Court File and Parties

Ontario Court of Justice

Date: February 27, 2017

Court File No.: Old City Hall 15-15014110

Between:

Her Majesty the Queen

— and —

Davin Bartsch

Before: Justice J.M. Ritchie

Heard on: February 14, 2017

Reasons for Judgment released on: February 27, 2017

Counsel

S. Fericean — counsel for the Crown

J. Griffiths — counsel for the defendant Davin Bartsch

Judgment

RITCHIE J.:

[1] Davin Bartsch is accused of assaulting Donald Claudio, a peace officer engaged in the execution of his duty, in Toronto on February 4, 2015.

[2] The fact situation is not complicated. Shortly before 11:30 p.m. on February 4, 2015, Davin Bartsch broke into the Galaxy Donuts store at 1228 King Street West in Toronto and stole a large quantity of cigarette packs. Mr. Bartsch left the scene, and he was followed by a civilian who called the police. The police easily located Mr. Bartsch. Within five minutes of receiving the radio call, Officer Donald Claudio of the Toronto Police arrested Mr. Bartsch. He resisted arrest by trying to run away and by struggling to prevent the police officers from handcuffing him. He refused to identify himself, and he was generally uncooperative with the police. A large quantity of cigarette packs were seized from Mr. Bartsch's backpack.

[3] Mr. Bartsch subsequently pled guilty to the break and enter, and all of the charges against him were resolved, except for count 4. Count 4 is the allegation that Mr. Bartsch assaulted Officer Claudio, a peace officer engaged in the execution of his duty. The incident giving rise to that charge occurred after Mr. Bartsch's arrest.

[4] After Mr. Bartsch had been arrested and brought under control at about 11:30 p.m. on February 4, 2015, Officer Claudio and his partner, Officer David Hain, took Mr. Bartsch to Galaxy Donuts to continue their investigation. Officer Hain went inside to check the premises. Officer Claudio testified that the defendant became very agitated. He kept kicking the police vehicle and trying to leave. Mr. Bartsch was trying to get out of the vehicle, and the officer was trying to push Mr. Bartsch back into the vehicle. The defendant was also kicking at the officer. Officer Claudio testified that Mr. Bartsch then bit his left hand and the officer punched him in the head.

[5] Three police officers testified that Mr. Bartsch continued his violent, abusive and belligerent behaviour (including yelling, swearing and kicking) until they put leg shackles on him. While on route to the police station, Mr. Bartsch banged the back of his head against the plexi-glass separator in the vehicle 20 to 30 times. Officer Claudio went to a hospital to have the cuts on his hand treated.

[6] Mr. Bartsch testified that the evidence of the three police officers was substantially accurate, except that he did not bite Officer Claudio – the officer cut his hand on Mr. Bartsch's sharp, broken tooth when he was hitting Mr. Bartsch in the face. Also, Mr. Bartsch did not agree that Officer Claudio was alone at the time – he said that another police officer was present.

[7] The main issue in this case is the credibility and reliability of the testimony regarding how Officer Claudio sustained his injury. The officer and Mr. Bartsch testified to two different versions. A total of four witnesses testified at this trial – three police officers for the Crown, and Mr. Bartsch elected to testify.

[8] At the outset, I want to thank Counsel for their expeditious and professional handling of the trial. The evidence and submissions were thoroughly and competently presented on both sides.

Credibility Assessment

[9] I found the testimony of the three police officers to be detailed, honest and straightforward. On cross-examination, Officer Claudio said "There was no misunderstanding. He clamped down on my hand. It was painful. My reaction was to punch him to get him to release [my hand]." Officer Claudio's description made sense, in the context of all of the evidence. There was a ring of truth to Officer Claudio's testimony, for example, when he said that Mr. Bartsch was kicking at him - the officer mentioned that he had his body half-turned so that he would not be kicked in the genitals. The police officers (and Officer Claudio in particular) were not shaken on cross-examination. They (and Officer Claudio in particular) gave consistent testimony, and I did not detect inconsistencies between the evidence they gave. I accept the testimony of Officer Claudio and the other police officers.

[10] I do not accept Mr. Bartsch's version of how Officer Claudio was injured. First, I note that Mr. Bartsch had been on a seven-day binge involving alcohol and drugs. He said that his wife had left him after 10 years, and he was intoxicated. He could not remember how much alcohol and drugs he had consumed on the day in question. He remembered consuming a lot of beer and some crack cocaine that evening, but he said "I forget how much I had". Mr. Bartsch was also very belligerent and physical with the police, which was indicative of his state of inebriation. His recollections respecting how Officer Claudio sustained his injury were not reliable, in my opinion.

[11] Second, Mr. Bartsch testified that Officer Claudio was punching him and the officer's hand slipped and was scratched by Mr. Bartsch's sharp, broken tooth. Exhibit 1 consists of three photographs of the officer's injury and, in my opinion, it is a bite mark and not a slash from a broken tooth. Mr. Bartsch also said that Officer Claudio was "hitting me in the front of my face". The officer is a fairly big and powerful man, in my opinion. Mr. Bartsch would not be unmarked if this police officer had been punching him in the face. Officer Claudio thought that the one punch he did throw had landed more on the side of Mr. Bartsch's head. In the photograph that was filed as Exhibit 3, Mr. Bartsch's face was unmarked. His version was not believable, in my view.

[12] I should mention that Mr. Bartsch had a scrape on his forehead in the photograph (Exhibit 3). Mr. Bartsch explained that it was the result of an upholstery burn that he had sustained when Officer Franco Umbrello was holding Mr. Bartsch's head against the back seat of the police vehicle in an effort to bring him under control. I agree that that was probably the cause of the scrape, in light of all of the evidence. Mr. Bartsch also said that the scrape was "not as bad as it looks [in the picture]".

[13] I should also mention Mr. Bartsch's dog, since the issue was canvassed at some length at trial. Mr. Bartsch testified at first that he was acting up because his dog was at home alone and needed to be looked after. As it turned out, Officer Hain is a dog owner and he said that arrangements could be made to help the dog. However, Mr. Bartsch continued his belligerent, violent conduct. He could not explain why, except to say that he suffers from post-traumatic stress disorder and anxiety and panic attacks (allegedly, at least in part, the result of mistreatment by police on earlier occasions).

[14] I indicated above that Mr. Bartsch said a second police officer was present when Officer Claudio's hand was injured. Officer Claudio had said that he was alone at the time and then Officer Umbrello came and then Officer Hain came. Officer Claudio's evidence on this point was corroborated by the testimony of the other two police officers. This is a small and inconsequential issue, and I have already stated my conclusions regarding the credibility and reliability of the testimony at this trial.

Conclusion

[15] In conclusion, a person who struggles with and kicks at a police officer who has arrested him or her is committing an assault upon a peace officer engaged in the execution of their duty. I agree with the Crown Attorney that Mr. Bartsch's conduct constituted an assault, even apart from the bite. However, I find in addition that the defendant did bite Officer Claudio's hand. Based on the evidence, Mr. Bartsch had no justification or valid reason or valid excuse for acting in a violent, abusive and belligerent manner towards the police officers. By contrast, Officer Claudio acted with great restraint and professionalism and, throughout the incident, threw only one punch for the purpose of getting the defendant's teeth off of his hand.

[16] I considered Mr. Bartsch's testimony in the context of the evidence as a whole, in accordance with the second step of the ruling in R. v. W.D. The defendant's testimony does not leave me with a reasonable doubt.

[17] In all criminal prosecutions, the burden rests solely on the Crown to prove all elements of an offence beyond a reasonable doubt. The onus does not shift to the defendant under any circumstances. If a reasonable doubt exists at any time, the defendant must be acquitted.

[18] I have considered the totality of the evidence and the submissions of Ms. Griffiths and the Crown Attorney. I am satisfied that the Crown has discharged the burden upon it. There will be a finding of guilty.

Released: February 27, 2017

Signed: Justice J.M. Ritchie