Ontario Court of Justice
Date: 2016-07-12
Court File No.: Sioux Lookout 155787-01/155787-02
Between:
HER MAJESTY THE QUEEN
— AND —
PATRICK CLARA
AND
WALLY WOODS
Before: Justice Peter T. Bishop
Heard on: May 31, 2016
Reasons for Judgment released on: July 12, 2016
Counsel
Megan Cleland ........................................................................................ counsel for the Crown
Danny Gunn ............................................................... counsel for the defendant Patrick Clara
Mark Van Wallegham ................................................ counsel for the defendant Wally Woods
BISHOP J.:
Charges
[1] Patrick Clara stands charged on or about the 29th day of August, 2015 did without lawful authority confine Mathias Mitchell, contrary to Section 279(2) of the Criminal Code.
[2] Wally Woods stands charged on or about the 29th day of August, 2015 did without lawful authority confine Mathias Mitchell, contrary to Section 279(2) of the Criminal Code and further, on or about the 29th day of August, 2015 did assault Mathias Mitchell contrary to Section 266 of the Criminal Code.
Evidence of Constable Raymond Tessier
[3] Raymond Tessier is a constable with the Ontario Provincial Police and at the time of occurrence had approximately 8 months experience as a police officer.
[4] He received a call about a break and enter and attended at Mr. Clara's business, Buck Buster Video.
[5] He observed what appeared to be footprints on the door of the business and asked for footage captured on Mr. Clara's video camera.
[6] The next day, he re-attended at the video store and viewed a video on Mr. Clara's laptop showing someone trying to kick-in the door. The image was not very clear and he advised Mr. Clara that he would come back at a later date.
[7] Constable Tessier did not arrange to photograph the scene or document the scene or ask for a scenes of crime investigator and he did not try to capture any still images on the video. As well, he took no notes of what he saw on the video and did not make any efforts to measure the height of the individual shown on the video nor did he write down any details.
[8] Mr. Clara indicated that he would try and have his wife burn the video to provide to the police.
[9] Constable Tessier did not return to re-interview Mr. Clara as a result of this occurrence as a result of the matters before the court.
[10] Constable Tessier stated that he was told by senior official not to follow up.
Evidence of Constable Drew Sanderson
[11] Constable Sanderson has been an Ontario Provincial Constable for approximately 1 year.
[12] He received a call from Mr. Woods indicating that he wanted the Constable to look at a picture. Constable Sanderson attended at the Sunset Inn and saw what appeared to be a cell phone picture of a picture of someone in a hoody. Mr. Woods believed that this was the person who attempted to break into Mr. Clara's business.
[13] Constable Sanderson asked that a copy of the photo be emailed to him and that Mr. Woods contact him at a later date.
[14] Constable Sanderson made a late entry into his notebook on the following day indicating that he has no further connection or contact with Mr. Woods or Mr. Clara.
Evidence of Mathias Mitchell
[15] Mr. Mitchell was 26 years of age at the time of the occurrence and a member of Slate Falls First Nation.
[16] On August 29, 2016 he was at his parent's home having returned from the hospital. He was looking out of the upstairs window and he was asked to come down by both defendants.
[17] He did not recognize the defendants and thought they were looking for his brother.
[18] They showed a photo to Mr. Mitchell and accused Mr. Mitchell of being the person responsible for breaking a window at the store. Both of the accused told him that him he was under arrest and had to come with them to the police station.
[19] Mr. Mitchell was surprised as he described the accused as being "pissed off and mad". He went back into his house, put on his shoes dressed and followed the accused to a truck.
[20] He was confused and went with them but really didn't want to but felt he had to go.
[21] He was tense, shaky and nervous and felt scared.
[22] The accused drove directly to the police station and parked in front of the police station and Mr. Clara went into the police station and Mr. Woods stayed with him just outside the truck.
[23] They were all motioned into the police station by an officer.
Evidence in Cross Examination
[24] He stated that he was not sure if it was himself in the photo and when first asked to come down to talk to the accused one of them may of used his name "Matty" or simply said "hey you, I want to talk to you".
[25] He does not remember being told that he was seen on the video kicking in the door.
[26] He stated that he felt he had to straighten this out but he did not ask to get out of the vehicle and did not ask the accused to stop. He was not restrained and did not say I'm not going with you.
[27] He couldn't tell whether he was the individual in the photo shown too him but kept saying "I'm sorry, I'm sorry if I did it" and he could not remember what happened piece by piece.
[28] He also told the accused that if he did it he would pay or reimburse for the damage. He could not remember if he was at the bar the night before.
[29] They all went to the police station and eventually he was released and the accused were arrested for forcible confinement.
Evidence of Detective Constable Richard Cranton
[30] Detective Constable Cranton has two years' experience with the Ontario Provincial Police and was called back from Wash Court to the detachment as Constable Lennox was concerned about the accused making a citizen's arrest.
[31] He observed the accused visibly shaking and after reviewing the Criminal Code section with the accused, which turned out to be the incorrect section, he released Mr. Mitchell.
[32] He investigated the forcible confinement charge for six minutes and then charged both Mr. Clara and Mr. Woods with unlawful confinement.
Position of the Crown
[33] The Crown submits that the case has been made out beyond reasonable doubt as the accused told Mr. Mathews that he was under arrest and had to go down to the station.
[34] Mr. Mitchell did not want to go, appeared confused and scared and afraid of what might happen.
[35] The photo shown to him was not clear, and Constable Sanderson could not identify the individual in the photo.
[36] This is not a proper citizen's arrest under Section 494 of the Criminal Code, as the arrest was not made within a reasonable time after the offense was committed, and the accused did not have reasonable grounds to believe that it was not feasible in the circumstance for a peace officer to make the arrest.
[37] There was an on-going investigation and the accused took the law into their own hands.
Position of Patrick Clara
[38] The accused submits that he should be acquitted because no one can determine if the complainant tried to break into his business premises. There was really no on-going investigation by the Ontario Provincial Police and Mr. Clara believed he had the right to effect a citizen's arrest and he should not be deterred from so doing.
[39] There was no confinement as the complainant was free to walk away at any time. There were no threats, the complainant was afraid of the consequences and confused whether or not he in fact was the perpetrator of the offence.
[40] Mr. Clara believed that the complainant was the person in the photo and the police were not taking the matter seriously and were not investigating.
[41] The complainant went along voluntarily because he felt he had to do so and clear up matters.
[42] Constable Tessier had a real lack of interest in the investigation for the attempted break and enter and was instructed by superior not to follow up. There appears also to have been some animus between the Ontario Provincial Police and Mr. Clara from past complaints.
[43] The accused cannot be held accountable for criminal liability as wrongful arrests are made by police officers by mistake and they never will or never have been charged with forcible confinement. The accused believed that he had the lawful authority to effect a citizen's arrest and this was a voluntary attendance at the police station.
[44] With respect to Mr. Woods he simply states that there was no confinement by him or Mr. Clara and they never entered the accused's home. They spoke at the door and requested that he attend the police station as they believed he was the alleged perpetrator of the attempted break and enter.
[45] Both spoke to Mr. Mitchell at the door and he went back into his house and changed his clothes and came back out with the accused.
[46] Mr. Woods and Mr. Mitchell waited in the truck and were motioned into the police station by an officer.
[47] Mr. Woods believed he was acting properly and did not confine Mr. Mitchell.
Decision
[48] Both accused have elected not to call evidence and rely upon the high burden of proof on the Crown of proof beyond a reasonable doubt.
[49] At the end of the Crown's case the Crown requested the Court to withdraw the assault charge against Mr. Woods as there was no evidence that any assault took place. That request was granted.
[50] These are most unusual circumstances, I'm finding that Constable Tessier was a very inexperienced officer and took no reasonable steps to collect evidence in the attempted break and enter. He put the burden on Mr. Clara to produce evidence when Mr. Clara clearly indicated that he didn't know how to download or burn the images from his video camera.
[51] It appears that there was animus between Mr. Clara and the police because of prior occurrences. Constable Tessier never did follow up on the attempted break and enter and there is no evidence tendered by the Crown to show that that occurrence was properly investigated ongoing at the time of the accused engaged in their citizen's arrest. Constable Tessier was advised by someone, not named by him, to take no further action on the attempted break and enter.
[52] In all of the circumstances, I am finding that the Crown has not proven forcible confinement beyond a reasonable doubt for the following reasons:
There is no physical force or restraints used by either of the accused against the complainant, in other words a lack of evidence of the elements of forcible confinement.
The accused took the complainant directly to the police station and he was free to walk away at any time.
The complainant was unsure whether or not he was the perpetrator of the attempted break and enter and offered to make restitution if in fact he was but he too could not identify himself on the photograph shown to him.
The complainant was free to stay in his home, he changed his clothes, didn't call the police and went willingly with the accused.
There was no substantive or probative investigation completed by Detective Constable Cranton as his whole involvement in the case prior to laying the charges against the accused was six minutes.
Both Mr. Clara and Mr. Woods believed on reasonable grounds that the complainant was the perpetrator and acted because the police were not acting.
There is no evidence that the police ever did follow up on the attempted break and enter and in these circumstances it was not feasible for a peace officer to make an arrest as there was no investigation and an actual and apparent lack of interest on the attempted break and enter.
The complainant's nervousness and concern is equally attributed to him being the possible perpetrator of the attempted break and enter and concerns about personal consequences if in fact he was the culprit on the attempted break and enter. In summary, the complainant's credibility suffers because his behaviour and actions conflict with his verbal description of this event.
[53] For all of those reasons, a not guilty verdict will enter with respect to forcible confinement against both of the accused.
Released: July 12, 2016
Signed: "Justice Peter T. Bishop"