Court File and Parties

Court File No.: Old City Hall

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Cosmo James

Before: Justice Howard Borenstein

Heard on: January 20 & 21, 2015

Reasons for Judgment released: March 4, 2015

Counsel:

• Ms. D. Silva for the Crown
• Ms. L. Riva for the accused Cosmo James

BORENSTEIN J.:

Charges and Overview

[1] Cosmo James is charged with two counts of resisting a peace officer in the execution of his duties and one count of assaulting a peace officer.

[2] In brief, Mr. James was in custody in the second floor holding cells at the College Park courthouse. He was in the cell touching or playing with the sprinkler head located on the ceiling of his cell. If he damaged or set off the sprinkler, it would cause a fire alarm, flooding in the cells and require an evacuation.

[3] Court officer Prempeh told James repeatedly to stop but he would not. Eventually, Officer Prempeh and other court officers entered the cell to stop him. James ignored their direction. They allegedly told him to put his hands behind his back to be handcuffed but he would not cooperate. He was taken to the ground by a number of officers and would not allow himself to be handcuffed. The officers placed leg irons on James and handcuffed him behind his back. He is alleged to have bitten the hand of Court Officer Mason as the officer was trying to grab the accused's hand which was under his face as he lay on the floor.

[4] When all was said and done, the accused had a swollen eye and was taken to the hospital. There were no visible injuries to Officer Mason's hand when a photograph was taken shortly thereafter.

[5] Court Officers Prempeh, MacDonald and Mason testified. An agreed statement of facts and photographs of Officer Mason's hand and the accused's face were introduced. No defence was called.

[6] The Crown submits that the bite on Officer Mason's hand makes out the assault peace officer charge. The Crown further submits that the resist peace officer counts are made out by the accused's failure to stop touching the sprinkler when repeatedly directed to do so, by failing to submit to being handcuffed and by biting the officer.

[7] The defence has launched a multi-pronged attack on the Crown's case submitting that the officers' evidence was incredible and unreliable and cannot support a finding of guilt. Further, the defence submits that the officers used excessive force and were therefore not in the lawful execution of their duties. Finally, the defence submits that the failure to submit to the officers' direction does not amount to the criminal offence of resist lawful authority.

[8] I will briefly review the evidence of the various court officers.

Officer Prempeh

[9] Officer Prempeh testified that court officers are responsible for the movement and safety of the prisoners at the courthouse.

[10] At 11:35 a.m., the accused was alone in a cell. Officer Prempeh saw the accused reach up and place his fingers in the head of the sprinkler head. If the sprinkler were activated or damaged, it would set off an alarm, cause flooding and result in the evacuation of the cells. Officer Prempeh told the accused three times to stop but he would not. The accused replied that he was bored.

[11] Officer Prempeh called for assistance and court officers Olan, MacDonald and Mason attended. When they arrived, Officer Prempeh opened the cell door. The four entered the cell together. The accused was still reaching up to the sprinkler and all the officers were in a position to see that. Officer Prempeh again told the accused to stop but he did not listen. The accused was told to put his hands behind his back but did not comply. One officer grabbed one arm, another grabbed the other, and two other officers grabbed the accused's legs and took him to the ground face down. The accused would not allow himself to be handcuffed and placed his hands under his face. Leg irons were obtained and placed on his legs. He was then handcuffed behind his back. Officer Prempeh was not focused on the other officers and could not say who was exactly where. The accused was then lifted and placed on a concrete bench in the cell.

[12] During the process of taking the accused to the floor, Officer Mason exclaimed that the accused bit his hand. In Officer Prempeh's notes, however, he wrote that the accused "attempted to bite" Officer Mason. When asked why he wrote that the accused attempted to bite Officer Mason, Prempeh replied that the accused attempted to bite Mason and did bite Mason.

[13] Officer Prempeh was shown a photograph taken of the accused following the incident which showed a swollen eye. He could not explain how the accused might have received that injury.

Officer MacDonald

[14] Court Officer MacDonald testified that, at 11:35 a.m., he was 15 feet away from the accused's cell when he heard Officer Prempeh tell the accused to stop hitting the sprinkler. Officers Prempeh and Mason then entered the cell and Officer Mason repeated the direction.

[15] Officer MacDonald then entered the cell. He never saw the accused reach for the sprinkler.

[16] Prempeh and Mason were trying to handcuff the accused who was resisting by waving his arms. Mason and Prempeh alone took the accused to the ground but the accused would not allow himself to be handcuffed. MacDonald intervened and placed his hand on the accused's back and the accused was then handcuffed. Officer Olan then entered the cell and placed leg irons on the accused.

[17] MacDonald did not see any injuries to the accused. He believed Mason was bitten but did not see the bite or any injury nor did he hear Mason say he was bitten during the cell encounter. He did not recall the accused being placed on a concrete bench.

[18] In cross examination, MacDonald conceded that his notes indicated that this incident occurred at 11:30 not 11:35. When asked why he testified that it occurred at 11:35, which was the same time Officer Prempeh had testified to earlier, he could offer no explanation.

Officer Mason

[19] Officer Chris Mason testified that, at 11:35 a.m., Prempeh asked the accused to stop playing with the sprinkler system. Prempeh opened the cell door and Officer Mason saw the accused touching the sprinkler head. Officer Prempeh asked the accused to stop and sit down but the accused ignored him. Then, the accused attacked Officer Prempeh by grabbing him around his waist. Officer Mason was the only one to describe an attack of any sort. Officer Mason testified that, as a result of this attack upon Officer Prempeh, he and Officer MacDonald intervened and took the accused to the floor. There had been no attempt to handcuff the accused before he was taken to the floor.

[20] Once on the floor, they tried to handcuff the accused but he resisted and placed his hands under his face which was face down on the floor. Officer Mason reached under the accused's face to grab his hands and felt a bite. He quickly moved his hands. The accused was then handcuffed and Mason left the room to see if his skin was broken. It was not. There was some redness to his hand but that was gone by the time the police arrived and photographed Mason's hands.

[21] That was the evidence called.

Submissions

[22] The Crown acknowledges that there are differences in the accounts given by the three court officers but submits that those discrepancies should not undermine their credibility or reliability. The Crown submits that the bite constitutes the assault. With respect to the offences of resisting a peace officer in the execution of his duty, the Crown submits that there are three instances where this offence is made out: first, by the accused's failure to stop touching the sprinkler when directed; second, by failing to submit to being handcuffed behind his back; and third, by biting Officer Mason.

[23] The defence submits the differences among the officers undermine their credibility and reliability. Further, the fact that none could account for the injury to the accused ought to cast doubt on their evidence. The defence further submits that the officers used excessive force in dealing with the accused and were therefore no longer acting in the course of their lawful duties when any alleged resistance occurred. Finally, even if they were acting in the course of their lawful duties, the accused's failure to comply with their demands is not a criminal offence.

Findings

Factual Issues

[24] Before turning to the legal issues, let me turn to the factual issues.

[25] There are obviously differences between the officers' evidence as to what occurred in the cell. Some are minor such as who entered the cell first or who stood where. Some are more significant and have an impact on the reliability of their evidence. For example, Officer Prempeh testified that Officer Mason exclaimed that he was bitten several times as it occurred and that all four officers were present. Officer MacDonald was present when the accused was on the floor and heard no such utterance.

[26] There are inconsistencies as to how many officers participated in bringing the accused to the floor and there are inconsistencies as to whether there was an attempt to handcuff him while he was still standing before he was taken to the floor.

[27] Officer Prempeh testified that all four brought James down and that his legs were shackled before his hands. He was contradicted by both Officers Mason and MacDonald and, further, Officers Mason and MacDonald contradict each other as to who brought the accused to the ground. Further, Officer Mason was the only officer to testify that the accused attacked Officer Prempeh. No explanation was offered for how the accused was injured. These differences and issues cause some concern.

The Assault

[28] Bearing in mind these concerns, I will begin with the assault charge.

[29] One thing is certain, events occurred very quickly when the officers entered the cell, particularly when the accused was put to the ground. The officers themselves were inconsistent on whether there was an attempt to handcuff him before putting him to the ground, how many officers were present, whether the accused assaulted Prempeh and how many officers and who put the accused to the ground. The accused was face down on the concrete with his hands under his face when Officer Mason put his hands under the accused's head and attempted to pull his hands. That was when he felt a bite and immediately pulled his hand away. Officer Prempeh testified that he heard Mason exclaim that he was bitten however his notes about the bite are inconsistent. If he was present and heard that, he would not have written that the accused attempted to bite Officer Mason. His explanation for the discrepancy between his notes and his evidence is unsatisfactory.

[30] Officer MacDonald was present at the time and heard and saw nothing at the time from Officer Mason about being bitten.

[31] Officer Mason testified that his skin was not broken but was a little red which was gone by the time the police photographed his hand.

[32] In view of these discrepancies about the bite, and the inconsistency in Officer Prempeh's notes, and the absence of any photographic evidence, I have a reasonable doubt about whether the accused intentionally or otherwise assaulted Officer Mason and he will be found not guilty of that charge.

Resist Peace Officer

[33] Turning to the two counts of resisting a peace officer, and bearing in mind the caveats I mentioned earlier, I am satisfied of the following facts:

1. The accused was touching the sprinkler head in the cells;

2. Officer Prempeh told him repeatedly to stop as he was justifiably concerned about the potential consequences;

3. The accused would not stop;

4. Officers Prempeh, Mason and then MacDonald entered the cells to stop the accused from potentially setting off the sprinkler;

5. In doing so, they were in the execution of their lawful duties as officers;

6. Events after their entry occurred very quickly;

7. The officers told the accused to stop but he ignored their direction;

[34] There are conflicts in the evidence at this point, and while some or all may be understandable, they nonetheless render the evidence of what occurred thereafter unreliable.

[35] All that I can be satisfied of is that the accused was taken to the ground quickly and that he did not immediately cooperate with being handcuffed.

[36] The reason I am not satisfied about the events that occurred once he was placed on the floor is due to the contradictions in the evidence between the officers.

[37] I am not satisfied that there was an attempt to handcuff the accused while he was still standing in view of the conflict in the evidence, in particular, Officer Mason's evidence that there was no such attempt before the accused was taken to the ground.

[38] There is a conflict in the evidence as to whether two or four officers brought the accused to ground.

[39] Officer Prempeh said all four dealt with him. Officer Mason said it was he and Officer MacDonald. Officer MacDonald said it was Officers Mason and Prempeh.

[40] Officer Mason testified that the accused attacked Officer Prempeh before he was taken to the floor. No one else testified to that and Officer Prempeh would have been in a position to see that and Officer MacDonald, likely as well. I am not satisfied that the accused attacked Officer Prempeh.

[41] Once down, there is a conflict about whether the accused's legs or hands were restrained first and whether he was placed on the concrete bench though these discrepancies are not particularly material with respect to the essential elements in this case. Those are peripheral and witnesses could easily be mistaken.

Once down on the ground, the accused was restrained very quickly with three to four officers handling him. For the reasons already given, I am not satisfied that the accused bit Officer Mason.

[42] There was a very brief delay before the accused was handcuffed on the ground as he did not immediately submit to being handcuffed. As a result, the officers used some force. There were three or four officers on him and he was lying on his stomach. He was injured and taken to the hospital at his request. They were not. None of the officers could say how the accused was injured although it is likely during the take down yet none could give any explanation.

[43] With those findings, I turn now to the submissions on the resist lawful authority counts.

[44] The Crown advanced three bases for this offence; (1) the accused's failure to desist touching the sprinkler when directed to do so, (2) his failure to submit to being handcuffed; and (3) biting Officer Mason.

[45] For reasons already given, I have a doubt about the failure to submit to being handcuffed while standing and the bite. Similarly, any failure to submit to being handcuffed that allegedly occurred on the ground occurred within seconds of being taken to the ground with three or four officers on his back and during which he was likely injured. I am not satisfied he would have had time to form any intention to commit an offence in that time.

[46] Accordingly, the only potential factual basis for a finding of guilt for this offence in this case is that the accused did not desist touching the sprinkler head when told to do so repeatedly by Officer Prempeh.

Legal Analysis

[47] The relevant part of section 129 of the Criminal Code provides that:

Everyone who resists or wilfully obstructs a peace officer in the execution of his duty is guilty of a hybrid offence.

[48] The officers were acting lawfully when they told James to stop and entered his cell to stop him. His failure to stop entitled the officers to use reasonable force to stop him.

[49] Section 25 of the Criminal Code provides that a peace officer, acting on reasonable grounds, is justified in using as much force as is necessary in the circumstances.

[50] The question remains however whether the accused's failure to comply with the officer's direction to stop touching the sprinkler, apart from justifying the use of reasonable force, also amounts to a criminal offence.

[51] In R. v. Glowach, 2011 BCSC 241, the British Columbia Superior Court acting as a summary conviction appeal court interpreted that section and held that the words resist or wilfully obstruct are interchangeable and that resistance does not require a show or use of force.

[52] I have also considered R. v. Lavin, where a police officer pulled over Lavin and saw him conceal an illegal radar detector in his pocket. The officer had grounds to arrest and search Lavin and demanded that he hand over the radar detector. Lavin refused and was convicted of resisting a peace officer. In overturning the conviction, a majority of the Quebec Court of Appeal held:

[T]he constable had the right to arrest [and] if necessary to search, but refusal did not amount to obstruction.

[53] It seems to me that wilful obstruction requires either some positive act, such as concealment of evidence, or an omission to do something which one is legally obliged to do, and that neither requirement is fulfilled in this case.

[54] The concern permeating this charge in this case is the potentially extending the scope of criminal liability by criminalizing a mere failure to listen to or comply with a direction by a peace officer acting in the lawful execution of his or her duty. However, such abstract questions cannot be divorced from their factual context.

[55] In this case, not only were the officers acting in the lawful execution of their duties when they directed James to stop but further, James had to stop. There was a danger of flooding and an evacuation of the cells if he set off the sprinkler. He had no right to do this and the officers were acting in the course of their duties in directing him to stop. This was not an arbitrary direction. Quite the opposite. It is desirable that officers resort to words and persuasion if possible before use of force to try to de-escalate matters. James' resistance in this context creates greater danger for escalation.

[56] In that context, James' failure to follow the direction of the officers amounted to the offence of resisting a peace officer in the lawful execution of his duties and he will be found guilty of count one involving officer Prempeh and not guilty of counts two and three.

Released: March 4, 2015

Signed: Justice H. Borenstein