Court File and Parties

Date: April 26, 2017

Court File No.: 15-6668

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kudo Park

Before: Justice Robert S. Gee

Heard on: December 1 & 2, 2016 and February 2 & 3, 2017

Reasons for Judgment Released: April 26, 2017

Counsel:

R. Shallow for the Crown

G. Clewley for Kudo Park

Judgment

GEE, J.:

Introduction

[1] The accused in this matter, Kudo Park, is a Hamilton Police officer. At the time of the incident that has led to him facing this charge, he had approximately two years policing experience.

[2] The complainant Thomas Schonberger, is a Hamilton resident of Native heritage who, at the time of the incident, was 35 years old, 5'6" tall and weighed approximately 110 lbs. Mr. Schonberger unfortunately suffers from paranoid schizophrenia. He also has a history of alcohol and marijuana abuse, and struggles with an acquired brain injury as a result of being struck by a car when he was a child.

[3] At the time of the incident Mr. Schonberger had a youth and criminal record spanning from 1996 to 2011. He had three assault convictions and a possession of a weapon conviction from 2004. Additionally there were property offences interspersed throughout the years.

[4] The incident that led to Officer Park being charged occurred on a King Street sidewalk in downtown Hamilton on April 17, 2015. At some point during his detention by the police that evening, Mr. Schonberger's right cheek was fractured which ultimately required surgery to repair. During the course of Mr. Schonberger's arrest, Officer Park punched him in the face three times, once immediately after Mr. Schonberger spat on Officer Park, then two more times after Mr. Schonberger was taken to the ground as a result of this spitting incident. It is alleged one of the punches inflicted by Officer Park caused Mr. Schonberger's injury.

[5] It was not until the next day, April 18, 2015 that the extent of Mr. Schonberger's injury became known. Once it did, the Special Investigations Unit (the "SIU") commenced an investigation that resulted in Officer Park being charged with Assault Causing Bodily Harm.

Issues

[6] The Crown has conceded that the detention and arrest of Mr. Schonberger that evening by the police was justified and lawful, and that Officer Park was acting within the course of his duties as a police officer. As such Officer Park is afforded the protections available to him pursuant to s. 25 of the Criminal Code. The Crown has also conceded that the initial punch delivered by Officer Park was, in the circumstances, reasonable. It is the latter two punches that the Crown alleges were excessive, and it is the Crown's further position that it was one of these punches that caused Mr. Schonberger's injury. Further, the defence has admitted that the injuries suffered by Mr. Schonberger constitute bodily harm.

[7] Given these admissions, the issues that must be decided in this matter are:

1. Were the latter two punches delivered by Officer Park to Mr. Schonberger during the course of his arrest reasonable in the circumstances; and if not

2. Did either of those two punches cause Mr. Schonberger's injury?

The Facts

[8] The facts in this matter are, for the most part, not disputed. Of the eleven witnesses who testified at trial, eight were present at the scene while the events unfolded. Mr. Schonberger was one of these eight witnesses. All of the remaining seven witnesses at the scene were police officers except one, who was an auxiliary officer who happened to be on a ride-along with Officer Park that night.

[9] Officer Park was one of these seven police witnesses who testified. In addition to his testimony, I have the benefit of his statement to the SIU which was admitted on the consent of the parties.

[10] For the most part, the testimony of these eye witnesses was fairly consistent as to how the events of that evening unfolded. There were some minor or subtle differences in the testimony, most of which were not of great importance in the end.

[11] Although I have considered the evidence of all the witnesses, I do not propose to give a detailed recitation of the testimony of each person who testified. These reasons are meant to reflect the pathway I followed to reaching my decision in the matter. In order to help me demonstrate the path I took, I will touch upon and discuss the evidence of the witnesses as necessary.

[12] The incident started with a 911 call to the Hamilton Police at about 8:15 p.m. on April 17, 2015. The caller advised there was a man walking in the area of King and Queen Streets in downtown Hamilton, with a dog, while waving a butcher knife. As would be expected with a call like this, numerous members of the Hamilton Police immediately responded to the call and headed directly to the area.

[13] The first to arrive on scene was Acting Sgt. Lisa Chambers. Upon arrival she engaged with the person who turned out to be Mr. Schonberger. Very shortly thereafter Constable Jaimi Bannon arrived on scene. Upon her arrival she stated Acting Sgt. Chambers had her Taser in her right hand pointed at Mr. Schonberger. In her left hand she was holding the chain to Mr. Schonberger's dog. Mr. Schonberger was on the sidewalk with his hands up. To assist, Constable Bannon retrieved the dog and took it aside, as it was excited and was being somewhat unruly.

[14] Acting Sgt. Chambers was then able to cuff Mr. Schonberger's hands behind his back. She asked him if he had a knife and he replied he did, in his pocket. Acting Sgt. Chambers retrieved the knife from his pocket and placed it, along with some other personal items, on the trunk of her cruiser. To this point Mr. Schonberger had been cooperative and compliant with the police.

[15] At about this time Officer Park arrived on the scene with Auxiliary Officer Stephen Gardner who was on his first ride-along with the police that night. Officer Park went to assist Acting Sgt. Chambers while Auxiliary Officer Gardner stood back, nearer to Constable Bannon, to stay out of the way and to observe.

[16] Officer Park stood to the left of Mr. Schonberger and attempted to engage him in conversation by asking his name. At this point Mr. Schonberger went from being compliant to being belligerent. He began using any number of vulgarities and became verbally threatening to the officers. Then, without warning, he reared his head back and spat in Officer Park's face. There was a large quantity of saliva that went into Officer Park's eyes and mouth.

[17] As a reaction to this and to prevent him from spitting again, Officer Park immediately punched Mr. Schonberger in the face with a closed fist. Acting Sgt. Chambers and Officer Rebecca Moran, who had arrived at the scene at about the same time Officer Park was spat upon, then took Mr. Schonberger to the ground.

[18] It is what happened over the ensuing few seconds to a minute that resulted in Officer Park being charged. After Officer Moran and Acting Sgt. Chambers grounded Mr. Schonberger they were attempting to contain him while he continued to struggle. At some point, while he was on the ground with his hands still cuffed behind his back, Officer Park joined and delivered two more closed fist punches to Mr. Schonberger's face. After doing so, Officer Park disengaged and Officer Moran, Acting Sgt. Chambers and Officer William Kapitanchuk, who by then had arrived on the scene, lifted Mr. Schonberger from the ground and placed him in a cruiser.

[19] Mr. Schonberger was described as continuing to be uncooperative and belligerent. Some of the witnesses stated while in the cruiser he was lashing out and banging his head off the Plexiglas divider between the front and rear seats. He remained uncooperative and belligerent upon arrival at the police station. In the sally port, the door to the cruiser was opened but no officer assisted him due to his behaviour. Eventually he rolled out on his own and fell onto the ground. Once in the station, his behaviour remained unchanged throughout the booking procedure and continued into the cell where he was lodged.

[20] Officer Park also returned to the station to retrieve his health card and then attended at the hospital to be assessed and treated for any communicable diseases he potentially contracted from Mr. Schonberger's saliva.

[21] The next day, April 18, 2015, Mr. Schonberger was taken by the police to the hospital to have tests done to determine if he had any communicable diseases. It was during this procedure that the physicians treating Mr. Schonberger, noticed the injuries to his face. After taking x-rays, it was discovered that Mr. Schonberger had sustained fractures in his right cheek, resulting in a piece of floating bone. A plastic surgeon was consulted and ultimately Mr. Schonberger had surgery to repair the fractures, and to prevent the floating piece of bone from causing further complications.

[22] It was after the discovery of the extent of Mr. Schonberger's injury that the SIU was notified and commenced their investigation. The SIU interviewed the persons involved, including as noted, Officer Park, who, on June 8, 2015 provided a cautioned and videotaped interview in the presence of his counsel.

The Law

[23] As noted, s. 25 of the Criminal Code provides a measure of protection for police who use force when carrying out their duties in circumstances where, absent that protection, their use of force may otherwise be an offence.

[24] What the section provides is this; s. 25(1) "Every one who is required or authorized by law to do anything in the administration or enforcement of the law…as a peace officer… is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose."

[25] The protection though is not unlimited. It is circumscribed by the concepts of proportionality, necessity and reasonableness. Justice LeBel in the case of R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 32 described the limits on police use of force thusly: "…police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences."

[26] The use of force resorted to by the officer will have both a subjective and objective component to it. The officer must honestly believe both, that the force is necessary and the amount used is a measured response to the situation, and that belief must be objectively reasonable. (See paragraph 34 of Nasogaluak).

[27] However, as Mr. Clewley ably points out, I need to be on guard against too harshly and critically re-examining the actions of a police officer from the safe confines of a court room, many months later, with the luxury of time on my side to consider the varied circumstances that no doubt made up what in most cases was a dynamic, quickly evolving situation. Or to put it in the vernacular, I have to guard against Monday morning quarterbacking.

[28] Courts are required to keep in mind the totality of the circumstances as faced by the officer. Allowances ought to be made for the exigencies of the situation and recognize that in those moments, misjudgments or mistakes can be made, and when they are, the protections afforded an officer are not automatically forfeited. It is not appropriate to expect or judge the police to the standard of perfection. In this regard see: Chartier v. Greaves, [2001] O.J. No. 634, R. v. Canada (Royal Canadian Mounted Police) (also cited as R. v. Bottrell), [2001] B.C.J. No. 855 and R. v. Eyo, [2012] ONCJ 274.

[29] In R. v. Walcott, [2008] O.J No 1050, the court sets out a number of factors that should be considered when assessing the reasonableness or necessity of police use of force, including whether:

(i) the suspect was acting in a hostile manner towards the police, resisting arrest, or failing to comply with an officer's arrest procedure;

(ii) the relative sizes and weights of the officer and the suspect;

(iii) the officer was at risk of harm;

(iv) the police knew the suspect had a history which might represent a threat to them; or,

(v) the police understood that weapons might be on the premises.

[30] Furthermore, since Officer Park testified it is always wise to remind myself as Justice Cory stated in R. v. W.D., [1991] 1 S.C.R. 742, that if I believe his evidence, I must acquit. Further, even if I do not believe his evidence I still have to acquit him if I have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole. Finally, even if I do not believe him and am not left in a state of reasonable doubt by his evidence, that is still not sufficient. This is not a contest between two competing versions of events in which I am tasked to choose the more believable one. The only pathway to conviction if I do not believe Officer Park, and am not left in doubt by his evidence, is if I am convinced beyond a reasonable doubt as to his guilt based on the evidence I do accept.

Analysis

[31] The positions of the parties are straightforward and fairly easy to articulate.

[32] The Crown position is that as noted earlier, the first punch delivered by Officer Park to Mr. Schonberger immediately after he spat in Officer Park's face was reasonable, within the parameters of s. 25 of the Criminal Code and as such does not expose Officer Park to criminal liability. However, the Crown position in relation to the other two punches thrown by Officer Park, while Mr. Schonberger was on the ground and handcuffed behind his back, is, that neither of those two punches were, in the circumstances, reasonable or necessary. Although Mr. Schonberger was non-compliant and resisting, the situation was under control by Acting Sgt. Chambers and Officer Moran, and given that, the blows delivered by Officer Park then were not done as a distractionary technique as he claims, but were done in retribution for spitting in his face.

[33] If the Crown is correct, s. 25 of the Criminal Code is inapplicable and Officer Park has committed an offence. Which offence he has committed would turn on whether I am satisfied that either of the two blows caused Mr. Schonberger's injury. If I am so convinced he would be guilty of assault causing bodily harm, as he is charged. If I am not convinced beyond a reasonable doubt that one of these two blows caused Mr. Schonberger's injury, then Officer Park ought to be found guilty of the lesser and included offence of assault.

[34] The position of the defence is just the opposite. Mr. Schonberger was belligerent, non-compliant and out of control. Acting Sgt. Chambers and Officer Moran were not capable of gaining control, and notwithstanding that his hands were cuffed behind his back, Mr. Schonberger still posed a threat to the officers by continuing to spit on them, or, in some other manner. As such, in all the circumstances, Officer Park delivered two quick blows to Mr. Schonberger's face to distract him and allow control of him to be gained. In the circumstances as presented, his actions were reasonable and in no manner excessive. As such s. 25 of the Criminal Code protects him from any criminal liability.

[35] Turning to the issues in this matter, the first is whether these two punches delivered by Officer Park to Mr. Schonberger while he was on the ground were reasonable.

[36] Officer Park testified that immediately upon Mr. Schonberger spitting on him, he delivered the first punch to his face. At that point Mr. Schonberger was grounded by Acting Sgt. Chambers and Officer Moran. Officer Park testified he did not take part in the grounding. He took a moment to wipe his face, and although he still had spit in his eyes and mouth, he noticed Mr. Schonberger being very non-compliant and completely out of control. He stated he believed Acting Sgt. Chambers and Officer Moran were unable to control Mr. Schonberger, so he joined them on the ground. At this time he testified Mr. Schonberger was yelling, swearing, foaming at the mouth and making sounds as if to spit again.

[37] Officer Park was concerned Mr. Schonberger would assault the officers either by spitting again, head butting them, or biting them. As a result he delivered his two quick punches to Mr. Schonberger's face to distract him. After delivering these blows, he stated the blows were successful as he thought the threat had been eliminated, so he got up from the ground and moved away to clean the remaining saliva from his face. This ended Officer Park's interactions with Mr. Schonberger. He estimated from the time of the initial spitting until he disengaged from Mr. Schonberger after the two punches, was approximately 20 to 30 seconds.

[38] In considering Officer Park's evidence and assessing it in the context of the evidence as a whole, I find that I neither believe Officer Park's explanation for his actions nor does it raise a reasonable doubt. I find that in the circumstances the two punches at issue were neither necessary, nor do I accept that Officer Park delivered them for the distractionary reason he claims. I find the reason for these punches is as the Crown argues, retribution for Mr. Schonberger spitting in his face.

[39] In explaining my reasons for arriving at this conclusion, I will start by saying that the evidence and actions, or lack thereof by other officers at the scene, formed a significant part of the reasons for reaching my conclusions. However, I have also been careful in assessing their evidence and actions, not to let it overtake the analysis. I acknowledge that the actions or lack of actions, by other officers present, is not alone determinative of whether Officer Park acted reasonably. Having said that, their actions or lack thereof, can be informative and form part of the analysis when making such an assessment.

[40] As said earlier, I do not accept the explanation given by Officer Park for the reason he delivered the two punches while Mr. Schonberger was on the ground. I do accept that when Mr. Schonberger was on the ground, he was non-compliant and resisting. I do not believe though that he was so non-compliant that Acting Sgt. Chambers and Officer Moran were unable to control him. I also do not believe he posed the level of threat Officer Park claimed.

[41] When assessing what was happening on the ground, it should be remembered that at the time Mr. Schonberger was approximately 5'6" tall and weighed about 110 lbs. He was slight in stature and his hands were cuffed behind his back. Additionally, the knife he carried had already been seized from him. Officer Park is also a person of smaller stature, as were both Acting Sgt. Chambers and Officer Moran. However Mr. Schonberger was outnumbered by police on the ground by 3 to 1, and when considering the other officers on the scene, he was outnumbered 6 to 1. As well, it was apparent from the outset to the officers arriving on the scene that Mr. Schonberger struggled with mental health issues. Moreover this was the first time any of the officers had dealt with Mr. Schonberger, so other than his behaviour on this day, they were unaware if he had any other history of violence.

[42] Acting Sgt. Chambers was called by the defence as a witness. She testified in chief that when on the ground Mr. Schonberger was out of control; she described him being at 10 if assessing it on a scale of between 1 and 10. She also said he was yelling and continuing to spit. Through cross examination though it was revealed that she had a hand on Mr. Schonberger's head and was controlling it and directing it away from her and Officer Moran to prevent him from spitting on them. She also testified what she and Officer Moran were doing at the time was sufficient to control Mr. Schonberger. Further, she testified that although she is trained to use as much force as she feels is necessary in dealing with a threat, she did not believe it was necessary for her to punch Mr. Schonberger to prevent him from spitting on her or the other officers.

[43] Officer Moran testified as well. She stated too that Mr. Schonberger was completely out of control while on the ground. I have difficulty accepting though that Mr. Schonberger was as out of control as she seems to imply. She testified that while she and Acting Sgt. Chambers were dealing with Mr. Schonberger on the ground she was helping and trying to keep him down. While doing so she testified she was also reaching for a pair of gloves that she keeps in her right cargo pocket, to put on. It seems incongruous to me that if he was as out of control as she wants me to believe, that she would risk releasing one of her hands from him in order to retrieve a pair of gloves which she would then presumably need both hands to put on.

[44] Additionally, no other officer made any attempt to assist while Acting Sgt. Chambers and Officer Moran were on the ground with Mr. Schonberger. Officer Bannon did have Mr. Schonberger's dog, but I note she did not feel the situation was serious enough to attempt to pass the dog to Auxiliary Officer Gardner, or anyone else, to hold so she could assist. In fact she testified that although distracted by the dog, when she saw Acting Sgt. Chambers and Officer Moran on the ground with Mr. Schonberger they had their weight on him and were holding him, and he was unable to move.

[45] Similarly, Officer Saad Kevall was also on scene near Officer Bannon. He testified that Mr. Schonberger was struggling on the ground. In addition to Acting Sgt. Chamber and Officer Moran on the ground, he noticed Officer Park as well. He went to assist but stated he did not get involved as, with three officers already dealing with Mr. Schonberger, there was no room for him. This too I have trouble accepting. If Mr. Schonberger was struggling as much as I am asked to believe, and posed such a threat, the lack of room would not prevent Officer Kevall from assisting his fellow officers. As Officer Park said in his SIU statement, the police are trained to protect themselves first, the public second and the accused third. If Officer Kevall saw his fellow officers struggling to control a suspect who was posing a threat and he was as close as he was to them, I believe he would help and not simply standby and watch due to a lack of room.

[46] Additionally, neither Acting Sgt. Chambers nor Officer Moran nor any of the other officers who witnessed the events on the ground, including Auxiliary Officer Gardner, claimed to have seen Officer Park deliver the two blows to Mr. Schonberger. This, I find, speaks to the quickness with which Officer Park joins the fray on the ground, delivers the two blows and then disengages.

[47] Officer Kapitanchuk, who is part of a mental health unit and who was paired with a civilian mental health worker, arrived after the incident on the ground had taken place. As he approached Officer Park had already thrown the two punches and disengaged from the situation. As such his evidence was not of any assistance in determining the events that took place leading up to Officer Park punching Mr. Schonberger while on the ground.

[48] Officer Park testified that after delivering his distractionary blows, he felt that the threat was eliminated. In his statement to the SIU his answer to the same question was similar but not quite as definitive. In his statement he stated he thought the distractionary blows, as he describes them, "eliminated or potentially eliminated the threat of him spitting on us again."

[49] However both his testimony at trial and his statement to the SIU are internally inconsistent. At trial, shortly after he claimed his distractionary blows eliminated the threat, he was asked if, while Mr. Schonberger was on the ground his actions ever changed, if he ever got calmer. Officer Park replied that he did not, "he was completely out of control, the worst I've actually ever seen."

[50] Similarly in his statement to the SIU, he was asked if while he was on the ground Mr. Schonberger ever calmed down and again Officer Park answered no. As well, his statement to the SIU was informative in another respect. After delivering his two blows, Officer Park states he disengages and cannot see what happens on the ground with the other officers and Mr. Schonberger because he is walking away in the opposite direction.

[51] It is for the reasons mentioned earlier, concerning the evidence of the other officers and that of Officer Park, that lead me to the conclusion that the blows were not for the purpose claimed by Officer Park. Had they been he would not have been so quick to disengage and walk away, and leave his two fellow officers to deal with Mr. Schonberger who, if I am to believe Officer Park, had not changed his behaviour, and was completely out of control, the worst he had seen.

[52] Officer Park had gone through a similar incident the previous year where he was bitten on the arm by a person being arrested. This was a significant incident and resulted in him taking a number of medications for precautionary reasons to prevent the contraction of any communicable diseases. These medications had unpleasant side effects and the emotional toll the uncertainty to his health and wellbeing took on him, was considerable.

[53] He now found himself potentially in a similar situation, and I find Officer Park was upset, lost control, and delivered the two blows while Mr. Schonberger was on the ground, as a form of retribution or payback for spitting in his face. As such the punches were what the court in Nasogaluak described as an illegitimate use of power by the police and as such are not protected by s. 25 of the Criminal Code.

[54] I should mention that in coming to this conclusion I have also considered the testimony of Paul Bonner, the expert called by the defence on police use of force. I accept, as he stated, that in certain circumstances, a punch to the head of a handcuffed detainee may be a justifiable use of force. However I did not find his evidence of much help as beyond that, he would only say it is up to the discretion of the officer to assess when the circumstances are present, that would justify the use of such force, and in any event I have found that in this case, those circumstances were absent, and the reason for the punches was for a purpose other than to effect an arrest or eliminate a potential threat.

[55] As a result of these findings, in punching Mr. Schonberger while he was on the ground as he was, Officer Park assaulted him. Whether that is the extent of his liability depends on if I am satisfied the Crown has proven either of those two punches caused Mr. Schonberger's injury.

[56] The person who would have the most compelling evidence as to the effect of the punches by Officer Park would of course be Mr. Schonberger. He testified at one point that it was the third punch that hurt the most and crushed his face. However his evidence in total was inconsistent and contradictory to other known facts. For instance he denied waving the knife and he denied spitting on Officer Park, even though he subsequently pled guilty to the charge. As well his recollection of the events was inconsistent and shifted at various times throughout his testimony. At one point he stated he was punched and taken to the ground. He then somehow got back to his feet then he was taken to the ground a second time. At other times he testified it happened more in a manner consistent with that of the other witnesses, however he was unsure which way it unfolded and thought his first version was most likely the correct one.

[57] Further compromising his testimony was the fact he had been consuming alcohol that day and also admitted his memory was suspect, likely affected by his mental health issues, as well as his brain injury and other health related problems that he struggles with.

[58] As a result I am unable to rely on the evidence of Mr. Schonberger in this or any regard. Even if I could, his perception of the pain caused by a particular blow would not necessarily correlate to the blow which caused the injury. Further, Officer Moran testified that on transporting him to the station, Mr. Schonberger was banging his head against the Plexiglas divider between the front and rear seats of the cruiser. Although it seems unlikely he would be banging his cheek into the divider, and it is likely one of the punches caused the injuries, given this I am unable to say with the degree necessary in a criminal trial, that it was one of the two punches delivered by Officer Park to Mr. Schonberger while he was on the ground that caused the injury.

Conclusion

[59] As a result of these findings, I am satisfied beyond a reasonable doubt that the Crown has proven that the two punches delivered by Officer Park while Mr. Schonberger was on the ground was not a reasonable use of force necessary to contain the threat posed by Mr. Schonberger, or to effect his arrest. They were, in the circumstances, excessive. Given this s. 25 of the Criminal Code is not available to shield Officer Park from criminal liability.

[60] However, the Crown has failed to prove that it was one of these two excessive blows that caused Mr. Schonberger's injury. As such Officer Park will be found not guilty of assault cause bodily harm as charged, but a finding of guilt will be made in relation to the lesser and included offence of assault.

Dated at Hamilton, Ontario

This 26th day of April 2017

The Honourable Mr. Justice R.S. Gee