Court File and Parties

Court File No.: Central East - Newmarket 12-03227 Date: 2014-02-26 Ontario Court of Justice

Between: Her Majesty the Queen — And — Elnur Guliyev

Before: Justice P.N. Bourque

Counsel:

• P. Castiglione, for the Crown
• D. Morris, for the accused Elnur Guliyev

Judgment

Released on February 26, 2014

Overview

[1] As a result of an attendance by police officers and liquor inspectors to a bar in Richmond Hill, an altercation ensued and the defendant has been charged with assault police causing bodily harm and threatening.

Crown Evidence

Milad Baygan

[2] ...is a York Regional Police officer of some 2 to 3 years' experience. He was assigned a special community detail in which he and another officer were assigned to go with liquor and gaming inspectors to drinking establishments in York Region and check the patrons for intoxication (he referred to this as being "over served") and whether they were of drinking age. The officer stated in examination in-chief that he was dressed in dark trousers and a dark jersey (not a police uniform) but had a dark police vest with the words "Police" written across the right breast. He also had his police badge on a string around his neck. He also had his police belt on (I will refer to this issue again below).

[3] On March 23rd, 2012, the officer with Officer Dimitrakopoulos and three inspectors went to several bars, one of which was called Marlowe's. He described the bar as holding some 250 to 300 people and he said that it was full that evening. There was a large dance floor with 80 to 100 people on it. He stated that the light was dim and the music was loud. He and the others walked and stood on the stage near the disk jockey and surveyed the persons on the dance floor.

[4] He stated that he saw a person (the defendant), at least three meters from him, on the floor and he was originally swaying with his eyes open and closed for long periods of time. He thought the person had glassy eyes. The officer decided that he was going to approach the defendant to check for his age and for sobriety. The officer stated that he appeared to be intoxicated by alcohol. The officer said that he was concerned for his wellbeing. An inspector beside him (Amanda Farrell) said that she was going to approach him and she went onto the dance floor and the witness followed. The inspector approached the defendant and the witness said that she identified herself and the defendant appeared to be calm, and responding. The dance floor was busy and they wanted to go to a quieter spot. The inspector then started to lead the defendant off the dance floor. The officer was following the defendant and stated that the defendant was stumbling and could not stand in a straight line. He stated that there was a group of 5 or 6 men at a table and the defendant leaned over (was he stumbling at this point?) and he heard the defendant say "follow me".

[5] The officer stated that they went into the dining area. He stated that the inspector asked him for his identification. He stated that the defendant was becoming agitated and was speaking loudly to the inspector. He stated that the defendant was starting to swear at her and saying "Fuck you, No, Fuck you". The officer stated that the defendant was "escalating" and he stepped in and identified himself as a police officer. He stated that he showed the defendant his identification. The defendant was continuously shouting and he was clenching his fist and he appeared to be upset.

[6] The witness said that everyone was speaking in a loud voice. The officer said that he said to the defendant that he needed his name, to identify himself and to calm down. The witness said he was within 15 to 20 inches of the defendant, and he can smell a strong odour of alcohol from his breath and he appears to be heavily intoxicated. The witness said that he told the defendant that he needs to know his name and age and he has to stop screaming. The defendant said "Fuck you, just take me to jail", and he put up his hands with his fists together (the officer demonstrated in the witness box and it looked like a gesture of someone whose hands are in handcuffs).

[7] The witness said that, "I don't want to take you to jail". The witness told the defendant to have a seat as they were in front of a booth and the defendant could have just sat down. The witness stated that at that point the inspector was right beside him. He states that he sees the defendant bending his knees and appears to be sitting down. He states that he then feels a huge impact into his mouth and believes that the defendant has just head butted him in the mouth. He describes it as a hard hit.

[8] The witness pushed the defendant back and proceeded to take control of him and place him under arrest. The defendant was resisting and they went to the ground and I heard voices saying to him "Don't resist the police". The officer was on top of the defendant and the defendant was kicking. The officer felt a punch on the right portion of his face. The officer says that at one point, he felt a kick and punch to the back of his head. The officer put in a 1033 call on his radio for assistance and the bouncers were coming onto the scene.

[9] The officer stated that he and the other officer handcuffed the defendant and took him outside. While outside, the officer said that the defendant said to him, "You're lucky I'm in handcuffs, and once these come off, I'm going to find you and kill you". The officer said that he was concerned about what this person may eventually do.

[10] The officer stated that he said that he had blood in his mouth and that the next day he went to the dentist and the dentist put metal splints behind his teeth and they remained for two weeks. There was no further work required on his teeth. No medical report for any dentist or doctor was filed by the Crown. He also stated that he had swelling to the right side of his mouth and to his left jaw. He also had an abrasion on the left thumb. In the pictures filed, I could not make out any swelling but I could see the abrasion on the thumb. He is not sure how he got the abrasion and it may have been from being on the ground.

[11] In cross-examination, the officer admitted that he could have miss-described the dining area of the bar. He also admitted that the scene from the music and people was loud, but he denied that it was "deafening loud". He admitted that nothing in his notes indicated that when he saw the defendant he appeared to be intoxicated, or that he appeared to be underage. The officer admitted that when the defendant stopped dancing, he did not know whether he had done that voluntarily. The officer never noted in his notes the heavy smell of alcohol or that the defendant was heavily intoxicated. The officer's explanation for these deficiencies was that "I may have been in shock from the incident". He gave no explanation as to why he could not have added these items to the notes sometime later. The officer also agreed that none of the many civilians who witnessed the incident were asked to give statements.

[12] As a further issue, when the officer, in examination in-chief agreed with the Crown that what he was wearing that evening was shown in Exhibit 1 (a photo taken at the police station right after the incident), he did not mention that he was wearing a coat over his clothing. I am amazed that he left that out of his original evidence. Clearly it is possible that the words "police" on his vest and his badge around his neck may not have been visible to the defendant. I also note that in Crown re-examination, the officer stated that the jacket was zippered at the bottom and that definitely obscured his weapon. It is also more likely than not that the "police" lettering on his vest would also be covered by the coat.

[13] The defence counsel played for the officer a short (15 second) video of the dance floor of the bar, taken on another evening. The officer agreed that the scene on March 23-24 would have been similar, including the number of people on the floor, the level of noise and the status of the lighting.

[14] The officer denied various suggestions put to him by defence including that he held the defendant as they walked from the dance floor, and that he pushed the defendant down onto the seat and then pulled him up and pushed him onto the back of the seat.

Nickolos Dimitrakopoulos

[15] ...is a York Regional Police Constable of some 6 year's experience. He attended at Marlow's bar that night with Officer Baygan and the three liquor inspectors.

[16] He stated that he was in plain clothes but had his "use of force" implements including his service pistol, and was wearing a bulletproof vest with "Police" written in large letters across the back. He also stated that he was wearing his service badge around his neck. He did not mention he was wearing any overclothing. In cross-examination, he admitted that he could have been wearing a jacket.

[17] He states that they all went into the premises and walked up to and near the stage area. It was lit with flashing "disco" lights and the music was loud.

[18] He states that he saw two men on the dance floor who caught his attention. He stated that both had glassy and red eyes and they were standing and swaying back and forth and "wobbling". He was 3 to 4 meters away from them. He stated that Officer Baygan and Inspector Farrell went over to the two men and he followed for "officer safety". The officer could see Inspector Farrell speaking to the two men and they then proceeded over to the farthest booth in the restaurant area which was some 13 to 14 meters away. He states that they passed a table of some 5 or 6 men and he believed they were friends of the defendant. He states that when they came to the farthest booth, that he turned to face the premises with his back to Officer Baygan and the defendant. He stated that he told the persons not to crowd, by saying "Guys, we're the Police, just give us space".

[19] He stated that he heard someone in the crowd say "Man, what are you doing? Stop fighting with the cops". A woman yelled "Nico" in a voice of panic. He turned around and he saw the defendant lying face up on the seat of the booth. Officer Baygan was looking at the officer and he looked shocked. He then saw the defendant punch officer Baygan on the forehead with his fist. The officer turned back to the crowd and said "nobody move". The officer went up to assist and the defendant was still on his back.

[20] The officer said "Police, don't resist and don't fight us". The officer also said "Stop it man, don't fight , show me your hands". The officer also said "It is not worth it, just do it". The defendant then complied and turned around on his stomach and he went onto the floor.

[21] The defendant was handcuffed and the officer and Baygan lifted him up and took the defendant outside. Baygan called for support and while they were standing there, the defendant said to Officer Baygan, "You are lucky, I am in these handcuffs when they come off you will regret this because I will find you and kill you".

[22] The officer stated that there was a crowd forming outside and he heard people saying in Farsi to release the defendant. The officer admitted that he has absolutely no knowledge of the Farsi language and could not make out a single word that they were saying. The defendant was put into a police cruiser of another officer and taken to two district. The officer later discovered that there was no video surveillance of the inside of Marlowe's Bar. I note he did not check until 6 months after the event.

[23] In cross examination it became clear that the officer left a lot of the scenario out of his notes. The officer viewed the video which is Exhibit 5 and while agreeing the scene was similar stated that the video was generally darker than the actual scene. He agreed that when the defendant struck the officer in the forehead, he was doing so from a lying back position but the officer said he lifted himself up to strike with his right hand without hitting the nearby table.

[24] With regard to the issue of police identification, the officer's evidence was not very clear. What was clear was the fact that the officer for some reason felt the need (once the altercation started) to tell the persons around that "Guys, we're the police" (May 2, page 13). If the officers indeed were clearly identified as such by their clothing and actions, surly that would not have been necessary.

Isabelle Dion

[25] ...is an inspector with the Alcohol and Gaming Commission. By the time of these events, she had been an inspector for 6 months. She was dressed in civilian clothing and went with two other inspectors on a joint Liquor Licence inspection with two York Regional Police officers. She could not describe the police officers clothing but admitted that they may have been wearing jackets.

[26] She described that her function is to check upon compliance by licensees with the terms of their licences and with compliance with the Liquor Licence Act. She specifically stated that it was not her function to arrest anyone. She would check for age and intoxication of patrons and if necessary bring infractions to the attention of the licensee. She indicated that if the police wished to arrest someone for some infraction, that was a matter up to them.

[27] She entered the premises of Marlowe's with the other two AGC inspectors and the two officers. They went to the stage area of the bar and she stood up on the stage to get a better view of the dance floor. She described the area as being dark with flashing strobe lights (although she said she could see and was used to being in this environment as part of her job) and loud music. She saw 3 men on the dance floor and the defendant (whom she described as a middle eastern looking male) was swaying back and forth (not to the music) and had his eyes closed. She stated that as part of their job, they were looking to see if the bar was serving intoxicated persons and she stated that on seeing him, it would be their usual practice to go up closer to see if there were other signs of intoxication. In her evidence in-chief, she mentioned nothing about whether the defendant was underage. When asked by the defence counsel the age she first said in his 20s and then added upper teens.

[28] She stated that she motioned to Amanda Farrell. Amanda Farrell, after a few minutes, went over to the defendant. Officer Baygan followed and so did the witness.

[29] She stated that Amanda was speaking to the defendant but the witness could not hear anything being said. She could not see if anyone had shown any identification to the defendant. The defendant, Amanda Farrell and everyone else then walked off the dance floor and went to a booth area in the restaurant section. The witness did not see anyone touch the defendant although she was the final person in a line of 6 people. The narrowness of the space would have forced people to move in single file. She could see Amanda Farrell and Officer Baygan speaking to the defendant. She again did not see anyone show any identification to the defendant. She saw the defendant sitting on the bench in the booth. She cannot say how he came to be sitting down, that is, she cannot say whether or not it was voluntary. She stated that she was 4 to 4-1/2 feet away from the defendant.

[30] She also cannot say whether Officer Baygan identified himself to the defendant. She says that she saw his badge hanging from his neck.

[31] The witness moved closer and stated that the defendant was showing signs of aggression. She stated he was frowning and stated: "Then arrest me then", and he held up his hands with his wrists touching as if in handcuffs. The defendant also said "Who the fuck do you think you are".

[32] The witness stated that were friends of the defendant gathering around. She stated that the defendant lifted himself partially off the bench and head butted the officer. At this point the witness was some 2 feet away and there was nothing blocking her view. Officer Baygan began to restrain the defendant and the defendant yelled to the other officer "Nico, get over here". Officer Dimitrakopoulos went over the table to assist Officer Baygan. The witness stated that they were yelling to the defendant's friends, "Stop, stop, they are cops".

[33] The witness saw the officers leading the defendant outside and went outside. Many police cruisers came to the scene and the police helicopter (with searchlights bathing the scene) showed up.

Amanda Farrell

[34] …works for the Alcohol and Gaming Commission. She attended at Marlowe's bar that evening with the two other inspectors and the two police officers. She stated that it was her job to check for compliance with the Liquor Licence Act and if there were infractions, to bring it to the attention of the licensee and if necessary do a report and it was up to the OPP (her superiors) to lay charges. She was not there to investigate the laying of charges against patrons. She said that the inspectors were in their street clothes and that the officer were dressed in "police plain clothes" which was a blue/black bulletproof vest and jeans. The officers had a badge around their necks.

[35] She stated that she was in the lead and showed the staff he ID and walked through the premises including the women's washroom. She went through to the dance floor and stood on the raised area and looked at persons on the dance floor. She stated that it was dim lighting in the dancing area but brighter in the area of the restaurant. She stated that a person caught her eye who was standing and swaying on the floor and would close his eyes for several seconds at a time. At one point she thought he was sleeping on the dance floor. She mentioned nothing about issues to do with his age. She watched him for about 2 minutes and then spoke to Officer Baygan who was beside her and she then went up to the defendant, as she wanted to assess him. She stated that she showed her identification to the defendant told him who she was and wanted him to come with her to a quiet area. She did not remember her exact words but said words to the effect of "Come this way". She said that there was loud music and she spoke in voice that she could be heard.

[36] She did not recall any response and she moved over to where the tables were and she and Baygan followed.

[37] When they got to a table area with a bench, she asked him for his identification and he said "No". He put his hands into his pockets. She said that he seemed agitated. Officer Baygan asked him to sit down on the bench and the defendant refused to sit. The defendant became belligerent and said "Fuck you, fuck you asshole, just arrest me". She stated that he put his hands out and held together in front of him. She did not recall that the officer had stated that he was a police officer.

[38] The witness then moved back a couple of steps, because she thought the defendant was becoming more agitated. The defendant at some point had sat down. The witness remembers hearing a sound of "skin on skin" and said that the defendant stood up and his forehead went into the mouth area of Officer Baygan.

[39] She said that the officer then tried to arrest the defendant and the officer was on the defendant who was then lying on his back. The defendant was trying to hit the officer and the witness was actually holding the defendant's legs. The officer was able to lift up the defendant and escorted him out of the bar.

[40] The witness stated that at one point, some other persons in the restaurant were "swarming" them and the other officer, Officer Dimitrakopoulos was dealing with that. She is not a witness to anything that the defendant said outside the bar while he was under arrest.

Evan McInnis

[41] …was a new liquor inspector and was in attendance that evening. With regard to the police officers and their clothing, he stated they were in plain clothes and that they had badges around their necks but the badges "were not in plain view at the start of the inspection". At no point in his evidence did he say that the officer's badge was shown to the defendant.

[42] He stated that he was with the others on the raised platform at the dance floor and saw the defendant some 10 feet away. He believed that the defendant was moving slowly with slow motor skills and had glassy eyes. He went up behind Farrell and saw her show the defendant her badge. There was some talking but he did not hear it. Farrell and Baygan and the defendant moved toward the seating area and the witness followed. he did not see anyone touching as they moved. He did not see Baygan and the defendant side by side as they walked.

[43] They got to the booth area and the witness was to the right of Amanda Farrell and Officer Baygan was in front of the defendant. At some point the witness saw the defendant seated but cannot say how he came to be seated. He stated that he was distracted by a friend of the defendant who was inquiring about the defendant and the witness stated that they were inspectors and the defendant "would be fine". He stated that he heard Baygan speaking but could not hear what he said. He heard some yelling and looked back toward the defendant and saw the defendant rise up off the bench and with his forehead strike the chin area of Baygan. The friend of the defendant and some 4 or 5 others began to push towards them and the witness held up his arm. He stated that there was then a "scuffle" between Baygan and the defendant and they ended up on the floor.

[44] He recalls Baygan and Dimitrakopoulos then walking the defendant outside and the witness followed. He stated that he saw the defendant up against a wall with his hands behind his back and was being handcuffed and then was put into a police cruiser by Dimitrakopoulos. He did not hear any words spoken by the defendant or any of his friends who by now were standing out in the parking area.

Defence Evidence

Video Clip

[45] The defendant filed as an exhibit a short video clip (not taken at the time of the incident) of the scene on the dance floor of Marlowe's during the evening showing patrons dancing to the music produced by the sound system. This video was shown to all of the Crown witnesses. All the witnesses agreed that it was similar to the scene at Marlowe's on the evening of March 23, 2013. None stated that the light was any brighter on the night of the 23rd. To any casual observer of the video, it is apparent that the lighting was very dim with multi-coloured strobe lights. The music is not just loud, it is very loud. Most Crown witnesses seemed to be at pains not to agree with the defence suggestion put to them that the music was more than just loud.

[46] From this exhibit, I conclude that any but the most cursory view of the defendant from the raised platform was virtually impossible. Any reference to the status of the eyes of the defendant, be they open, closed glassy or otherwise, could be nothing more than mere speculation. They could see a general outline of the defendant and I don't doubt that he was swaying back and forth. Why this should be anything other than a remote possibility of any impairment is unknown to me. Any idea of the age of the defendant from such a view was a complete impossibility and I specifically reject Baygan's evidence that the defendant's age was something he had some concerns about. I am reinforced in that finding by the fact that such a concern was not in his notes.

Elnur Guliyev

[47] …testified in his own defence. He is 20 years old and immigrated from Kazakistan when he was 16 years old. He works for his brother's medical business.

[48] He stated that he had worked that day and about 10:20, his brother Farid called him and asked him to join him at Marlowe's bar with some friends. The defendant denied having anything to drink that day and did not consume any drugs. The defendant called a friend, Khetag Lolaev, who came and picked him up and they went to Marlowe's. They had their identification checked at the entrance and went in and joined the defendant's brother and about four of his friends. The defendant had a regular beer and ate some food. Just before midnight he and his friend Khetag (who he describes as a big man) went onto the dance floor to dance.

[49] He states that he was dancing normally when a woman comes up to him and begins talking. He looks over to her and she motions him to follow her. He does not know who she is. He follows and then a man in dark clothing comes up beside him, takes his arm and points with his finger where he is supposed to go. He is taken past the table where his brother is and he taps his brother on the shoulder. They stop about 2 meters from his brother's table.

[50] He is not aware of the identity of any of these two people and does not know that the man is a policeman, and simply describes him as a man in dark clothes.

[51] The man tells the defendant to "Show me your I.D.". The defendant says "No, why". The man again says "I just told you, show me you I.D., show it". the defendant says "No, why, what happened?".

[52] After that, the defendant states that the man told him to "sit down". The defendant stated "why no". The man said again: "sit down". The man put his left hand onto the defendant's right upper chest area and the defendant said "No". The officer said "I told you to sit down", and the man pushed the defendant down.

[53] The defendant stated that he fell back onto the bench which was just behind his knees. He stated that he rocked and righted himself sitting up. The man put his hands on the defendant's shoulders and the defendant said "What did I do?".

[54] The defendant stated that he was trying to get up and get the man's hands off of him. He was trying to get up all the time. He stated that the man grabbed his right upper arm. The defendant was attempting to stand up onto his feet and then the man turned him. As the man was turning him the defendant's upper forehead struck the mouth area of the man. The defendant describes as being in some pain. He states that the man then jumped on him and he was struggling and was flailing out and probably hit him on the head. He states that there was now a lot of noise and people were yelling and the defendant saw his brother who cried out "Elnur, stop. It is the cops".

[55] The defendant states that he was turned around and his arms were put behind his back and he was handcuffed. He stated that he was lifted up by the handcuffs and then led away by the officer.

[56] As they were walking out of the bar, the man said something to him in Persian which the defendant took as some type of insult. He stated he knew a little Persian because some of his friends spoke it.

[57] He specifically denied threatening the policeman in any fashion. He stated that he was put up against a wall outside and his pockets were searched and he was put in a police cruiser and taken to the station. He stated that he had two bumps upon his head. He was looked at by some medical personnel and was then taken home by his brother.

[58] The defendant specifically stated that until his brother screamed out to him that the people were cops, he did not know who those people were. He stated that he was simply trying to get up from the booth and his actions were in self-defence.

Khetag Lolaev

[59] The witness is a friend of the defendant. He went with the defendant to Marlowe's that night. He largely confirms the defendant's evidence about going there and taking the witnesses vehicle.

[60] The witness also confirms their arrival and drinking a beer and having some food. He confirms that they went up to the dance floor. He confirms that a blonde woman went up to talk to the defendant but he says that with the loud music, he could not hear what was said. He states that he then saw the defendant being led off by a man in dark clothes and a "dark jacket". This witness did not see any identification being shown.

[61] The witness stated he saw his friend being pushed down on the seat and that his head hit a board on the back of the seat. He demonstrated with his arms showing that the man was holding his friend down. The witness then stated that lots of people were getting in his way and he did not see much else. He heard the defendant's brother yelling out that these people were the police. He states that he went outside and saw the defendant being put into the police cruiser. He did not hear anything said by his friend outside. He stated that when he got up to the booth area there were at least 7 or 8 people around and he got no closer than 8 feet or so. He admits that he did not see the scuffle nor did he see his friend being handcuffed.

[62] He was questioned about his contacts with the defendant throughout this matter and admitted that he spoke to the defendant several times. The crown was trying to suggest that he was being prepped by the defendant with regard to the testimony. They clearly spoke about these things and I am alive to the fact that the previous contact outside of court may have had some effect upon his testimony. I am also alive to the suggestion that the defendant was trying to assist his friend's testimony.

Farid Guliyev

[63] The witness is the brother of the defendant. He is the owner of a rehabilitation clinic and is married. He came to Canada in 1986 and is a Canadian citizen. He stated that he went to Marlowe's with some friends at about 9:00 p.m. on the 23rd of March, 2012. He stated that he had dinner and a glass of wine with his dinner. He stated that his brother joined him with a friend at around 11:00 p.m. He stated that they ordered some food and he ordered them a 1/2 pint of beer. He stated that his brother and his friend went up to the dance floor. He described the dance floor area as being very loud and dark and the area where they were sitting was not as loud.

[64] He stated that about 5 minutes after they left, he felt a touch on his shoulder and his brother was walking past him with a man leading him by the arm. The man was wearing a black jacket and black trousers. The witness got up and followed and was able to get about 6 or 7 feet away. He was concerned but did not think his brother was in imminent danger. His way was blocked. He saw that that the man was talking to his brother. He saw the man push his brother down onto a bench with two arms and when his brother tried to get up, the man held him and turned him around and his brother hit his head on a wooden plank above the padded area of the seat (Exhibit 4 "C").

[65] The witness then saw his brother use his head to hit the mouth area of the man and then the man pushed his brother and got on top of him. The witness attempted to go forward to help his brother, but the person in front unzipped his coat and said that they were police officers. The witness stated that this was the first time that he realized that they were the police and he shouted in his loudest voice to his brother to stop as they were police officers. He saw the man throw his brother onto his left side and they swore at him and arrested him. He stated that they took him outside and he followed and there were a lot of police there, including a helicopter. He stated that he went to the police station and waited for about three hours and then was able to take his brother home.

[66] The witness was extensively cross-examined by the Crown who suggested time and time again that the events did not happen as he described and that his brother was not being held by the arm as he walked by. The witness repeatedly denied those suggestions. The witness admitted that he had spoken to his brother about the incident after the arrest.

Eldar Israfilov

[67] ...is a nurse and is also a student at York University. He is a friend of the defendant and works at the rehabilitation clinic owned by the witness Fidor Guliyev.

[68] He states that he went with Fidor and three others at 9:00 p.m. to have dinner at Marlowe's Restaurant. He prepared a sketch (Exhibit 8) which shows the location of where he was sitting and its relation to the area where the altercation happened.

[69] He states that the defendant and his friend came to the restaurant at around 11:00 p.m. The defendant was sitting beside him. He stated that the defendant had a half-pint of beer and ate some food. He stated that about 30 to 40 minutes later, the defendant and his friend left the table and he believes that they went to the dance floor. He saw the defendant walking past the table in the aisle and there was a man dressed in black "directing him" by holding his left arm. The man was slightly behind the defendant as it was a narrow aisle.

[70] The witness looked up and then looked to his left where they stopped. He could see that the defendant was talking to the man but could not hear him. He then saw the defendant being pushed to the seat of the bench by the man and the man turning him and pushing his head against the wooden top area of the booth. He then saw the defendant hit his head against the head of the man. The witness got up and tried to move forward to assist his friend and as he got closer (he states there was a crowd of people) he heard Fidor shout "They are cops".

[71] At that point, he saw that another man in black was helping the first man and they were taking Elnur out of the bar. The witness then left the bar afterwards. This witness again was extensively cross-examined. He also said that he had some discussions about the events but he stated that other than court dates, the only real discussion with the defendant about what had happened occurred as they left the police station at 5:00 a.m. the next morning.

Legal Issues

[72] The powers of the police officer that evening, would have been the common law powers to conduct any criminal investigation and specifically the powers to investigate and arrest under the Liquor Licence Act R.S.O. 1990 Chap. L.19.

[73] I set out the relevant provisions of the Act as follows:

Rules, persons under 19

30. (1) No person shall knowingly sell or supply liquor to a person under nineteen years of age. R.S.O. 1990, c. L.19, s. 30 (1).

Idem

(2) No person shall sell or supply liquor to a person who appears to be under nineteen years of age. R.S.O. 1990, c. L.19, s. 30 (2).

Permitting possession or consumption

(3) No licensee or employee or agent of a licensee shall knowingly permit a person under nineteen years of age to have or consume liquor in the licensee's licensed premises. R.S.O. 1990, c. L.19, s. 30 (3).

Idem

(4) No licensee or employee or agent of a licensee shall permit a person who appears to be under nineteen years of age to have or consume liquor in the licensee's licensed premises. R.S.O. 1990, c. L.19, s. 30 (4).

Entering premises

(10) No person under nineteen years of age shall enter or remain on premises in which the sale of liquor is authorized if the person knows that a condition of the licence or permit for the premises prohibits the entry of persons under nineteen years of age.

Improper documentation

(12) No person shall present as evidence of his or her age any documentation other than documentation that was lawfully issued to him or her.

Intoxication

31.(4) No person shall be in an intoxicated condition,

(a) in a place to which the general public is invited or permitted access; or

(b) in any part of a residence that is used in common by persons occupying more than one dwelling in the residence. R.S.O. 1990, c. L.19, s. 31 (4).

Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person

Persons designated by Registrar

43. (1) The Registrar may designate persons employed by the Alcohol and Gaming Commission of Ontario as persons who may carry out inspections for the purpose of determining whether there is compliance with this Act and the regulations.

Police officers

(13) Every police officer has the powers set out in clauses (1) (a), (b) and (c) and subsections (2) to (12) apply with necessary modifications to police officers as if they were persons designated under subsection 43 (1).

Arrest without warrant

48. If a police officer finds a person apparently in contravention of this Act or apparently in contravention of a prescribed provision of the regulations and the person refuses to give his or her name and address or there are reasonable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant.

[74] Based on the above, the police officer had the right to investigate any occupant of the premises for intoxication and age. That would include asking any questions about these issues.

[75] The powers to arrest in Sec 31 (5) allows an officer to arrest a person in an intoxicated condition "if in the opinion of the police officer, to do so is necessary for the safety of any person".

[76] The powers to arrest in Sec 48, allow an officer to arrest anyone who is in contravention of the act and "refuses to give his name and address".

[77] I find that in this case, there is no evidence that the officer was (until after the "head butt") attempting to arrest the defendant on any of the above sections of the Liquor Licence Act. Indeed there was no evidence that the officer had formed any opinion as to safety issues.

[78] The defendant was under no obligation to provide any item of identification to the officer. I find that the officer was acting lawfully in approaching the defendant and asking for his identification. While the defendant was under no obligation to respond, that in and of itself was of course no justification for the defendant to assault the police officer.

[79] I find that the Liquor Inspector (Amanda Farrell) asked the defendant to come to another part of the premises so she could ask him some questions concerning his sobriety. I do not find that this was an unlawful request. The officer did not, in my opinion have the right to put his hand on the defendant and escort him to another part of the premise and most importantly, certainly would not have the right to physically push him down onto the seat. As it was the pushing down on to the seat and the other following actions (as alleged by the defendant) that resulted in the "head butt", it is the evidence supporting or denying those allegations, that I must consider.

[80] With regard to the charge of threatening, I believe that it was a separate act taken after the arrest. Even if I find that the arrest was unlawful, I believe that there is a sufficient separation in time, so that if I am convinced beyond a reasonable doubt that the words were uttered, then I could find the defendant guilty.

Analysis

[81] The burden remains upon the Crown at all times to prove the essential elements of both offences beyond a reasonable doubt. In addition, as the defendant has offered evidence, which if accepted would provide a defence to both charges I must apply the case of R. v. W.D. which holds that if I believe the defence evidence, I must acquit the defendant, even if I do not accept the evidence I must decide whether it leaves me with a reasonable doubt. Even if it does not leave me with a doubt, I must decide whether the evidence of the Crown is capable of convincing me beyond a reasonable doubt of the guilt of the defendant.

Defence Evidence

[82] I have heard the evidence of the defendant. He states that before his brother shouted out (after the altercation started) that he was fighting with a policeman, he was not aware that Officer Baygan was indeed a policeman. He also testified that his rising up off the bench and striking Officer Baygan's mouth area with his forehead, was not an intention to "head butt" Officer Baygan but was an attempt to get away from the person who was holding him down. He also denies uttering any words of threat to Officer Baygan.

[83] Of some interest to me is the evidence of intoxication. Only Officer Baygan (other than the manner of dancing and the look in the eyes) makes any real allegations that the defendant was intoxicated. The bulk of his observations are not in his notes. I also note that neither of the officers make any observations of intoxication after the scuffle in the bar. The defendant was obviously in police custody and in their presence for a long time after these events. Not a word about any level of intoxication. I contrast this with the evidence of the defendant himself and the persons with him, who indicate no evidence of intoxication.

[84] The witness was vigorously cross-examined by the Crown. He was not seriously shaken in his story. The defence called three other witnesses who observed some or all of the events that evening. All of these witnesses were either friends or relatives of the defendant. All had spoken about the events with the defendant. Do these facts in and of themselves give me pause about their evidence? Quite frankly, I would have been surprised if they had not discussed, in some fashion, the events of that evening. Watching a scene of violence in a public place, especially one that involves someone you know is clearly a noteworthy (and perhaps traumatic event) and it would be impossible not to have some discussion. In addition, I do not discount the ties of kinship and friendship that would lead someone to be supportive, and perhaps make some changes to evidence. The question is whether such ties are such that it would lead to some serious corroboration and conspiracy to lie to the court. All the witness were vigorously cross-examined by the Crown. All stood by their stories and were not shaken in any significant details. While they were not in a position to observe all of the events, I believe they tried to be accurate to what they were able to see. I was particularly impressed with the witness Eldar Israfilov. He had the least contact with the defendant after the events. He has a professional occupation (a nurse) and comported himself as a professional and attempted to be clear and accurate with his testimony.

Crown Evidence

[85] The charge of assault a police officer causing bodily harm is made out if I accept the evidence of the police officer Baygan that he clearly identified himself as a police officer and was intentionally head butted by the defendant as he was speaking to him in the restaurant. The officer states that he was asking him for his identification and the defendant rose up from where he was sitting and his head came into contact with the policeman's mouth. I believe that as long as the officer was restricting himself to questioning the defendant he was acting within his duty. The officer did not testify that he was in any way attempting to arrest the defendant.

[86] The injury caused to the officer was pain to his mouth and teeth and while he lost no teeth and did not require dental surgery, he needed splints behind several of his teeth stabilize them for a period of time before it could be established that none of the teeth were compromised. I believe that makes the injury more than trifling and would constitute bodily harm.

[87] With regard to the other injuries to the officer, I find that they were not such as to constitute bodily harm.

[88] With regard to the issue of whether the defendant knew that Officer Baygan was a police officer, I find that the officer never identified himself as such, but he was wearing a badge around his neck. The question still arise as to his clothing and specifically if he was wearing a jacket as he admits he was. Was any of his police identification visible outside of his jacket? I have noted my concern that in his evidence in chief the officer (when given the opportunity to do so) did not state that he was wearing a dark jacket over his vest. I also note the evidence of Evan McInnis that the officers "did not display their identification at the start of the investigation", and it is clear that he never saw their identification at any time.

[89] It was never explored by the Crown as to why a police officer in doing inspections under the Liquor Licence Act would do so by concealing their identity as policemen. Surely in carrying out their duties in a dark and loud environment with the intended purpose of confronting persons they believe are intoxicated, they should want their status as officers to be undisputed.

[90] In this case, their wish to be in some way undercover has left them open to the real suggestion that their status as police officers was not at all apparent. I accept that Amanda Farrell probably did say words to the effect to the defendant that she was an inspector and probably took out her badge. I also accept that it was unlikely in the circumstances of that scene, that the defendant heard her and I don't see how a cursory flash of the badge brought out from a purse in a dark and noisy scene, would impart the necessary information to the defendant to lead him to understand what Amanda Farrell and her confrere wanted with him. (As an aside, the badges of the liquor inspectors are not at all revealing to the casual observer. The badge uses an acronym and nowhere on the badge does it say "Liquor" or "Inspector").

[91] I have also noted that Officer Nickolos Dimitrakopoulos specifically stated out loud to the gathering people (when the altercation with the defendant had already escalated into violence), that "Hey guys, we are police". If it was obvious to any casual observer that they were clearly identified as police, why would any such words be necessary?

[92] Officer Baygan, Amanda Farrell and Isabelle Dion describe the defendant as holding up his hands in a gesture of being handcuffed and telling the officer in so many words to "arrest him". Neither McInnis nor Dimitrakopoulos confirm that evidence. Such a gesture would suggest that the defendant knew he was dealing with a police officer. With the discrepancies in the evidence, I cannot make such a finding. I also note that McInnis seems to concur with the defence witnesses that it was the officer who was doing the loud talking.

[93] With regard to the evidence of the police officers the major discrepancies are that officer Dimitrakopoulos mentions two persons on the dance floor together exhibiting exactly the same symptoms, whereas officer Baygan only mentions one. I also note that Dimitrakopoulos mentions nothing of any observations that caused him to think that the defendant was "underage".

[94] The descriptions of what was said is also different but much of that could be attributed to the fact that for most of the altercation officer Dimitrakopoulos was facing away from the scene. However, I note that Baygan described the defendant as saying "Fuck you, no fuck you", in a loud voice to Inspector Farrell. Officer Baygan describes him as shouting and screaming. I think that officer Dimitrakopoulos should have been able to hear that.

[95] With regard to the evidence of the liquor inspectors, they do not coincide with each other and all the other crown evidence in all respects. For example, Dion says she saw 3 people dancing together and Amanda Farrell only saw the defendant. (for that matter officer Dimitrakopoulos saw a second person dancing). They differ in descriptions of the words shouted out, with Amanda Farrell not speaking of anyone (and certainly not her) saying "Nico, get over here" and words from other persons saying "Stop, they are cops".

[96] I am prepared to attribute a lot of these discrepancies to the fact that while they were close to one another, events moved very quickly and there were not always looking in the same direction. Dimitrakopoulos for example appeared to have been facing away and towards the other people most of the time.

[97] I must note that none of the Crown witnesses, other than Officer Baygan describes the specific action of the defendant sitting down and even the officer describes the action as "appearing to sit down". I believe that this omission is a serious blow to the strength of the Crown's case. By not seeing how the defendant came to be sitting down, the witnesses cannot contradict the statements of the defendant (and the three other defence witnesses) that he was forcibly placed there by Officer Baygan. I also note that Amanda Farrell and Isabelle Dion have the defendant placed on the seat when he is shouting and putting his hands together. Officer Baygan describes these actions as occurring as the defendant is standing.

Did the officer use any physical force upon the defendant before the "head butt"?

[98] It is an essential element of the Crown's case that the officer was simply doing his duty and he had every right to question the defendant whom he suspected of being impaired in a public place. It is also an essential element that the officer was not using any physical coercion on the defendant as he was not under arrest for anything. I also note that the defendant was under no legal compulsion to identify himself with identification. If the only reason to confront the defendant on the dance floor was to check his sobriety (as stated by Amanda Farrell and Isabelle Dion) then what was the purpose of taking him away from the dance floor and insisting that he produce identification?

[99] It is an offence under the Liquor Licence Act to drink alcohol when under a certain age. It would appear that it is the responsibility of the operators of the licensed establishment to ascertain those facts on a person's entry to the premises. Most importantly I believe that if the officer forcibly pushed the defendant down on the seat, then that would constitute an assault and the defendant would be permitted to resist. With regard to the degree of the resistance, I believe that under both the previous and new sections of the code dealing with self-defence, the defendant in lunging upwards (and striking the officer's jaw with his forehead) was not unreasonable in the circumstances. While the words 'head butt" were used (mainly by the Crown) throughout these proceedings the classic head butt is a forehead to forehead encounter. By no stretch of the imagination do I accept any evidence which described the action as a "cocking back of the head". The defendant rose up and while he knew he was going to strike the officer, it could have been more in the nature of a reflexive action to the assault being carried out upon him.

[100] I have noted those parts of the officer's evidence that I have concerns about. Upon balance, after review of the defendant's evidence and upon review of the defence witnesses, while I have concerns with regard to their previous discussions and the natural instinct of persons to protect their friends and family, I cannot say that their evidence does not leave me with a reasonable doubt. If the defendant did not realize that the person he was dealing with was a police officer, then his actions are not without logic. The burden is on the Crown to prove beyond a reasonable doubt that the defendant was aware that he was dealing with a police officer. I do not believe that the Crown has met that burden.

[101] In addition, taking into account all of the evidence I cannot be satisfied beyond a reasonable doubt that the officer did not push the defendant down in some fashion. I must and do resolve these doubts in favour of the defendant with regard to the charge of assault a police officer and cause bodily harm. I am fully aware that several Crown witnesses have given evidence largely supportive of the police officer in the bar. Even so, the discrepancies I have noted and the weight of the defence evidence leaves me with a reasonable doubt. I find the defendant not guilty of the charge of assault police causing bodily harm.

[102] With regard to the allegation of the threatening, I must also assess that evidence in light of R. v. W.D.. As I have largely accepted the defence evidence on the issue of the actions in the bar, I feel that I am left in the same doubt with regard to the actions of the defendant outside the bar. It was clear that when the defendant heard his brother yell out that it was police, he stopped any resistance. What would prompt him to continue resistance after the fact, and that would include hurling threats at the officer.

[103] There are some discrepancies in the officer's evidence about the scene outside the bar. Dimitrakopoulos speaks of people speaking in Farsi. No one else mentions that. I find that I am left with a reasonable doubt as to whether the defendant uttered any such words to the police officers. I also acquit the defendant of the charge of threatening the police officer.

Signed: Justice P.N. Bourque

Released: February 26, 2014