Court File and Parties

Ontario Court of Justice

Date: 2017-03-13

Court File No.: Ottawa 15-DV6845

Between:

Her Majesty the Queen

— and —

Drew Anthony Brooks

Before: Justice P. K. Doody

Heard on: March 6 and 7, 2017

Reasons for Judgment released on: March 13, 2017

Counsel:

• Melissa MacDonald, for the Crown
• Susan Richer, for the defendant

DOODY J.:

Part 1: Introduction

[1] The defendant was charged with assaulting and uttering a threat to cause bodily harm to Nicole Baron on September 13, 2015; unlawfully confining Nicole Baron on September 15, 2015; and resisting two Ottawa Police Service officers, Cst. Eric Post and Cst. Paul France, in the execution of their duties on September 15, 2015.

[2] After the first witness had completed his examination in chief, Crown counsel asked me to dismiss the first three counts as there was no evidence to support them. Those charges were then dismissed and the trial continued on the remaining two counts of resisting the officers in the execution of their duty, contrary to s. 129(a) of the Criminal Code.

Part 2: Overview

[3] On September 15, 2015, the defendant was at the apartment of Nicole Baron, a woman with whom he had had an on and off relationship for many years. One or more 911 calls were placed, indicating that a black male was causing a disturbance and being very aggressive, and that there was a possibility of a domestic dispute.

[4] Constable Post testified, and I accept, that he arrived at the building in which the apartment was located at 12:20 a.m. after receiving a call for service which relayed this information. When he arrived on the scene, he saw a woman named Pauline, a cousin of Ms. Baron. She told him that Ms. Baron was in her apartment being beaten by her boyfriend.

[5] Cst. Post went into the building. He heard a male yelling inside an apartment. He could not tell what was being said but it was "quite heated". He knocked on the door of Ms. Baron's apartment.

[6] There is a discrepancy between the evidence of the defendant and Cst. Post as to whether the door was opened by the defendant or Ms. Baron. Cst. Post testified that Ms. Baron answered the door, while the defendant testified that while he believed that he was first at the door, it was possible that Ms. Baron opened the door before he got there. Defence counsel conceded in argument that it was probable that the officer's evidence was correct on this point. I find that the door was opened by Ms. Baron.

[7] Cst. Post testified that Ms. Baron was wearing a housecoat when she answered the door. He said that she was trying to hide her neck, but he saw significant bruises on her neck area. He could not recall the colour of the bruises but he indicated that there was discolouration. In cross-examination he described the bruises as "fresh". She stood in front of the door, indicating that she was not inviting him in to speak with her. He asked her what was going on. She was "very vague". He asked her who else was in the apartment and she told him that her boyfriend Drew (the defendant) was there as well. He asked her to tell the defendant to come to the door. I accept all of this evidence. I note that no contradictory evidence was led and Cst. Post was not cross-examined on any of these points.

[8] Cst. France, who was on general patrol, received the same call as did Cst. Post. By the time he arrived, Cst. Post was already at the door talking to the defendant. Ms. Baron was behind the defendant.

[9] Shortly after Cst. France arrived, the defendant attempted to slam the door. One of the two officers put his foot in the doorway, preventing the door from closing. The two officers reached into the doorway and grabbed the defendant. Cst. Post struck him with an open hand motion intended to stun him. He was forced to the ground outside the doorway, cuffed, and arrested.

Part 3: Issues

[10] Crown counsel submits that the defendant resisted the officers in the execution of their duty in three ways:

(a) by raising a closed fist and either gesturing or swinging at Cst. Post;

(b) by slamming the door; and

(c) by resisting the arrest by wriggling and being uncooperative when being thrown to the floor.

[11] I cannot accept Crown counsel's submission on the last point. I cannot conclude beyond a reasonable doubt, taking all of the evidence, including the defendant's, into account, that any resistance he offered while being thrown to the ground by two officers, each of whom was significantly larger than he was, was anything more than an instinctive reaction to being handled in that way.

[12] In order to determine the other two issues, however, I must review the law and the evidence.

[13] In doing so, I must follow the approach set out in R. v. W.(D.), [1991] 1 S.C.R. 742. Where there are credibility findings to be made in respect of evidence on a vital issue which, if true, would justify an acquittal, I must determine whether I believe that evidence to be true. If so, I must acquit. Even if I do not believe such evidence to be true, I must acquit if, after considering all of the evidence, I am left with a reasonable doubt as to whether it is true, for then I will be unsure and the Crown will not have proven the charge beyond a reasonable doubt. Finally, even if I do not believe such evidence and am not left with a reasonable doubt as to whether it is true, I must consider whether, on the balance of the evidence, the Crown has proven the elements of the charge beyond a reasonable doubt. I must not allow my lack of belief in the evidence of the defendant or which favours the defendant to affect my determination of this issue. (R. v. Kirlew, 2017 ONCA 171)

Part 4: The Law

[14] In order to obtain a finding of guilt on these charges, the Crown must prove beyond a reasonable doubt that the defendant resisted the officers in the execution of their duty. In the circumstances of this case, the Crown must therefore prove that:

(a) the defendant either raised a closed fist and gestured or swung at Cst. Post or slammed the door; and

(b) the purpose of doing so was to obstruct the officers in the execution of their lawful duties. (R. v. Tortolano, Kelly and Cadwell (1975), 28 C.C.C. (2d) 562 (Ont. C.A.))

[15] In R. v. Godoy, [1999] 1 S.C.R. 311, the Supreme Court explained that the police have authority and a duty to investigate a 911 call in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is significant enough to merit some intrusion on a resident's privacy interest. The intrusion must be limited to the protection of life and safety, and the interference with an individual's liberty must be both necessary and reasonable for that purpose. If the investigation can be carried out without entering the home with force, it should be so limited, but if it is necessary to conduct a forceful entry of the home, the police have that authority.

[16] The Court of Appeal has established that the same duty exists when the 911 call was from someone outside the residence in question rather than from the alleged victim. (R. v. Nicholls (1999), 139 C.C.C. (3d) 253)

Part 5: Analysis

(a) Were the police engaged in the lawful execution of their duty?

[17] Much was made at trial, by both counsel, as to whether the police officers had the authority to enter the apartment. Defence counsel submitted that because it was necessary for the police to put a foot in the door and reach inside the apartment in order to arrest the defendant, they had entered the apartment, and that it was not necessary for them to do so because the alleged victim, Ms. Baron, had already indicated that she did not wish to speak to them. Crown counsel submitted that the evidence of the officers met the necessity for exigent circumstances outlined in Godoy.

[18] In my view, it is not necessary for me to resolve this question. Both acts in issue – the alleged punch or gesture and the slamming of the door – were, if proven, carried out by the defendant before an officer put a foot in the door or reached in and grabbed the defendant. Put simply, there was no entry into the apartment before the alleged acts. It does not matter whether the police had the authority to enter.

[19] The issue is whether Cst. Post was acting in the lawful execution of his duty when he went into the apartment building, knocked on the door, asked to speak to Ms. Baron and the defendant, and then spoke to both of them; and whether Cst. France was acting in the lawful execution of his duty when he joined Cst. Post at the doorway to assist in these activities.

[20] There is no doubt in my mind that they were. They had been dispatched to the scene and told that one or more 911 calls were placed, that a male was causing a disturbance and being very aggressive, and that there was a potential domestic dispute. Cst. Post was told, after he arrived at the scene, that a woman was in the apartment being beaten by her boyfriend. As the Supreme Court held in Godoy, they had a duty to act to protect life and safety.

[21] It was the evidence of each of them, which I accept, that that is why they were at the door. Cst. Post testified that he was not satisfied with Ms. Baron's answers to his question, and that led him to ask her if the defendant was in the apartment and that he come to the door. Cst. France testified that when he arrived he thought that they were there for a domestic assault, and that it was his job to assist Cst. Post in investigating that possibility. I conclude that they were carrying out a lawful investigation, as their duty required them to do, in order to protect the life and safety of Ms. Baron.

[22] That investigation was not yet complete when the defendant was arrested. Although Ms. Baron had indicated that she did not wish to speak to the police, the police were not required to accept that as a termination of their investigation. This is particularly so in light of the bruises seen on her neck, the information Cst. Post had from Pauline, the yelling he had heard, and the vague nature of Ms. Baron's response.

[23] Nor were they required to accept the defendant's indication that there was no problem. As the Chief Justice wrote in Godoy at paragraph 21:

Should the police then take the word of the person who does answer the door, who might well be an abuser and who, if so, would no doubt pronounce that all is well inside? I think not.

(b) Did the defendant make an aggressive gesture or swing a punch at Cst. Post?

[24] The evidence was not consistent among Mr. Brooks, Cst. Post and Cst. France on this issue.

[25] Cst. Post testified that when he asked the defendant what was going on he "became irate" and swore at him. He said the defendant was agitated and aggressive. He tried to slam the door. Cst. Post braced the door with his foot, preventing the door from closing. He asked the defendant to come outside. He testified that the defendant refused to do so, raising his fist at him. Cst. Post testified "I am not going to wait to be hit – I can't". He said he tried to strike him in his ear with his open right hand, using a technique which compresses the liquid in the ear and puts the recipient off balance. He could not recall whether he succeeded with this attempt. He testified that, with him on one side of the door and Cst. France on the other, they were successful in forcing the defendant to the ground by grabbing his arm and using "kind of like a judo move". He said that when they first entered the doorway to grab him, they both got stuck in the door.

[26] Cst. France testified that when he arrived, Cst. Post was standing in front of the door and the defendant was inside the apartment at the door, yelling at his colleague. He said that during the course of the yelling, the defendant clenched his right fist and threw a punch at Cst. Post, just missing him. He said that this happened very quickly, taking about a half second or so. He testified that after the punch, Cst. Post struck the defendant with his open hand on the side of his jaw to stun him. Both he and Cst. Post reacted at the same time, both trying to get in the doorway at the same time and as a result getting wedged in. He testified that they then managed to get him to the ground and cuffed him.

[27] The defendant testified. He denied raising his fist at or punching Cst. Post. He testified that he and Ms. Baron were in the apartment when he heard a bang at the door. He opened the door to find a police officer there. He told the officer "nobody called the cops, what the fuck do you want?" He said the officers then kicked the door in, entered the apartment, grabbed him and threw him to the floor, kicked him three times and cuffed him.

[28] I cannot conclude that I believe the defendant's evidence on this point. The officers' evidence was somewhat consistent. I cannot conclude that the officers' evidence was not accurate.

[29] Nor, however, am I certain that the officers' evidence was accurate and the defendant's evidence inaccurate.

[30] Cst. France and Cst. Post did differ in their descriptions of the purported hand gesture or motion of the defendant, one saying it was only a gesture and the other saying that it was clearly a swing that did not connect. I would have thought that if the defendant had taken a swing at him, it would be hard to describe it as Cst. Post did.

[31] The demeanour of a witness is of only limited utility in determining credibility. Nevertheless, it is of some value. The defendant gave his evidence in a straightforward manner, as did Cst. France. Neither were shaken in cross-examination. There were no inconsistencies, either internal or external, with their evidence other than the defendant's stark denial by the defendant of the hand movement testified to by the police officers.

[32] Cst. Post, on the other hand, was a very poor witness. He gave the appearance of being emotionally involved with the incident. On more than one occasion, he appeared to have lost his temper with defence counsel during cross-examination. One of those occasions was when he was asked to describe exactly how he responded to the actions of the defendant. He became visibly angry, shouting "we can't lose – the police don't lose – I can't lose – if I lose the public is at risk". This attitude is consistent with him losing his temper when the door was shut in his face, prompting the takedown.

[33] I conclude that I am not sure whether a punch was thrown or a gesture made by the defendant. Consequently, I have a reasonable doubt on this point.

(c) Did the defendant slam the door?

[34] The question of whether the defendant slammed the door is quite different. All three witnesses – the defendant, Cst. Post, and Cst. France – testified that the defendant slammed or shut the door in the face of the officers. Cst. Post, as I have noted, testified that the defendant slammed the door in his face after he asked the defendant what was going on, and before he raised his fist at him. Cst. France testified that the defendant slammed the door on him and Cst. Post after he took a swing at Cst. Post. The defendant testified that he tried to shut the door on the officers as soon as he opened it, and that he had had no conversation with them before doing that. There can be no doubt that the defendant tried to shut the door on the officers.

(d) Was the purpose of the slamming of the door to obstruct the police in the execution of their duty?

[35] The defendant testified that he tried to close the door because he did not want to talk to the police. He also testified that he did not care whether Ms. Baron spoke with the police.

[36] The defendant knew that the police were there because of the argument and altercation he had had with Pauline, Ms. Baron's cousin, and others outside the apartment building just prior to the police arriving. He testified that Pauline and the others had torn the screen off Ms. Baron's door, yelling that they wanted Ms. Baron to come out. He and Ms. Baron then did so. He admitted that he was angry during that incident, yelling and swearing.

[37] Adam Stewart, an acquaintance of both Pauline and Ms. Baron, was one of the persons with Pauline when the defendant and Ms. Baron came outside the apartment building. He testified that the defendant and Ms. Baron were in an argument, with raised voices. He testified that he called the police because he did not want anyone to get hurt. I accept this evidence.

[38] The defendant admitted that it was "possible" that the police had been called by a neighbour because of that incident. I do not accept that he thought that it was only possible that that was the reason the police had been called. Nor am I in a reasonable doubt on this point. I find that he knew that that was why the police were there. The expressed concern by Pauline and some of those with her about Ms. Baron that led to them asking that Ms. Baron come out of the apartment, the loud and profane argument between the defendant and Ms. Baron on the street after she did so, and the short time between that incident and the arrival of the police at the door of the apartment while he was yelling at Ms. Baron made it obvious that the police were there to investigate and determine whether Ms. Baron was safe.

[39] Ms. Baron spoke to Cst. Post first, as I have indicated. I conclude that since the defendant was in the living room into which the door to the apartment opened, he was aware of that and heard Cst. Post ask her what was going on, and heard her respond in the very vague way described by Cst. Post. I accept Cst. France's evidence that when the defendant tried to close the door, Ms. Baron was standing behind the defendant.

[40] The defendant testified that he attempted to close the door because he felt it was his right to not talk to the police.

[41] He also testified that he did not care whether the police spoke with Ms. Baron. I do not believe this evidence. Nor am I left with a reasonable doubt on this point. He knew, as I have said, that they were there to investigate whether she was safe. He knew that the police had spoken to her and she gave vague answers which led the police to continue the investigation by talking to him. He also knew that if the door was closed, it would be more difficult for them to speak with her. I conclude that the defendant tried to shut the door in order to prevent them continuing their investigation by talking again to Ms. Baron.

[42] Had the door been successfully shut in their face, the police would have had the right and duty to enter the apartment. As the Chief Justice wrote in Godoy:

The fact that the appellant tried to shut the door on the police further contributes to the appropriateness of their response in forcing entry. As I have already discussed, the privacy interest of the person at the door must yield to the interests of any person inside the apartment. A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.

[43] I conclude that the Crown has proven beyond a reasonable doubt that the defendant tried to slam the door on them in order to resist them in the execution of their duty. I find the defendant guilty on both counts of resisting a peace officer in the execution of his duty.

Released: March 13, 2017

Signed: Justice P. K. Doody