ONTARIO COURT OF JUSTICE

Old City Hall - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NATHANIEL WIELER

Counsel:

• J. Cruess for the Crown
• D. Midanik for the Defendant

Heard: July 29 and 30 and December 9, 10 and 12, 2014 and February 11, 2015

REASONS FOR JUDGEMENT

MELVYN GREEN, J.:

A. INTRODUCTION

[1] The defendant, Nathaniel Wieler, failed to catch the last GO commuter train as it pulled out of Union Station in downtown Toronto just after midnight on June 2, 2013. His efforts to board the train attracted the attention of two GO Transit officers, Csts. Jessett and Edwards. The defendant was less than fully co-operative with Jessett's inquiries and tried to leave the platform. This led, in short order, to a pursuit, a scuffle, one officer (Edwards) breaking his ankle, a further chase and scuffle and, finally, the defendant being pepper-sprayed by a third officer, Cst. McClure, and, ultimately, handcuffed. In the end, the defendant appeared before me charged with mischief, escape from lawful custody, assault causing bodily harm (to Edwards), obstructing a peace officer (McClure) in the execution of his duty of making a lawful arrest, and two counts of assaulting a peace officer (Jessett and Edwards) with intent to resist lawful arrest.

[2] The mischief charge was dismissed at the mid-trial invitation of the Crown. Thereafter, Crown counsel, by way of particulars, specified that the "lawful arrest" component of the "obstruct" and both "resist" charges was "for mischief (or a lesser included offence)". The lesser-included offences contemplated by the Crown are both provincial infractions: trespass and a violation of a bylaw governing GO Transit. As played out at trial, the defendant's effort to pry open the train doors constitutes the alleged misconduct on which the transit officers relied to ground his arrest. I am not certain nor do I consider it necessary to determine whether either of the contemplated provincial offences is "included" in the criminal offence of mischief. In my view, which I expand in due course, the lawfulness of an arrest is measured against the offence for which the arrest is purportedly effected, not some other offence that may have occurred or that an arresting officer may have silently contemplated.

[3] The issues in this case compel a near-granular review of the evidence. Five officers, GO Transit and city police, testified at the behest of the Crown. The defence called a further GO Transit officer. The defendant did not testify. The testimonial accounts were supplemented by digital video recordings (DVRs) secured by two wide-angled security cameras positioned above the platform level at Union Station. The video images are sometimes difficult to discern. There is no audio recording.

[4] As always, the burden of proof rests on the Crown to establish the essential elements of each offence on a standard of proof beyond reasonable doubt. Failure to acquit this burden necessarily results in the defendant's acquittal of each offence, if any, with which I am left with a reasonable doubt.

B. EVIDENCE

(a) Introduction

[5] The last westbound GO train, the 939, left Union Station at 12:46 am on June 2, 2013. It was about three minutes behind schedule. It departed from the number 5, or south, side of the 4/5 platform. There was no train on the number 4 side of the platform, about twenty feet across the cement floor that forms the platform between the track beds. Although the defendant did not testify, it is the parties' shared understanding that he was trying to board the last train home as it was about to pull out of the station. Conflicting evidence as to whether the defendant's efforts to open the doors to a coach had any impact on the train's progress led to dismissal of the mischief count with which he was originally charged.

[6] There were two GO Transit officers on the platform at the time the 939 pulled out: Clayton Jessett and Terry Edwards. Each had been employed by GO transit for about two years at the time of the incident and each was routinely assigned to Union Station. Both were in uniform, including epaulets, a hat, a bulletproof vest and, but for a firearm, a fully equipped duty belt.

[7] GO Transit officers are "special constables" under s. 53 of the Police Services Act, R.S.O. 1990, Chap. P.15, which confers on them the powers of a police officer, at least with respect to the enforcement on GO Transit property of the Criminal Code and relevant provincial legislation. The latter includes the Metrolinx Act 2006, S.O. 2006, Chap. 16, which governs the interregional public transit system (generally known as the "GO system") that links Toronto with its surrounding regions. GO Transit officers' statutory powers include, in appropriate circumstances, the power to arrest, charge and release persons they reasonably believe have committed an offence within the compass of their enforcement authority.

[8] Jessett confronted the defendant after observing him at the doors to one of the train carriages. The defendant eluded his inquiries, leading to a chase along the platform. Jessett and the defendant ended up on the rail bed, where Edwards joined them. The defendant resisted the officers' efforts to restrain him, resulting in a track-level physical altercation involving all three. Edwards suffered a severe fracture of his left ankle in the course of this fracas. A third officer, Jamie McClure, attended in response to an urgent dispatch. He and Jessett briefly chased the defendant along the track bed. They eventually subdued him after McClure sprayed him with pepper foam.

[9] The Crown's position is that the officers were acting in execution of their duties and that they had a lawful basis to arrest the defendant. Accordingly, the defendant resisted and assaulted the officers in the course of evading their lawful efforts to effect his arrest, including pushing Edwards so as to cause him to fall and fracture his ankle.

[10] Given the sudden nature of the events and their brevity and volatility, it is hardly surprising that the accounts of the three narrative witnesses are less than entirely consistent. However, portions of the officers' evidence are also internally inconsistent, inconsistent with their prior documentation of the incident, and inconsistent with the video record admitted at this trial. The process by which at least some of the officers were interviewed by members of the Toronto Police Service (TPS), their repeated exposure to DVRs of the transaction and the opportunity for collusion are also advanced by the defence as concerns respecting the independence and integrity of the witnesses' testimonial recall. These considerations, particularly the inconsistencies, are matters of potential significance given that the officers' honesty and reliability are of central importance in determining whether they acted within the scope of their authority; whether they uttered words of arrest; and, if so, whether there was a lawful basis for such arrest and, if not, whether the defendant's physical resistance went beyond a proportionate response to the officers' efforts to restrain him. The causal mechanics of Edwards' injury is also of factual concern. Put simply, an assessment of the investigating officers' credibility is critical to a proper disposition of the charges.

[11] As noted, the officers' testimony is here supplemented by a visual record of the events as recorded by video cameras situated above the platforms. Both cameras face west. The one above platform number 3 is focused on that platform, a portion of the facing platform, number 4 (on which the first recorded portion of the incident transpired) and the track bed between these two platforms. The second camera, located above platform 4/5, is directed to platform 4 and captures the descent to and struggles on the contiguous track bed. The running "clocks" on each video begin at 0.00 seconds; they are closely but not entirely coordinated with each other. However, the times displayed on the two videos do not correspond with the actual time of the events.

[12] Where clear, the DVRs afford the most reliable record of the incident. Even where less than pristine (as, for example, during the final apprehension of the defendant), the DVRs still allow for an accurate sequencing and timeline of the events. Jessett, Edwards and McClure all viewed a video record of the occurrence on several occasions before testifying. The DVR was played as each officer testified and questions, both in direct and cross-examination, were put to them respecting the contents of the videos. In response, each officer qualified or amended, sometimes materially, his previous testimony.

[13] Although no evidence was directly called on the point, the defendant presents as a man of lean build in his early 20s.

(b) The Events on the Platform

(i) Jessett's Platform-Level Account

[14] Jessett was on the south side of the platform waiting for the 939 to depart. The platform was completely empty until a young man – the defendant – appeared, ran to a carriage about fifty feet from Jessett and tried to open its doors. According to Jessett, the defendant sufficiently interfered with the closed doors to engage a safety feature that caused the train, which had just begun to depart, to lurch forward about a foot and then stop. The train resumed its forward progress one to two minutes later. It was "possible", said Jessett, that the train had not yet begun to move when the defendant first reached the carriage doors.

[15] Given his location, Jessett could not actually see whether the coach doors had opened. However, the defendant's position (arms extended towards the doors in the middle of a train brought to a standstill), combined with Jessett's experience with and understanding of how the safety mechanism was engaged, led him to conclude that the defendant had pried the doors open and was thus responsible for the train's abrupt halt. This, for Jessett, was a "major safety issue". He briskly walked toward the defendant who stepped back when Jessett reached him at the carriage doors. The train was still stationary. The doors were closed.

[16] Three other persons soon appeared on the platform: Edwards, Jessett's partner, approached Jessett from behind; and a man and a woman who appeared to know the defendant emerged from the vicinity of the sheltered stairwell that rose from the concourse level of the station. The latter two confirmed the defendant's assertions that he did not have identification. They also confirmed that he was simply trying to catch the last train to the Clarkson GO station. The defendant, said Jessett, did not appear to be impaired by alcohol or drugs.

[17] Jessett asked the defendant for identification and his train ticket. The defendant told Jessett he was going to Clarkson. Jessett knew the 939 stopped at that station. The defendant explained that he was not carrying any identification. A second request provoked rude and insulting language that caused Jessett to feel "frustrated" and "annoyed". Again, the defendant produced no identification, either documentary or verbal. Jessett explained to the defendant that he wanted his identification because he was investigating him "for mischief" and he could be arrested for that offence. The defendant's response to a third request for identification mimicked his first two. He began to pace in a narrow circle as his two acquaintances, who were also disrespectful, encouraged him to leave. Jessett told the defendant he "wasn't free to go" because of the ongoing mischief investigation. Jessett agreed the defendant was detained at this point, but he felt no obligation to afford the defendant his rights to counsel. It was "unsafe", he explained, to do so on the platform and, in any event, the defendant had not yet been charged.

[18] Jessett had not yet decided whether to charge the defendant. GO Transit's customer service policy favours leniency in exercising the discretion to lay a charge. Jessett believed that the defendant's sole purpose in attempting to open the coach doors was to get on the train to go home. In his view, however, disrupting the progress of a train, by delaying the train and its passengers, made out the offence of mischief.

[19] The defendant tried to walk past Jessett. Jessett responded by stretching out his arm to contain him. The defendant bumped into Jessett's outstretched arm and tried to push past him. Jessett then put both his hands on the defendant's right arm and told him he was under arrest for mischief. They were, at this point, standing "in the narrow area between the edge of platform 5 and the platform stairwell shelter" and the defendant was "pulling [Jessett] down the platform". Edwards was "within earshot", no more than a few feet away.

[20] The defendant did not appear to understand Jessett's words. He "began", Jessett testified, "to run away": first "east, but [he] then makes a sharp turn to run north … towards platform 4". As he began to run, the defendant abruptly spun around and threw a left-handed punch at Jessett. The punch did not land, but it caused Jessett to lose physical contact with the defendant. Edwards, who was in the immediate vicinity during Jessett's exchange with the defendant, had said nothing to this point.

[21] Jessett's testimonial account in direct examination, as just summarized, was consistent with that set out in an "Incident Report" he completed on his work computer before the end of his shift that same morning. In the "Narrative" chapter of the Report, Jessett wrote:

The male [the defendant] then started to walk east on platform 4/5. The author [Jessett] took control of the male's right arm and advised him that he was under arrest for mischief. The male then actively pulled away from the author, swinging his left arm towards the author with a closed fist. The closed fist missed the author, and the author gave loud verbal commands to the male to stop resisting and to get onto the ground, but the male actively refused trying to pull away from the author. EDWARDS assisted the author in attempting to control the male and get him onto the ground so he could be controlled and arrested. The male then attempted to run west on platform 4/5 in attempt to flee from the officers. [Capitalization in original; underscoring and italicization added]

[22] Although both DVRs capture the defendant's initial effort to run away from the officers, Jessett was unable to locate any images of the defendant punching or swinging at him in either video. The only recorded physical contact he could identify was not during this sequence but several seconds later or, in Jessett's words, "just before I step onto the track bed". Upon re-viewing the DVR in court, Jessett placed Edwards behind him at the time his platform-edge physical contact with the defendant occurred. He insisted, however, that his earlier notation that Edwards " assisted the author in attempting to control the male and get him onto the ground" before the defendant ran west along the platform was "true" :

He [Edwards is] coming up from behind to assist. … [As for p]hysically making contact with the defendant, he was not assisting; but he was physically coming quickly towards me in the video, it appears he is at a running stance coming towards me, so he is physically coming towards me to assist.

[23] Jessett was only a few feet behind the defendant as he ran along the platform. The defendant, Jessett testified, continued to resist when he caught up with him at the edge of platform 4. He managed to get hold of the defendant's arm and, in the officer's words in direct examination, "we both, at the same time, fall onto the track bed", about one to two feet below. "The "momentum of the struggle", he said, "carried us onto the track bed". To identical effect, Jessett's Incident Report reads that as the defendant "ran west on platform 4/5 in attempt to flee from the officers", a "struggle for control of the male ensued and as a result EDWARDS and the author fell off the platform 4/5 and onto the track bed of the track 2". On watching the video in court, Jessett acknowledged that he alone was the first to "descend into the track" bed, that he then "pulled" the defendant down, and that Edwards did not fall off the platform but, rather, later "stepped down on his own accord to assist me". Faced with these inconsistencies, Jessett insisted that, "at the time of the writing the Report, that's what I perceived to have occurred".

[24] In cross-examination, and having just viewed the relevant portion of the DVR, Jessett explained that,

In my pursuit to catch up to the defendant, I fall onto the track bed. But at the same time, I'm also able to get a hand onto the defendant, and in the same motion of me falling, or me going onto the track bed , off the platform, I pull the defendant onto the tracks as well . [Underscoring added.]

Taken to the portion of the DVR that captures their descent onto the tracks, Jessett agreed that he had entered the track bed first and only then pulled the defendant down to the same level. This dynamic was "not intentional", he explained, but merely a product of still holding onto the defendant as he, Jessett, "fell" onto the tracks. Pressed as to whether the actual dynamic, as captured by the video, displays Jessett jumping down onto the track bed and then pulling the defendant down after him, Jessett allowed the "pull" but continued to maintain that he had merely "stumbled" onto the tracks.

(ii) Edwards' Platform-Level Account

[25] Each carriage's doors are recessed about six inches from its outer walls. Terry Edwards was standing about three feet from the side of the train when, from a distance of about a hundred feet, he saw a man, the defendant, trying to pry open the doors on a carriage of the evening's last scheduled train. The defendant managed to push the doors slightly ajar for a few seconds. The train was already moving. It continued its westbound progress out of the station. It did not stop. It did not slow down. It was not delayed. Nonetheless, Edwards reasoned, at least when pressed in cross-examination, that the defendant's conduct amounted to mischief as "he was in the process of interfering with the operation of the train".

[26] The defendant released his grip on the doors when Edwards' partner, Jessett, shouted towards him. Jessett ran towards the defendant. Edwards was close behind, reaching the defendant within "a few seconds". Jessett questioned the defendant; Edwards did not participate in their verbal exchange. Edwards could not "speak to what [Jessett] said" and he could not even recall "the topic of conversation". The defendant was not co-operative. Edwards first said the defendant "refused" to provide identification; later, he testified that the defendant explained that he did not have any. He could not recall whether the defendant was asked "to identify himself by other means". Jessett's conversation with the defendant lasted about a minute. Edwards was "in a position to hear everything [Jessett] said to the accused". He said nothing to the defendant himself. Edwards did instruct two apparent associates of the defendant to leave the platform, but they refused.

[27] Jessett told the defendant he could not leave until the officers identified him. The defendant took off, running east around a staircase shelter that connected the concourse and platform levels, then north across the platform and then west. Neither officer had yet touched the defendant. They had not yet discussed how to respond to the defendant's effort to open the coach doors. Jessett took off after the defendant and Edwards joined the pursuit. According to Edwards, Jessett's first physical contact with the defendant was either when the two of them were at the edge of the platform or when they both descended to the track bed between platforms 3 and 4. The defendant actively resisted Jessett's efforts to physically restrain him. Edwards, who was then still on the platform, radioed McClure for assistance.

(iii) The Video Record of the Events on the Platform

[28] The defendant and the two GO Transit officers first appear about one minute into the video recordings. They are on the number 5 side of the 4/5 platform and are making their way north around the housing or shelter that covers one of the staircases connecting the platform and concourse levels at the station. The officers appear to be escorting the defendant toward platform 4. Their pace is unremarkable. There is no indication of any agitation or resistance, let alone struggle. Within a few seconds, the defendant abruptly begins to run in the direction of platform 4. He looks over his shoulder at the closer of the two officers (Jessett, on all the other evidence) as he takes off. The video images are very clear: the defendant does not swing or punch at Jessett or make any physically aggressive gesture. Jessett instantly pursues the defendant. He is sufficiently close behind that he can touch, or almost so, the defendant's back or arm with his outstretched arm.

[29] The defendant begins to turn west as he clears the staircase shelter and reaches the edge of the number 4 platform. Jessett is at his immediate back, in physical contact with the defendant. Edwards is some eight to ten feet to his rear. Jessett either jumps or deliberately steps down to the track bed. His left arm is holding that of the defendant who is still on the platform and trying to run west with Edwards now having closed the gap to about four feet. Jessett lifts and pulls the defendant onto the track bed. He lands on his feet between the first set of tracks. Within a second, Edwards too has descended to the track bed. In total, about 15 seconds have passed since the first video image of the officers and the defendant.

(c) The Events on the Track Bed

(i) Jessett's Track-Level Account

[30] Jessett and the defendant were both standing when each landed on the track bed. Their "tussle" resumed, with Edwards joining them to assist Jessett. The defendant's two associates also stepped down to the track level. Meantime, the three combatants fell to the ground, with Jessett and the defendant landing on top of Edwards who was then lying on one of the two train rails that, according to Jessett, rise to about three inches above their supporting ties. Jessett used his radio to signal an emergency situation as all three were rolling on the track bed while the defendant tried to escape the officers' grasp. Eventually he succeeded. Breaking free of Jessett's grip, the defendant stood up and ran west along the track bed. Jessett gave chase with Jamie McClure, a transit safety officer who had responded to his emergency call.

[31] McClure was the first to catch up with the defendant. He was swearing, resisting Jessett's commands and thrashing his legs toward the two officers. "Multiple kicks", Jessett testified, "connected with multiple parts of my body". None caused any injury. In cross-examination, Jessett retreated from his earlier account, expressing uncertainty as to whether the defendant's conduct amounted to kicks or merely incidental contact with his feet as the officers endeavoured to restrain him. He soon fully reversed himself:

I came into contact with his feet or legs during the falls, because there was multiple times that we were on the ground. So, I was in contact with his legs during that time. He was kicking and squirming and rolling around while on the ground. Did the actual kicking motions make contact with me? No.

[32] All three lost their balance and fell to the track bed. McClure warned Jessett that he was going to deploy "OC spray" (Oleoresin Capsicum or "pepper spray"). He then administered a one-second burst of "OC" foam in the direction of the defendant's face. OC, according to Jessett, is intended to disorient and distract offenders who are actively resisting arrest. It normally causes tearing, disorientation and a brief shortness of breath. The defendant complained about the foam and tried to wipe it from his eyes. However, he remained combative and continued to defy Jessett's instructions to place his arms behind his back. Eventually, the officers cuffed the defendant's wrists. In Jessett's estimation, "one to two minutes" had elapsed since the defendant first took flight.

[33] Jessett rolled the defendant onto his side – the "recovery position" – so the OC foam could drip off his face. Jessett did not wipe or flush out the defendant's eyes. He did not want to "cross-contaminate" himself, he explained. Further, there was no water in the track area and he and McClure were trying to get the defendant to "calm down". Jessett agreed that the defendant had been compliant for some three or four minutes prior to the TPS taking custody of him. He agreed that it was at least possible that water could be brought to someone on the track bed within thirty seconds. He also agreed that he did not put on his latex gloves to avoid the risk of contamination.

[34] The defendant complied with Jessett's directions to accompany him onto the platform. Jessett estimated this was about three or four minutes after he was pepper-foamed and cuffed. The movement between track bed and platform is a single step, if a slightly exaggerated one.

[35] According to TPS testimony, the police attended at about 12:56am. The defendant was in GO Transit custody: he was cuffed, his shirt had come off in the struggle, his nose was running, and he complained about chest pains and being pepper sprayed. EMS personnel washed the defendant's eyes. He was then taken out to Bay Street by the police where, at 1:05am, he was formally arrested and read his rights to counsel. The defendant was escorted to the hospital in an ambulance at 1:29am.

[36] Jessett never advised the defendant of his rights to counsel. He explained that he had delayed until the defendant was co-operative and thus in a position to understand. Later still, he attributed the delay to needing to be in circumstances where he could read the rights verbatim from his notebook. Jessett was certain he never heard McClure place the defendant under arrest.

[37] Jessett suffered some cuts and scrapes and slight bruising. He first attributed "all" these injuries to "rolling around on the track bed". In cross-examination, he said he was "unaware" of the cause of his injuries. Jessett adopted his earlier testimony on the point (which he acknowledged was "a little different") when taken to a transcript of it.

[38] Jessett was not aware that Edwards had broken his ankle until he saw him sitting on the edge of platform number 3 sometime after the defendant had been subdued. In his Incident Report, Jessett credited Edwards' broken ankle to him and the defendant falling on Edwards and "pinning [his] left ankle against one of the rails". He had not, he said, observed Edwards knee or kick at the defendant during the incident. However, after watching the video he acknowledged that Edwards had made a "kicking motion towards" the defendant, or what Jessett described as a "knee strike". The kick or strike at the defendant occurred just before Edwards fell and "possibly", Jessett allowed, "caused [Edwards'] ankle to break". Nonetheless, Jessett later returned to the view, as expressed in his Incident Report, that Edwards broke his ankle when he and the defendant fell on top of him on the track.

(ii) Edwards' Track-Level Account

[39] Edwards, after radioing McClure, joined Jessett and the defendant on the track bed. He grabbed the defendant's left arm or side. The defendant continued to resist, leading Edwards to say, "You're under arrest. Stop resisting". Edwards several times repeated words of arrest but he never verbalized the grounds or otherwise explained his reasons to the defendant. He mutely considered several offences for which the defendant might be liable: mischief, trespass, and interfering with enjoyment of the transit system (a violation of the MetroLinx by-law). In his own mind, he was endeavouring to effect an arrest for the Criminal Code offence of mischief resulting from the defendant's efforts to pry open carriage doors on the train.

[40] The defendant's lack of co-operation and increasing resistance led Edwards, as trained, to "escalate his use of force". Using as much force as he could muster, he delivered several "knee strikes" with his right leg to the left side of the defendant's body in an effort to force him to the ground. Edwards agreed that these strikes would constitute an assault if the defendant was not then lawfully under arrest. Edwards denied striking the defendant while he was on the ground. However, after persistent questioning and reviews of the video, Edwards agreed that the defendant was either hunched over or on his knees when he delivered the first knee strike. He denied kicking the defendant with his foot (as opposed to his knee) at any time. And, when watching the DVR in court, he denied observing any full extension of his own leg on the occasions his leg made contact with the defendant.

[41] Edwards' knee strikes proved ineffective: the defendant was still standing and still trying to escape from the two officers by pushing at them with the weight of his body. Edwards' left foot and leg were then pressed against the train rail which, according to the officer, rises about six to eight inches above the track, or approximately half-way up his calf. In Edwards' words in direct examination, the defendant,

… had sort of pushed his way forward onto me and at which point I had fallen backwards with the male on top of me, with my left leg against the track …. So at this point I can feel an enormous amount of pain through my left leg and I could hear a loud snap … [and] like almost a burning sensation.

Edwards attributed the fracture of his leg to his fall on the track as the defendant "pushed through" him with his body. It occurred less than twenty seconds after the defendant first descended to the track bed. In terms of physical interaction, those twenty seconds framed the "entire contact" between Edwards and the defendant.

[42] Edwards denied the possibility that he "was even a little off balance as a result of the maximum force knee strike", or that he fell as a result of any imbalance, or that he fell without the application of force or any other "assistance" by the defendant. Edwards insisted that the defendant tried to push through him while trying to escape and landed on top of him, pinning him to the ground for about ten seconds. Edwards could not locate any DVR images of the defendant lying on top of him. He did not know where Jessett ended up.

[43] Edwards re-viewed both DVRs in the Crown's office the morning of his cross-examination. Pressed as to the dynamics of his fall, Edwards volunteered that there was a "time lapse" of "a few seconds" between "the knee strikes and when we had gone to the ground", inferring that he had had time to stabilize himself. He denied that he "just happened to fall over" as he delivered the final knee strike. Later, on re-exposure to the video of the incident, Edwards modified his account, agreeing that he fell back " immediately after" the knee strike.

[44] Edwards recalled that McClure attended at some point, but he did not know when and he did not hear him say anything to the defendant. Nor did he, Edwards, ever provide the defendant with his rights to counsel.

[45] Edwards could not stand after injuring his leg, but he managed to hop to the adjacent platform number three. He was no longer focused on the defendant's situation. EMS eventually transferred Edwards to Mt. Sinai Hospital. He had fractured his left ankle and was placed in a cast. He underwent surgery a week later, including the installation of a plate and eight screws. A second procedure followed, and then six months of physiotherapy. His ankle was "fine" and he had returned to full regular duties by the time he attended the trial.

[46] Edwards explained that transit officers' use-of-force training included an escalating response to active resistance on the part of potential arrestees. The lowest rung in the hierarchy of responses is voice commands. Hand controls follow, and then hand or knee strikes. Pepper spray is the next elevation and, finally, the use of a baton.

(iii) McClure's Track-Level Account

[47] Cst. Jamie McClure had been a GO transit safety officer for seven years. He too was assigned to uniform patrol at Union Station. At about 12:50am, Jessett radioed McClure, requesting his assistance. McClure could not recall any more of the contents of the dispatch, but it sounded urgent. He jogged down the platform in Jessett's direction. From about a hundred-foot distance, he spotted Jessett and Edwards involved in a physical altercation with the defendant on the track bed. McClure said he could hear his colleagues saying, "Stop resisting", "You're under arrest". Later, he testified that, in fact, he did not hear either Jessett or Edwards say, "You're under arrest" to the defendant.

[48] McClure joined the others on the track bed. The defendant was throwing closed-fist punches in the direction of Jessett's face as he tried to pull away from the transit officers. This punching (which McClure could not locate when a DVR of the incident was played in court) occurred over the course of a second while the defendant was lying on his back. The defendant's blows did not make contact but, McClure said, Jessett was in a position to see them. A man and woman who appeared to be friends of the defendant were also on the track bed. Fearing they were going to interfere, McClure ordered them to return to the platform. They did.

[49] Other than the track-bed scuffle he observed while still on the platform, McClure did not see Edwards involved in any physical altercation with the defendant. Nor did he see Edwards fall. Nor did he ever see the defendant on top of Edwards.

[50] The defendant managed to get up and run west along the track bed. McClure's effort to grab his arm left him holding the defendant's ripped shirt. He and Jessett soon caught up with the defendant. McClure put him on his back on the ground, and told him to "Stop resisting". "You're under arrest", he said. McClure did not tell the defendant why he placed him under arrest as he did not know what offence he had committed. The defendant's fists were clenched and he was still trying to pull away. To maintain control, McClure issued a one-second blast of OC foam at the defendant's face. The foam took about five seconds to effectively disable the defendant. Once compliant, McClure, with Jessett's assistance, placed the defendant on his stomach and cuffed him from behind. McClure did not wash out the defendant's eyes; he had no access to water on the tracks and nothing appropriate in his First Aid kit.

[51] Members of the TPS arrived about five minutes later and took custody of the defendant. McClure learned that Edwards had sustained an injury to his leg during those few minutes. McClure never provided the defendant with his rights to counsel or advised him of the reasons for his arrest. He did not know the basis for the arrest. He had no independent recall of anyone advising the defendant of the reasons for his arrest. He testified, however, that he and Jessett had later discussed between themselves Jessett's reasons for the defendant's arrest.

(iv) The Video Record of the Events on the Track Bed

[52] The distance of the camera, the close contact of the officers and the defendant and the grainy nature of the video resolution make it difficult to discern the altercation on the track bed in any detail. It is clear, however, that the defendant is quickly grabbed by Jessett and taken to the ground. As both struggle on the track bed, Edwards hovers over them and begins to deliver a series of knee strikes in the direction of the defendant as he lies on the ground or, possibly, struggles to get up.

[53] An unidentified man (likely one half of the couple referred to as the defendant's friends or acquaintances) observes the fracas while standing on the edge of the number 4 platform. The man steps down onto the track bed as McClure can first be seen running west towards the tussle. The man tries to intervene or separate the combatants by cautiously extending his arm in their midst. He quickly disengages and backs off. The interloper is watching from a standing position close to the platform when McClure reaches the altercation and verbally engages him. Concurrently, the defendant, while still in Jessett's grip, appears to have partially raised himself from the track bed. Edwards, his left heel hooked on one of the train tracks, swings his right leg back and then, in a very forceful motion, forward at the defendant. Given the poor quality of the video, it is possible that Edwards administered a "knee strike". However, his knee does not appear to bend and his leg appears fully extended during the course of the forward motion. Either way, on completion of this exertion Edwards almost immediately falls backwards across the tracks. No external force precipitates his fall. Once Edwards is down, Jessett and the defendant both appear to fall forward onto the lower part of Edwards' body. Approximately fifteen seconds have passed since the defendant was first pulled onto the track bed.

[54] As Edwards falls, McClure turns to direct his attention to the events on the track. He steps down to join his colleagues who, along with the defendant, are all on the ground. The unidentified man, who had returned to the platform, steps back down to the track bed with a woman, likely the second "acquaintance" to whom the officers refer in their evidence. McClure turns to address them and, after some discussion, they step back onto the platform. Meantime, the defendant has partially freed himself from the two other officers' grasp. McClure turns back, spots the defendant's vertical position and grabs for him as he begins to run west along the track bed. While Edwards hops to the edge of platform 3, Jessett joins McClure's pursuit of the defendant. The two officers ground him within a matter of a very few seconds. A protracted struggle follows, but it is impossible to make out the details of this exchange on either video recording. In particular, the poor resolution does not permit me to identify the deployment of pepper foam, the defendant being cuffed, or his being placed in a recovery position. The defendant's next conspicuous appearance is when he is being marched east on platform 4 by a phalanx of uniformed officers. The defendant is shirtless and appears to be cuffed from behind. This is some four-and-a-half or five minutes after McClure and Jessett first grounded him.

(d) After the Defendant's Apprehension

[55] Jessett testified to discussing the events with Edwards as they were transported to Mt. Sinai Hospital in the same ambulance. Edwards, on the other hand, denied ever speaking to Jessett about their observations before making his notes. They were placed in adjoining beds at Mt. Sinai, separated only by a curtain. TPS officers concurrently interviewed them about the incident. Although focused on his own interview, Jessett had no difficulty hearing his partner's exchange with the police. Edwards denied hearing any of Jessett's conversation with the TPS.

[56] Jessett returned to the GO Transit office at Union Station at about 3:50am. He then prepared an "Incident Report" on an office computer for GO Transit management. Thereafter, he did not see the Report until it was produced at trial. Jessett had watched the DVRs of the entire incident several times, at least once before the end of his shift at 7:30 that same morning. His evidence is confusing and inconsistent as to when he completed the Incident Report (at his office before the end of his shift or on another day) and when he recorded his notes ("at the hospital" or later, at the station, after he had filed the Report). He denied that watching the video affected his recall or his written record of the events.

[57] Jessett's Incident Report refers to a CCTV recording commencing at 12:35am. The DVRs that form part of the trial record do not begin until sometime after 12:46am – a little after the train pulled out of the station. Jessett could not explain the discrepancy. No DVRs of the platforms before the 939 departed were provided to the TPS or otherwise made available to the Crown or the defence.

[58] Jessett could also not satisfactorily explain how, as he once testified, he had drafted most of a detailed, single-spaced, multi-page Incident Report (totaling in excess of 2,500 words of his own creation), and filled three intake pages, in the half-hour between 4am (when he began typing the Report) and 4:32am (when the Report is "ended"). As noted earlier, at other times Jessett could not recall when he completed the Report.

[59] Edwards did not record his notes until sometime much later the same morning, after his release from the hospital. Unlike Jessett, he did not watch any DVRs of the events before putting pen to paper.

[60] McClure had watched DVRs of the events on several occasions, but not before he completed his notes. Despite knowing he would likely be called as a witness, McClure discussed the incident with Jessett and Edwards at work. All three had agreed on "the narrative of what occurred that evening". These discussions, he later qualified, focused on Edwards' injury and, in any event, had not affected his recall of the occurrence.

C. ANALYSIS

(a) Introduction

[61] This case, as most, is ultimately driven by its facts, in particular those bearing on the defendant's conduct, the lawfulness of his arrest, and the nature of his and the officers' response. The distillation of fact from evidence is here primarily processed by the rules that govern the assessment of the credibility of the three GO Transit officers. The facts, in turn, are grist for the legal mill governing police-citizen interface in the context of law enforcement and, of course, the restraints and obligations, if any, imposed on those on both sides of this equation. In the end, as earlier noted, the Crown bears the burden of proof, and beyond reasonable doubt, respecting each of the offences charged.

(b) The Legal Framework

(i) Assessing Credibility

[62] A defendant bears no legal duty to testify at his trial, nor may any adverse inference be drawn from his failure to do so. Realistically, however, where a defendant, as here, does not testify in a case involving direct incriminatory evidence and where, again as here, no evidence of a prior exculpatory statement is adduced, an evidentiary basis for reasonable doubt, if any, cannot be found in the defendant's account of the events; its source, if at all, must lie in the evidence led through the prosecution or the omissions, contradictions or lacunae in that evidence. Nonetheless, and to be clear, a defendant's testimonial silence neither reduces nor transfers the Crown's burden of proof.

[63] There are a number of internal and inter-witness inconsistencies in the testimony of the GO Transit officers and as compared to portions of the video record of the same events. These inconsistencies compel a close analysis of the credibility – in the sense of both the veracity or honesty and, in particular, reliability – of the officers. (See, for example, the discussions of these two axes of testimonial trustworthiness in R. v. Morrissey, 97 C.C.C. (3d) 193 (Ont. C.A.), at 205, and, more recently, in R. v. Thomas, 2012 ONSC 6653, at para. 13.) This is not a he-say/she-say case or, more generally, one involving competing testimonial narratives. Nonetheless, the rationale of R. v. W.(D.), 63 C.C.C. (3d) 397 (S.C.C.) clearly obtains. As said by the Court of Appeal in R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114:

[T]he principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made … out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

See, also, R. v. Robinson, [2011] O.J. No. 4854 (Sup. Ct.), at para. 35.

[64] I also note that, like any trier of fact, I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S., 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, 125 C.C.C. (3d) 482 (Ont. C.A.), at paras. 4-5. And, again with reason, I may accord different weight to different parts of the evidence that I do accept: R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[65] One final general comment respecting the assessment of the officers' credibility: I am left with little real concern respecting the reliability of the officers' testimony as a result of either their pre-trial exposure to screenings of the DVRs or the risk of collusion. Jessett, Edwards and McClure almost certainly discussed the events of June 2, 2013 and, as a result, there is always a danger of unconscious contamination. However, their material inconsistencies discount the suggestion that they intentionally sought to harmonize their accounts, and their near-contemporaneous Incident Reports limit their testimonial flexibility. Similarly, their prior viewings of the video recordings appear to have had little if any educative value on the officers as each of them continued to adhere to recollections that were sometimes strikingly at odds with events unambiguously captured by the DVRs.

(ii) The Law of Warrantless Arrest

[66] The integrity of all five of the charges the defendant faces is informed by the question of the lawfulness of his arrest. Four of the charges expressly allege variants of resistance to a "lawful arrest" or "lawful custody", and the resolution of several of them depends on the answer to this question. If the officers who purported to arrest the defendant did not act within the compass of their legal authority, then his efforts to escape from, resist, assault or obstruct the officers effecting his apprehension are, depending on the proportionality of the force he used, justified in law. Code J. recently observed in R. v. Zargar, [2014] O.J. No. 1042 (Sup. Ct.), at para. 16:

Long before the advent of the Charter of Rights, in 1982, the law relating to police powers developed through civil tort actions and through prosecutions for the offences of assault police and obstruct police. These latter two offences, contrary to s. 270(1)(a) and s. 129(a) of the Criminal Code, require the Crown to prove beyond reasonable doubt that the officer was "in the execution of his duty". [Emphasis added.]

The same rule effectively applies to a further charge on which the defendant was arraigned, that of escape lawful custody, contrary to s. 145(1)(a) of the Code. As put by the Supreme Court in R. v. Dedman, [1985] 2 S.C.R. 2, at 28:

[P]olice officers, when acting or purporting to act in their official capacity as agents of the state, only act lawfully if they act in the exercise of authority which is either conferred by statute or derived as a matter of common law from their duties.

(See also, R. v. Simpson, 79 C.C.C. (3d) 482 (C.A.) and Figueiras v. Toronto Police Services Board, et al., 2015 ONCA 208, at paras. 41-44.)

[67] The authority for a warrantless arrest in the circumstances that here obtain is grounded in statute, specifically s. 495(1)(a) of the Code:

A peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable ground, he believes has committed of is about to commit an indictable offence.

It is long settled that, in the context of this provision, an "indictable offence" includes a hybrid offence such as mischief: R v. Huff, 1979 ABCA 234, 50 C.C.C. (2d) 324 (Alta. C.A.), at para. 18. The formulation in s. 495 encompasses both subjective and objective elements. As affirmed by the Supreme Court in R. v. Storrey, 53 C.C.C. (3d) 316, at para. 17:

[T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

"Reasonable and probable grounds" is a lower threshold than that "required to establish a prima facie case for conviction" (R. v. Storrey, supra). Further, an assessment of the reasonableness of an officer's grounds must take into consideration, as here, the often dynamic and volatile circumstances in which such decisions are made: R. v. Golub, 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18. However, any relaxation of the objective standard cannot go so far as to retroactively reframe the operative basis of an arrest or substitute a second offence for that said to initially animate the arrest. As said R. v. Huff, supra, at paras. 15-16, and there founded on venerable authority: "an arrest stated to be for one described offence cannot be validated by a later reliance upon another offence for which it might have been, but was not, made". (See also, R. v. Powder, 2007 ABQB 735, 54 C.R. (6th) 110 (Alta. Q.B.), at paras. 39-40.) Accordingly, the Crown need not establish that the defendant was guilty of the offence said to underlie the defendant's arrest. However, as "lawful arrest" and "lawful custody" are essential elements of four of the five offences charged, it must prove beyond reasonable doubt that the arresting or custodial officer, as the case may be, believed on reasonable grounds that the offence was made out at the time he endeavoured to apprehend or maintain custody of the defendant.

[68] Crown counsel strongly maintains the lawfulness of the transit officers' arrest of the defendant. Failing such authority, he fairly concedes that the defendant, like any person subject to the unjustified application of force, has the right to escape, resist or otherwise use force to self-defensively respond so long, of course, that his reactive force is not excessive. Non-compliance with an unlawful police demand may sometimes be an act of courage or foolhardiness, but it is not in itself an offence.

(c) Applying the Law

(i) Introduction

[69] The evidence, testimonial and video, is consistent in portraying the defendant as repeatedly running from and struggling with the officers. If the defendant's arrest was lawful then his efforts to physically repel the officers while resisting his arrest amounted to assault police for that prohibited purpose (as charged, in the case of Jessett and Edwards), obstructing a peace officer (as particularized with respect to McClure) and escaping lawful custody (as regards his alleged escape from Jessett). The fifth charge that of assaulting Edwards and thereby occasioning bodily harm, is not framed as a resist-arrest offence. If the defendant's purported arrest was improper, a defence of justification is at least arguably available to him with respect to this count as well. I begin, however, by addressing the charges naming Edwards as complainant, and without reference to the legality of the defendant's arrest.

(ii) The Counts Alleging Assaults on Edwards

[70] The single count that, on its face, does not necessarily require a determination of the lawfulness of the defendant's apprehension is that charging that he "did in committing an assault upon Terry Edwards cause bodily harm to him". There is no doubt that Edwards suffered bodily harm. It is also beyond doubt that that his injury occurred in the course of the fracas with (or, on Edwards' account, his efforts to apprehend) the defendant. The neat question, and only one of moment, is whether the defendant assaulted Edwards and thereby caused the injury to his leg. The neat answer is that I am not so satisfied beyond reasonable doubt that this occurred.

[71] Edwards is the only witness who testified with respect to the cause of the fracture of his ankle. Both Jessett and McClure denied observing Edwards fall down. On Edwards' account, using all his might he struck the defendant with his knee in an effort to restrain him. A few seconds after landing the blow, Edwards continued, the defendant tried to push through him, causing him to tumble backwards and fracturing his left leg as the defendant fell on top of him.

[72] In cross-examination, Edwards endeavoured to dispel the suggestion that the fall may have resulted from losing his balance by introducing a "time lapse" between the knee strike and his fall. Only when he was once again shown the video images of this exchange did Edwards concede that he had fallen backwards "immediately" after landing his blow – not, as he had earlier testified, a "few seconds" later.

[73] Edwards' reconstruction of the timing of his fall is consistent with the DVR of the incident. Whether or not Edwards kicked the defendant (as it appears to me) or struck him with his knee (as Edwards insisted), his ungainly posture, the force of his blow, his perilous one-legged stance and the immediacy of his tumble backwards is at least as consistent with falling upon losing his balance as it is with any assignment of agency to the defendant. Indeed, the only video-discernable forward motion (or "push, as Edwards would have it) occurs after Edwards has already fallen down. Accordingly, I cannot be satisfied to the requisite standard that the defendant assaulted Edwards at the moment encompassed by this charge, let alone caused him bodily harm. As a result, I find the defendant not guilty of this count.

[74] The evidentiary basis for my verdict respecting the "bodily harm" count inevitably impacts on the disposition of the sister count alleging that the defendant "did assault Terry Edwards with intent to resist [his] lawful arrest". The only material application of force Edwards sustained that he attributes to the defendant is the very same pushing he says caused the fracture of his lower leg. In view of my factual doubt as to whether any such pushing occurred, I can see no reason to reach a different result in regard to the resist-lawful-arrest charge that particularizes Edwards as the complainant. Even if, as appears likely from repeated viewings of the DVR, there is some forward physical motion by the defendant towards and upon Edwards after the officer's fall, I cannot in the circumstances conclude beyond reasonable doubt that the defendant's conduct amounted to the intentional, or even reckless, application of force as opposed to a reflexive response to the blow he had just received or an accidental artefact of his ongoing struggle with Jessett. Accordingly, I find the defendant not guilty of this count as well.

[75] To state the obvious, I have determined these two counts involving Edwards without addressing the legality of the defendant's arrest. The result would, of course, be the same if I ultimately hold that the defendant was not lawfully under lawful arrest at the time of his physical interaction with Edwards. The officer fairly conceded that his knee strikes would constitute an assault were the defendant not then lawfully under arrest. Given the force of Edwards' blows – be they knee strikes or foot kicks – the defendant cannot, I find, be legally faulted for intentionally pushing at and through Edwards (if such is what transpired) in order to defend himself. The defendant was at the receiving end of a fierce pummelling. If his arrest was not warranted, the defendant was well justified in intentionally grounding Edwards to prevent any further blows.

(iii) The Remaining Counts

[76] The disposition of three remaining counts directs attention to the lawfulness of the defendant's arrest. This, in turn, commands an evaluation of the GO Transit officers' credibility and, in particular, that of Cst. Jessett. It was Jessett who purported to have arrested the defendant for the offence of "mischief" – defined, for current purposes, in s. 430(1)(c) of the Code as the wilful obstruction, interruption or interference "with the lawful use, enjoyment or operation of property". This charge, as earlier noted, was dismissed at the invitation of the Crown mid-way through the trial. Crown counsel, by way of explanation, submitted that, "in light of the evidence that we've heard … there's no reasonable prospect of conviction for that charge". Although not specifically articulated, the phrase "in light of the evidence we've heard" undoubtedly referenced the direct conflict between the testimonial accounts of Jessett and Edwards as to the impact (or, in Edwards' recall, non-impact) of the defendant's coach-side manipulations on the progress of the train.

[77] Crown counsel's decision to jettison the mischief charge reflected a proper exercise of his obligation to continually assess the strength of his case as the evidence developed and as measured against the legal burden of persuasion borne by the prosecution. The police, of course, bear nowhere near as high an onus in exercising a warrantless arrest. As discussed earlier, the legal standard for a lawful arrest in these circumstances is an honest subjective belief that a person has committed or is about to commit a specified offence (here, mischief) and reasonable and probable grounds to hold that belief. Counsel are effectively agreed that the impugned act bearing on the legality of the defendant's arrest is his effort to open the closed doors of the train carriage, not any subsequent conduct. This reflects the language of the mischief count which, although now dismissed, framed the issues at trial by particularizing that the defendant "wilfully interfere[d] with the lawful operation … of property to wit: the 12:43AM westbound train from Union Station by forcing the door open while the train was in motion subsequently causing the train to stop".

[78] The primary issue then is whether Jessett had an objective basis to arrest the defendant for the offence of mischief. There is, as well, a second and perhaps predicate issue: even if Jessett had the requisite grounds, did he in fact tell the defendant he was under arrest? If not, and in the circumstances that prevailed, it is doubtful that the defendant can be criminally faulted for resisting an arrest of which he was ignorant, be it by way of assault, obstruction or escape – so long, of course that the force he used to resist was not excessive. To be very clear, I do not consider any of the defendant's use of force as disproportionate to that visited on him; if unlawfully detained, his physical resistance amounted to no more than that situationally necessary to extricate himself from, in effect, the assault and attempted abduction he endured at the hands of the transit police.

[79] Again, only Jessett testified to having effected a platform-level arrest of the defendant. This is more than curious, not least because his partner insisted (and Jessett did not disagree) that he, Edwards, was close enough to hear every word said during the course of Jessett's brief platform-level exchange with the defendant. Yet Edwards could not recall Jessett uttering words of arrest, nor did his notes (to which he not infrequently referred) offer any assistance in this regard. Having closely observed Edwards in the witness box over the course of at least two days, I am confident that had Jessett verbalized an arrest on the platform Edwards would have heard, noted, remembered and testified about the arrest. He did not. For this reason, and for several other credibility concerns I soon address, I cannot accept Jessett's claim that he arrested the defendant. This may have been his settled intention, but I am far from satisfied that words of arrest were uttered at any time prior to when the defendant first began to run.

[80] Nor can I accept Jessett's testimony respecting the circumstances surrounding the defendant's purported arrest. On his account, the defendant physically challenged him by pushing against his outstretched arm, leading to Jessett grabbing the defendant's arm and telling him he was under arrest. These events, said Jessett, occurred by platform 5 on the south side of the staircase shelter. According to Jessett, the defendant ran east and then turned the southeast corner of the shelter, heading north toward platform 4 while dragging the officer who was doing his best to hang onto his arm. Mapping Jessett's evidence, his and the defendant's location at this very point is along the east wall of the shelter, a position very clearly captured by one of the two CCTV cameras. It is at this location that Jessett alleges the defendant abruptly turned and swung a closed fist in his direction, causing Jessett to lose physical contact with him. Jessett testified that he, with Edwards' direct assistance, physically grappled with the defendant before the latter tried to run west on platform 4 – this final mayhem occurring just before the descent to the track bed. (Only after repeated video viewings in cross-examination did Jessett finally concede that Edwards did not physically assist him in his platform-level efforts to restrain the defendant.)

[81] Edward's account of the initial pursuit bears some similarity to Jessett's. Like Jessett, Edwards effectively places the defendant in the narrow space between the staircase shelter and platform 5 when he began to run from the officers and then turn north around the shelter in the direction of platform 4. Despite his proximity, Edwards makes no mention of the defendant taking a swing at Jessett or, as earlier noted, of Jessett arresting the defendant. Further, and contrary to Jessett's elaborate account of pushing, grabbing and dragging, Edwards testified that Jessett had absolutely no physical contact with the defendant until they were at the edge of platform 4 or already on the track bed below. Further still, and again contrary to Jessett's initial and repeated account, Edwards himself never touched the defendant while they were all still on the platform.

[82] Not only is the platform aggression attributed to the defendant by Jessett inconsistent with Edwards' account, it is also almost entirely contradicted by the video record of the same events. Neither of the two CCTV cameras is focused on the area between platform 5 and the shelter where the initial exchange between the officers and the defendant is said to have occurred. However, from the time the defendant turns the corner of the shelter heading north and until the moment (seconds later) when Jessett pulls him off platform 4 and onto the track bed, the defendant and the two officers are clearly visible on the DVR. Significantly, and contrary to the evidence of both officers, the defendant is not running as he turns the corner of the shelter. He and the officers are walking beside each other. Their pace appears normal. There is no pursuit. There are no signs of agitation. Jessett is not hanging on to the arm of a racing fugitive.

[83] The video images display the defendant standing just in front of Jessett. He suddenly breaks towards platform 4. He does not push aside or run through either officer. Jessett immediately gives chase. The defendant turns his head to check the officer's position. He does not raise either arm in Jessett's direction. He does not swing or throw a punch at Jessett. He continues to run, turning west as he approaches the track bed. Jessett does not make physical contact with the defendant until they are at the edge of platform 4. Edwards is still considerably behind his partner as Jessett steps onto the track bed, turns and pulls the defendant after him.

[84] Put simply, I reject Jessett's evidence that the defendant pushed by or through him, dragged him along the platform, and threw a punch in his direction. These allegations are not supported by Edwards. They are contradicted by the video record. Whether a product of faulty memory or a tendentious and self-serving accounting, Jessett presents as an unreliable witness. His creditworthiness is profoundly compromised.

[85] Insofar as it impacts on one of the two charges naming Jessett as a complainant, the reliability of Cst. McClure is also at issue. McClure, as earlier summarized, first joined his two colleagues when they were already on the tracks. He testified that he there witnessed the defendant, while on his back, throw closed-fist punches towards Jessett's face. Although he was not struck, Jessett, he said, was in a position to observe these blows. McClure's inability to locate this exchange on the DVR is unsurprising given the poor video resolution and fluid mélange of bodies. More disturbing is that neither of the other officers testified to the defendant ever trying to punch Jessett on the track bed. Edwards hovered over Jessett and the defendant as they lay on the ground. And Jessett, in my view, would not have neglected the opportunity to ascribe any aggressive conduct to the defendant. Yet both Jessett and Edwards are silent as to any punching on the track bed.

[86] In the end, I simply cannot accept McClure's evidence in regard to this incident. This finding directly affects the count charging the defendant with assaulting Jessett with intent to resist his lawful arrest. As I comprehend the evidence (and here assuming a lawful arrest), there are four allegations from which one may infer that the defendant assaulted Jessett. The first is Jessett's claim that the defendant pushed by or through him as he initially began to run away. This assertion, as I have already indicated, is not confirmed by Edwards and is belied by the video record. The second is Jessett's allegation that the defendant turned and threw a punch in his direction as he ran towards platform 4, a claim again inconsistent with both Edwards' and the clear video evidence. The third is McClure's unconfirmed contention, which I cannot credit, that the defendant punched at Jessett's face while lying on the track bed. And the fourth is Jessett's allegation, ultimately recanted, that the defendant repeatedly kicked him during their final exchange. Accordingly, even were the arrest of the defendant lawfully grounded I am not satisfied that the essential assault component of the charge of assaulting Jessett with intent to resist that arrest is adequately made out.

[87] Were I satisfied that the defendant did assault Jessett, the successful prosecution of this charge, like two other counts, would then depend on the lawfulness of the defendant's arrest, the issue to which I now turn.

[88] I have already rejected Jessett's claim that he placed the defendant under arrest at platform 5 as the defendant, on the officer's account, tried to run past him. While Jessett may well have commanded the defendant to stop as he pursued him to and off platform 4, I find that the first words of arrest were those uttered by Edwards as he joined Jessett and the defendant on the track bed. Edwards never told the defendant why he was being arrested. Most importantly, I conclude that there was no objectively reasonable basis for the defendant's lawful arrest and, by necessary implication, for any custody that followed.

[89] As should be patent, the Crown's abandonment of the charge of mischief is not a prosecutorial concession that the transit police did not have a lawful basis to arrest the defendant for this offence. I accept that the officers subjectively believed that the defendant's effort to open the closed doors of the train carriage amounted to the offence of mischief. I cannot, however, accept that they had reasonable grounds for this belief.

[90] There are two evidentiary accounts of the defendant's conduct at the side of the 939: Jessett's and Edwards'. Both officers testified to seeing the defendant with his arms extended toward carriage doors as the train pulled out of the station. From there, their evidence sorely diverges. Jessett did not see the carriage doors part. As the train lurched to an abrupt stop, he inferred that the defendant must have pried the doors open, thus engaging a safety feature that halted the train's progress. The train stopped for some one to two minutes, and was still stationary when Jessett reached the defendant outside the carriage doors. Edwards' recall is coherent, unhesitant and radically different. He claims to have observed the defendant push the doors of the moving train slightly ajar for a few seconds. The train did not stop. It did not slow down. Its progress was not delayed.

[91] For reasons I have already canvassed, I have serious doubts about Jessett's testimonial reliability and the veracity of his account. There are also reasons to suspect Edwards' credibility and, thus, his version of the precipitating events. However, accepting Edwards' account as a valid recital, it still fails to make out, in the language of s. 495(1)(a), reasonable grounds to believe the defendant committed or was about to commit the offence of mischief. At bottom, there was simply no obstruction, interruption or, as particularized in the now-dismissed mischief count, 'interference" with the lawful use, enjoyment or, again as particularized, "operation" of the GO train. Nor, given their appreciation of all the surrounding circumstances, was there any objective foundation for the officers to reason otherwise. Further, there was no reasonable basis, on Edwards account, to conclude that the defendant was "about to commit [the] indictable offence" of mischief as the train had uninterruptedly chugged out of Union Station by the time Jessett began his interrogation.

[92] Again: the train's progress was not delayed. The defendant's impugned conduct comprehends neither the "obstruction" nor "interruption" of the 939. In my view, the concept of "interference", as it is used in s. 430, is equally unimplicated. The word "interfere" carries the dictionary meaning of "obstruct", "hinder" or "disturb". (See, for example, Black's Law Dictionary, 8th Ed., 2004 and the Canadian Oxford Dictionary, 2nd Ed., 2004.) What little judicial authority there is on this point tends to support this construction. In addressing the word "damages", as employed in clause (1)(a) of s. 430, the Court of Appeal, in R. v. Jeffers, 2012 ONCA 1, 280 C.C.C. (3d) 54, at para. 18, held that,

To criminalize mischief, the damage must be more than negligible, more than a minor inconvenience. To prove damage the Crown must show that the usefulness or value of the property has been impaired, at least temporarily.

(See also, R. v. Quickfall, 78 C.C.C. (3d) 563 (Q.C.A.), at 566.) In my view, the word "interference" in clause (c) of the same subsection bears a parallel connotation. The offence of mischief, in short, is concerned with the consequential. Absent some tangible impairment in the intended use, application, functioning or purpose of the property at issue – here the last train out of Union Station – there is no cognizable mischief. On the basis of Edwards' evidence, the GO Transit officers could not have apprehended any impairment of the train's operation. As a result, there were no reasonable grounds for the defendant's arrest. Given the proportionate force used by the defendant, it follows that his resistance to his unlawful arrest – whether cast as an assault, obstruction or escape – does not amount to any of the offences charged.

[93] If only in passing, I note a number of interrelated issues, factual and legal, potentially arising from the claim that the defendant, if not arrested on the platform, was subject to an investigative detention. Neither counsel elected to explore this concern or incorporate it into their legal analysis. Their submissions, instead, focused on the legal propriety of the defendant's arrest. I defer to counsel's definition and framing of the lis.

D. CONCLUSION

[94] With the advantage of hindsight, it is easy enough to say this prosecution could have been wholly avoided had the defendant been more cooperative. A less zealous approach by the transit officers could similarly have voided the need for a trial. "If onlys" are not the stuff of criminal trials. For the reasons just set out, I find the defendant not guilty of the five charges upon which he was arraigned. Acquittals follow.

E. AFTERWORD

[95] Trials, as they say, are not a tea party. That hackneyed metaphor is here particularly apt. Mr. Midanik is well known as a counsel as aggressive and combative as he is dedicated to his clients. He honoured his reputation in these proceedings. Mr. Cruess was a worthy opponent, ably fulfilling his twin roles as a minister of justice and a strong advocate for the Crown. He never allowed Mr. Midanik's occasional provocations to intimidate him or deflect him from his fair and vigorous prosecution of the case. While I rarely offer more than perfunctory comment on the performance of counsel, both earn my commendation for the service they afforded the parties to these proceedings.

Released on April 24, 2015

Justice Melvyn Green