law is easily stated. It's application based on the judgment of the individual officer is the critical issue.

[68]

I ask myself, what choices Sergeant McGilly had when he first confronted this struggle in the lobby. He saw a male party actively resisting arrest by P.C. Garner. He could hardly ignore this or pause to cross examine his colleague on his arrest grounds. That would be absurd. His duty was to assist and, only if lawfully necessary, use some degree of force in doing so.

[69]

Johnathan Hughes never struck out or kicked at the officers during his struggle. But he continued to physically resist their efforts to handcuff him up to the moment that the second cuff was fully secured. According to his evidence, his refusal to cooperate also continued after that moment when he assumed what he called a "bull stance" to resist being moved after the cuffs were on. While Mr. Hughes may have been frustrated by what he felt was a refusal by the officers to tell him why he was being arrested, his physical resistance was not justified in my view. It also created a real hazard to his own safety and that of the officers. I should add that I accept P.C. Garner's evidence that he informed Mr. Hughes initially of his reason for arrest although probably did not repeat this during the struggle.

[70]

I find that the actions by both McGilly and Garner were consistent with their training and reasonable in the circumstances. It would not have been reasonable for them to leave Mr. Hughes with only one handcuff secured. This would create an obvious hazard. Police officers cannot partially arrest a person who resists. Once commenced, the arrested party needs to be secured, particularly when verbal commands and directions are being ignored.

[71]

This struggle was referred to in the evidence by the accused as a "dynamic situation" and I agree with that description. Sgt. McGilly, along with Officer Garner, had to use their best judgment of what was necessary to put Mr. Hughes into compliance. That is why they delivered what they called distraction strikes to his person. I fully accept their evidence on that issue.

[72]

The Crown emphasized in argument that there were no aggressive or assaultive actions by Mr. Hughes against the officers. If that suggestion is that officers cannot escalate the use of force unless they are first subject to assaultive conduct against them, I must strongly disagree. This would invite physical injury. While the police have a duty to use no more force than necessary, active resistance to being handcuffed must be physically overcome as a matter of safety.

[73]

I find that the accused attempted to use reasonable force by his use of his open and non-dominant hand. That his blow missed its target area was not intentional. His intention was to follow his use of force training and cause Mr. Hughes to lose focus briefly to secure the left cuff. While McGilly regrets having caused injury, he believed and the evidence supports that it had that effect.

[74]

The video shows both blows being struck when Mr. Hughes' hands were situated behind his back. If an officer were proven to strike an arrested person secured in handcuffs, it is difficult to see how that use of force could ever be justified in law. That is not the case before me. I accept Sgt. McGilly's evidence that he was not aware of the left cuff being secure at any time before he struck Mr. Hughes. He continued to believe the opposite and his evidence is completely corroborated by P.C. Garner. The officer's perspective was not the same as the camera. I find as a fact that both handcuffs were never fully secured nor was the complainant under control until the end of the incident. What the camera cannot show is Hughes pulling his hands apart at the time the strikes were administered. Despite contact by Garner with Mr. Hughes' hands, they were never under his control at the critical time.

[75]

On the evidence before me, I find that the use of force by Patrick McGilly was reasonable in the circumstances. Despite an unfortunate injury to Mr. Hughes, the officer is not legally accountable. Mr. Hughes regrettably, created the situation which led to what happened.

[76]

This criminal charge has not been proven to the legal standard. The evidence is well short of the required standard of proof in a criminal trial. But I wish to be clear in these reasons that I also find that the actions that evening by both Sgt. McGilly and P.C. Garner were entirely consistent with their duties as police officers. In my view, no fair minded member of the public who heard this evidence would find that they were not acting properly. They were acting properly. This charge is dismissed.

Released: November 28, 2014

Justice Douglas B. Maund