R. v. Onigbinde-Bey
Date: June 16, 2017
Ontario Court of Justice Old City Hall – Toronto
Court Information
Between: Her Majesty the Queen
And: Olarenwju Onigbinde-Bey
Counsel:
- J. Capozzi and S. De Filippis for the Crown
- Olarenwju Onigbinde-Bey on his own behalf
Heard: April 14 and September 14, 2016 and January 17 and April 4, 2017
Before: Melvyn Green, J.
Reasons for Judgement
A. INTRODUCTION
[1] A number of courtrooms at Toronto's College Park Courthouse are dedicated to criminal trials. Olarenwju Onigbinde-Bey was the defendant in one such trial on April 8, 2015. He is alleged to have used his mobile phone during a recess to film into the closed courtroom from an adjoining foyer. A court officer intervened. Onigbinde-Bey took offence. A physical altercation followed. Onigbinde-Bey was taken to the ground in the foyer, restrained by a number of officers, and ultimately arrested for his part in the altercation.
[2] In the result, Onigbinde-Bey was charged with two counts of assaulting police officers in the execution of their duty, two further counts of assaulting the same two officers (Phelleto Carpenter and Jean Marc Loiselle) with intent to resist his arrest, and, finally, with assault with a weapon, a wooden staff. This final count was withdrawn at the close of the Crown's case.
[3] Onigbinde-Bey, now the defendant before me, acted on his own behalf at his trial on the charges arising from the events at College Park. The Crown called four officers to the stand, including the two named victims of the defendant's alleged assaults. The defendant did not testify, nor did he call any witnesses. However, a recording of some of his interaction with the officers, as captured on his mobile phone, was introduced into evidence.
[4] As in all criminal trials, the Crown bears the onus of proof. To secure a finding of guilt with respect to any offence, it must establish each essential element of that offence beyond any reasonable doubt. The defendant, to be clear, has no evidentiary or legal burden. To the degree that there remains any reasonable doubt with respect to any count, it enures to the benefit of the defendant by way of an acquittal for that count. Conversely, proof of any count to the requisite legal standard results in a finding of guilt.
B. EVIDENCE
(a) Introduction
[5] No defence-led evidence directly contradicts that tendered through the Crown witnesses. However, the testimony of the four police officers' accounts diverge, sometimes substantially, from each other. There are also material inconsistencies (or, at minimum, some revisionism) within the individual accounts of at least two of the officers. Some of the evidentiary conflicts are reasonably attributable to the quickly evolving nature of the altercation. Others are not so readily explained.
[6] The topography of the College Park Courthouse, a matter of contextual importance, is fortunately free of controversy. The Courthouse occupies the second floor of a renovated and repurposed department store in central Toronto. Elevators empty their passengers into the court's lobby where court officers conduct security checks before permitting members of the public to enter the area containing courtrooms. The numbered courtrooms are laid out on both sides of a wide hallway that extends the length of the facility. The defendant's trial was conducted in a courtroom numbered "502" ("502 Court"). Like all the trial courts at College Park, 502 Court is separated from the hallway by two sets of double doors, with a small vestibule or foyer between them. Small glass windows are installed in the doors closest to the courtroom. The walls of the arterial hallway are lined with benches.
[7] Two of the Crown witnesses (Phelleto Carpenter and Roderick Cummins) are "Special Constables" with the Toronto Police Service (TPS), assigned to the force's "Court Services" unit. The duties of these "court officers", as they are generally called, encompass the provision of courthouse security, including maintaining the peace and enforcing court orders. The court-related scope of court officers' powers is set out in s. 138 of the Police Services Act, R.S.O. 1990, c. P.15.
[8] Cummins was assigned to 502 Court on April 8, 2015, as he had been on April 7th, the first day of Onigbinde-Bey's College Park trial. Carpenter was detailed to the security station that separated the elevators from the courtrooms on April 8th. He screened Onigbinde-Bey as he entered the court area, recognizing him from earlier appearances at the courthouse. Carpenter also testified to a free-standing sign near the elevators that cautioned visitors against the use of cameras in the courthouse environment.
[9] The two other Crown witnesses (PC Darryl Lambie and PC Jean-Marc Loiselle) are both TPS constables. They were then members of the "Toronto Anti-Violence Intervention Strategy" unit ("TAVIS"), a street-level, proactive enforcement initiative that, as officially profiled online, "seeks to reduce the number of offenders engaged in violent crime and reduce opportunities to commit crime in neighbourhoods identified as being at risk". At the time, Lambie was a Crown witness in the defendant's trial at College Park. Loiselle, his TAVIS colleague, accompanied him to court on April 8th.
(b) The Backstory
[10] PC Lambie and Onigbinde-Bey share some history – none of it friendly. Lambie had first arrested the defendant in November 2013. By way of identification, the defendant then tendered a card that, among other information, introduced himself as a "free man on the land" and included the word "Moors". Lambie escorted the defendant to the station where the defendant's legal identity was ultimately established. The officer subsequently Googled the word "Moors". Through online professional training he developed an understanding that the phrase "free men on the land" refers to persons who "don't respect or recognize the authority of the Canadian government and it officials and court system".
[11] Although he routinely questioned my judicial authority at the start of each court day, Onigbinde-Bey did not expressly identify with "free men on the land" in the instant proceedings. However, based on Lambie's personal "interactions" with Onigbinde-Bey and his "observations of his interactions with the court process" since his first trial with the defendant in November 2014, the officer maintained the "opinion" that "the way [the defendant] presents himself and carries on in court" and in the halls continued, in April 2015, to demonstrate his "lack of respect for the court system". He was, say Lambie, "playing games and delaying things".
[12] Sometime in 2014, Lambie arrested Onigbinde-Bey for driving-related offences which, as best I understand the evidence, led to the defendant's trial in 502 Court at College Park in April 2015. On December 15, 2014, Lambie observed the defendant (then still subject to a driving suspension) operating the same vehicle. He followed the defendant and approached him after he parked his car. Lambie and the defendant both filmed their subsequent exchange, Lambie using his in-car TPS-installed camera while the defendant videotaped the event. Lambie called for a second officer to ticket the defendant. No officer responded. Lambie tried to serve the defendant on a later occasion, but, he says, his superintendent directed him to avoid any contact as the defendant had an "unhealthy obsession" with him. Onigbinde-Bey, meantime, posted his videotape of the incident to YouTube and, it appears, other social media. Lambie testified that he was subsequently advised that, as a result of a TPS assessment, the defendant was identified as a credible threat to his, the officer's, safety. Lambie's next in-person meeting with the defendant was on April 7, 2015 – the first day of Onigbinde-Bey's trial at College Park.
(c) The Previous Day: April 7, 2015
[13] As already noted, Cummins was assigned to 502 Court on both April 7 and 8, 2015, the dates scheduled for the defendant's trial. The defendant approached Cummins during a recess on the 7th. They had a conversation and, Cummins agreed, established a rapport. The defendant, according to Cummins, remained "quite aggressive towards the other officers".
[14] Lambie was the primary Crown witness at the defendant's April 2015 trial at College Park. Unlike Cummins, Lambie took pains to avoid communicating with Onigbinde-Bey on April 7th. He used a service elevator to get to the court, avoiding the public elevator system. Nonetheless, he testified, the defendant called out to him by name when he got out of his police vehicle that day and repeatedly approached and stared at him during recesses as he paced the length of the main hallway. Although nothing was said, Lambie thought the defendant was "trying to intimidate" him. Lambie had "already been told …not to talk" to the defendant. There is a police office in the College Park courthouse. Nonetheless, Lambie remained in the hallway during recesses; he had not been "told that [he] shouldn't be out in the open area", he explained.
[15] Crown counsel suggested Lambie bring a fellow officer to court with him the next day, April 8th, for additional security. Loiselle, a member of Lambie's TAVIS team, accompanied Lambie on the 8th. Both officers were in uniform that day, as were the two court officers, Carpenter and Cummins.
(d) April 8, 2015
(i) Events Culminating in the 502 Court Recess
[16] Lambie, Loiselle and Cummins all testified to being in 502 Court when the defendant's trial resumed on April 8th. Although their accounts vary, all three testified to commotions in court that ultimately led to a recess.
[17] PC Loiselle had never seen the defendant before April 8, 2015. Nor had he previously attended College Park Courthouse. The defendant, he says, appeared frustrated and agitated throughout the morning's proceedings. Despite an appointment of amicus, Onigbinde-Bey insisted on representing his own interests at his trial. He was argumentative and, in Loiselle's opinion, disrespectful of the court. The trial judge directed the defendant to sit down on several occasions – as many as 15 to 20, according to Loiselle. The defendant also insisted on playing a YouTube video until the presiding judge told him to stop and called a recess. Loiselle and Lambie both testified that, just before the recess, the judge flagged a "concern for [PC Lambie's] credibility" arising from the officer's stop of the defendant's vehicle in December 2014. This, on Lambie's account, occurred about 10:30am on April 8th.
[18] Assuming he is referring to the same break in the morning's proceedings, Cummins, the court officer in 502 Court, places the recess much later in the morning of April 8th — at 11:55am. Onigbinde-Bey appeared upset and slammed the double doors at the back of the courtroom on his way out. In cross-examination, Cummins for the first time testified to an earlier disruption provoked by the defendant's abrupt departure from the courtroom during the screening of a video in which, as then characterized by the defendant, he was being assaulted. The defendant was visibly upset. In cross-examination, PC Loiselle, like Cummins, also recalled the defendant refusing the judge's direction to shut off a YouTube video and then abruptly leaving the courtroom – some time, it appears, before the recess that followed the judge's comments respecting Lambie's credibility.
[19] Cummins says the trial judge instructed him to return Onigbinde-Bey to the courtroom following his abrupt first departure. Cummins conveyed the judge's direction to the defendant who said he would return to the courtroom in a minute, which he did. Other than his relatively civil exchange with Onigbinde-Bey, Cummins did not testify to anything untoward or even significant occurring in the hallway before he and the defendant returned to 502 Court or before the recess was called. Loiselle and Lambie's evidence is to the same effect in this regard.
[20] However, Carpenter, the second court officer, has a very different recall. He testified to hearing noises from the area of 502 Court while stationed at the security detail near the front elevators. He left his position to investigate. The defendant, he says, was pacing up and down the hallway, shouting and yelling obscenities at two men dressed in civilian wear sitting in the hallway. (In cross-examination, and when shown images of their appearance, Carpenter conceded that the two men – undoubtedly, PCs Loiselle and Lambie – may have been wearing TPS uniforms, which conforms to the officers' own evidence.) One of the men told the defendant to "stop waiving that stick in my face". Carpenter approached the defendant and told him to "calm down; stop shouting". He could not recall the defendant's response. Cummins, says Carpenter, intervened, effectively summoning the defendant back into 502 Court. Carpenter thought it prudent to follow them into the courtroom as Onigbinde-Bey was still very agitated. The presiding justice returned to the courtroom and the defendant's trial resumed with the screening of a video. The defendant appeared very upset by what he was watching. He asked for, and the judge granted, a 20-minute recess. The defendant walked out of 502 Court, slamming the doors at the rear of the courtroom.
[21] Cummins agreed a video was screened once he and the defendant returned to the courtroom and that the defendant appeared very upset on viewing it. Cummins also recalled that the defendant requested a recess, that the presiding justice granted his request, and that the defendant then "stormed out of the courtroom". With respect to the events preceding the recess, Cummins said nothing about Carpenter having earlier joined him in the hallway, of any heated exchanges in the hallway, or of Carpenter accompanying him and the defendant back into 502 Court.
[22] To be clear, unlike Carpenter neither Lambie nor Loiselle testified to having any confrontation, verbal or otherwise, with the defendant in the hallway outside 502 Court until they returned to a bench outside that courtroom approximately a half-hour after the recess was called. And while his timing differs, Cummins likewise did not testify about any exchange between Onigbinde-Bey and the two TPS officers until after the recess had been called and the officers and the defendant had cleared the courtroom.
(ii) Events Following the Recess Being Called
[23] The defendant's trial did not resume after the recess was called on April 8th. There is general agreement among the witnesses that the presiding judge did not return to the courtroom that day. There is far less agreement as to what transpired in the foyer and hallway during the recess.
[24] Loiselle and Lambie both testify to retiring to the police office at the College Park courthouse as soon as the recess was announced. At Crown counsel's instructions, they returned a half-hour later to a bench in the hallway immediately to the left of the doors to the 502 Court foyer to wait for the proceedings to resume. (Lambie clocks the recess as running from 10:30 to 11am.) Loiselle sat closest to the courtroom doors and Lambie sat to his immediate right and further from the doors.
[25] Although its timing remains unclear, a verbal exchange between the defendant and Loiselle appears to have triggered, or at least accelerated, the fracas that ensued.
[26] Onigbinde-Bey, says Cummins, left 502 Court immediately after the recess was called. Loiselle was sitting on a bench to the defendant's right as he entered the hallway. The defendant was carrying a staff. He loudly said "something along" the lines of, "I answer to no one"; "You guys are picking on me"; "This is the land of freedom". He was standing about two to three feet from Loiselle. Cummins could not recall Loiselle's response, if any.
[27] Lambie and Loiselle both testified to a vaguely similar initial verbal confrontation. However, contrary to Cummins' account they place its occurrence sometime after they returned to a bench outside 502 Court – at least a half-hour after the recess was called. Both officers recall the defendant storming out the 502 Court foyer doors and into the hallway. Both recall that he was very angry about the video he had been watching.
[28] According to Lambie, the defendant then sat down on the bench across the hall from the TAVIS officers, approximately 20 feet distant, and stared at them. Directing his attention to Loiselle, he said, "What are you looking at? Fuck you. You're a fucking goof". He then got up, walked past the officers and through the doors leading to the 502 Court foyer. He returned to the hallway area a few minutes later, moved to within a foot of Loiselle and continued to direct profanities at him. The defendant was still carrying his staff. He was "not waving it around". An exchange with Loiselle followed, although Lambie could only recall Onigbinde-Bey's parting words as he re-entered the foyer leading to the courtroom: "Why? It's just a stick. You have a gun". The defendant, says Lambie, was "very, very upset; very agitated".
[29] Loiselle's account is thematically consistent with Lambie's, although the details differ. Rather than sitting across the hallway from the officers, he recounts the defendant immediately turning his attention in his, Loiselle's, direction as he entered the hallway from 502 Court. "What the fuck are you looking at?", he demanded from a distance of a foot or two. The defendant's staff was close enough to Loiselle that the officer told him to stand back and get it out of his face. Onigbinde-Bey, he says, was irate. He re-entered the doors leading to 502 Court. Loiselle heard the sound of an argument coming from the foyer, followed by the defendant's quick return to the hallway. (Loiselle assumed court officers barred the defendant's access to the courtroom, but he did not see the officers and could not make out the participants' words.) The defendant was angry and loud. He was also now accompanied by a woman universally acknowledged to be his sister. This woman then entered the foyer area to 502 Court through the hallway doors.
[30] In light of these developments, Loiselle advised Lambie to move away from 502 Court. As Lambie walked toward 504 Court, a little further down the hallway, he could hear the sound of a struggle coming from the area of 502 Court. He sought shelter in the foyer to 504 Court and, he says, waited there for Loiselle to return. When Lambie eventually emerged from the 504 Court foyer, he could see that the defendant was in cuffs and being led away by police officers. He did not witness the defendant's involvement in any physical altercation.
[31] Carpenter testified to following Onigbinde-Bey as he exited 502 Court after the recess was called. The defendant was pacing the hallway, screaming, uttering threats and waiving his "stick" in the direction of the two seated TAVIS officers. Carpenter told the defendant that he would have to leave the building if he did not calm down. Concerned that Onigbinde-Bey's conduct might "escalate", he re-entered 502 Court and told the occupants (only Crown counsel and an instructing officer, in Carpenter's recall) about the defendant's behaviour in the hallway. They suggested summoning the trial judge. Before this occurred, Carpenter observed the defendant standing in the foyer filming the events in 502 Court through the window in one of the courtroom's rear doors. Carpenter promptly headed to the rear of the courtroom to confront the defendant.
[32] While Cummins agrees that he and Carpenter re-entered 502 Court, his account as to the immediately preceding events significantly differs from that tendered through his colleague. Onigbinde-Bey, says Cummins, had left his papers on the counsel desk when he left 502 Court during the recess. The defendant's efforts to return to the courtroom to collect these documents were frustrated by the palpable "tension" between him and Carpenter. Although he could not recall exactly how or when it occurred, Onigbinde-Bey's papers were somehow returned to him before there was any physical confrontation in the foyer. Cummins readily accepted the "possibility" that the defendant's sister collected the documents for Onigbinde-Bey, but he did not "know if somebody assisted her" in entering the courtroom. As already noted, PC Loiselle also recalled seeing the defendant's sister enter at least the foyer area of 502 Court during the recess.
[33] Although the evidence in this regard is somewhat confusing, on Cummins' account it appears that his and Carpenter's re-entry into 502 Court followed the return of the defendant's papers. The judge was not then in the courtroom but, says Cummins, a court clerk and Crown counsel were. Cummins could not recall if an amicus appointed to assist the defendant was also present. Cummins took the key from the clerk and locked the rear doors to the courtroom from the inside. While returning the keys to the clerk, Cummins heard Carpenter say, "I think he's trying to record us". Cummins looked to the back of the courtroom. Onigbinde-Bey appeared to be using a cell phone to film inside 502 Court through the window in one of the double doors that separated the courtroom from the foyer. And Carpenter was walking purposefully toward him.
(iii) The Foyer Altercation
[34] Suspecting the defendant was using his cellphone to film inside 502 Court, Carpenter says he walked into the foyer and told the defendant he was not allowed to record. Onigbinde-Bey denied recording. He was holding his cell phone by his waist and Carpenter could see an illuminated red button which, to him, indicated that the device was activated. He told the defendant that he would have to take away his phone if he continued to record and asked him to erase its contents. Onigbinde-Bey maintained that he was not recording. Carpenter said nothing about demanding the defendant hand over his phone.
[35] Someone, says Carpenter, opened the foyer door to the hallway and the defendant tossed his phone towards that person. The phone, he says, landed on the hallway floor. Carpenter testified that a woman jumped on him as he tried to retrieve the phone. Onigbinde-Bey shouted, "Don't touch my sister". Carpenter says he secured the defendant's phone. He wanted it as evidence that the defendant had made courtroom recordings, a provincial offence in his view. The defendant, he says, lunged at him from inside the foyer as he, Carpenter, turned to face him. Onigbinde-Bey was holding his staff in a vertical posture, its base directed to the floor. The defendant made very brief manual contact with Carpenter as Cummins pulled the defendant back and tried to restrain him within the foyer. The defendant was acting violently and yelling. Carpenter could not recall his words. Concerned for his colleague, Carpenter testified that he helped Cummins forcefully take the defendant to the ground. Contrary to Cummins' recall (and that of Loiselle, the only other testimonial witness to this event), Carpenter insisted that Onigbinde-Bey was initially restrained in a face-up position.
[36] While grounding the defendant, Carpenter felt a hard "hit" to the left side of his rib cage. At the time, he was partly kneeling over Onigbinde-Bey and trying to control his flailing hands and legs. Carpenter inferred the "hit" was a result of a kick or a blow from the defendant's staff. The defendant, according to Carpenter, also scratched his face and ripped his impact vest from his body. The defendant was eventually restrained and rolled onto his stomach. A third security officer, Wake, then cuffed Onigbinde-Bey, some two to three minutes after he first "lunged" at Carpenter.
[37] Carpenter never told the defendant he was under arrest. He never heard any other officer utter words of arrest. He had no recall of Loiselle (or any other officer other than Cummins and Wake) being involved in the physical altercation with the defendant in the foyer. Nor could he recall ever hearing the defendant say he could not breathe.
[38] Following the incident, Carpenter noticed scratch marks on his chest. He attended the hospital where, he says, he was diagnosed with bruised ribs. He testified to taking two weeks off work and that the pain lasted a further six weeks.
[39] Cummins testimonial account of the initial portions of the foyer confrontation with the defendant parallels Carpenter's. In direct examination, he recalled Carpenter entering the foyer and asking the defendant if he was recording and, if so, to stop. Onigbinde-Bey denied recording. He appeared upset and his voice grew louder. Carpenter again told him to stop recording or he would confiscate the device. In cross-examination, Cummins departed from the cautionary and negotiative language he had assigned to Carpenter in-chief. He agreed that Carpenter's words on opening the doors to the foyer were, "Are you recording? Give me that phone". Carpenter's and the defendant's voices were both raised. The defendant appeared agitated. He threw his cell phone through the outer foyer doors toward his sister, "the targeted recipient of the phone", as Carpenter reached out to seize it. The phone landed on the hallway floor. Carpenter bent over to retrieve the phone while using his foot to anchor open one of the foyer doors leading to the hallway.
[40] Cummins' recall here departs substantially from that of his colleague Carpenter. Cummins witnessed the contest for the phone through a fully open foyer door. He was only a few feet distant with a "clear view". There is no suggestion that his window of observation was obscured or interrupted. Like Carpenter, the defendant's sister was also trying retrieve the phone. Contrary to Carpenter's account, however, Cummins testified that there was no physical contact between Carpenter and the defendant's sister. Further, Cummins saw Onigbinde-Bey's sister collect the phone before Carpenter could reach it.
[41] Carpenter's back was to the very small foyer and no more than an arm's reach from the defendant as he, Carpenter, moved towards both the phone and the defendant's sister. Cummins says Onigbinde-Bey made "a sudden move" – "Maybe one step. Maybe." – toward his colleague's back with a raised hand. Fearing he was about to "physically assault" Carpenter by grabbing his vest or sweater from behind, Cummins grasped hold of the defendant's sweater, pressed him chest-first against a foyer wall and told him to relax and "behave like an adult". Contrary, again, to Carpenter's recall, Cummins testified that Onigbinde-Bey did not then have his staff in either hand. Carpenter did not know what had become of the staff nor did he again see it.
[42] Carpenter was by now in the hallway. The defendant, rather than complying with Cummins' directions, appeared to be trying to approach Carpenter. In Cummins view, the defendant "gave [him] no choice [but] to actually take him down the ground", which he – and he alone – did. "Let me up, let me up", said the defendant. Cummins explained that his motive for grounding the defendant was "to prevent any further potential threats to members of the public and the court staff". Other than Cummins and the defendant, there was then no one else in the foyer.
[43] Carpenter, on Cummins' account, then returned to the foyer of 502 Court to help restrain the prostrate defendant, a man who Cummins several times described as a "strong individual" who was "trying to resist". The defendant then weighed about 155 pounds. He was lying face-down on the floor with his head tilted to the right. Cummins, who weighs-in at 230 pounds, was applying his knee to the defendant's left hip while holding his left arm. Carpenter was kneeling on the defendant's right side as the defendant, in Cummins' opinion, ineffectually waved his right arm. Carpenter grabbed that arm and placed it behind the defendant's back. Cummins pulled the defendant's left arm into the same position. At this point, a third court officer, Wake, arrived and cuffed the defendant's wrists. Onigbinde-Bey continued to shout, "Let me up, I didn't do anything". The defendant did not get off the foyer floor from the time Cummins grounded him until the officers raised him to a standing position after he was cuffed.
[44] Prior to Carpenter's return to the foyer to assist in restraining the defendant – and again contrary to his colleague's evidence – Cummins had "absolutely not" seen any physical altercation or aggression between the two men. He later agreed that other than resisting efforts to restrain him, the defendant "never actually physically touched any officer that day". Like Carpenter, Cummins could not recall hearing Onigbinde-Bey or his sister ever say that the defendant could not breathe.
[45] The events in the foyer to 502 Court happened very quickly. Cummins recalled seeing a slight tear to Carpenter's shirt after the altercation; he did not witness any tearing. Cummins made no mention of Loiselle or any officer, other than himself, Carpenter and, finally, Wake, being in the foyer during the physical take-down of the defendant.
[46] While the two court officers' accounts of their altercation with the defendant in the foyer omit any mention of Loiselle, the TAVIS officer places himself squarely in the middle of the row. His testimonial recall of the preliminary events is also notably distinctive.
[47] In Loiselle's recounting, Onigbinde-Bey sat next to him on the bench outside 502 Court once Lambie moved down the hallway. The defendant's sister then sat next to her brother – all three on the same bench. The defendant was agitated, angry and talking to himself. There was no verbal exchange between Loiselle and the defendant, but the latter "was trying to record [Loiselle] on the bench". Loiselle said nothing at the time. After a few minutes, Onigbinde-Bey rose and, with his sister close behind, "tried to re-enter the courtroom". Some "back and forth to the foyer" followed. Then Loiselle heard court officers in the foyer tell the defendant he could not use his cell phone to record inside the courtroom.
[48] Loiselle testified to then entering the foyer. He arrived in the course of a "confrontation" among the defendant, his sister and two male court officers (Carpenter and Cummins), all of whom occupied the small enclosed area. (Loiselle's estimates as to the foyer's dimensions varied from approximately five feet by eight feet to six by six.) Loiselle had no recall of the defendant having his staff while in the foyer. He inserted himself between the "argumentative" woman and the officers who were trying to grab the cell phone from the defendant and, Loiselle assumed, trying to restrain him. He assisted the court officers in doing so once they had taken Onigbinde-Bey to the ground.
[49] Following a recess, Loiselle confirmed that he still had no recall of the defendant having his staff in the foyer. However, having refreshed his memory by reviewing his notes, he advanced a very different account of the timing of and factual predicates to his entry into the foyer. He now testified that he heard a scream and, from his location in the hallway, saw a cell phone arc through the foyer doors and land on the hallway floor. It is at this point that he first entered the foyer. The defendant was "grabbing" one of the two court officers in the foyer and he, Loiselle, "assisted with the sister". He was trying to keep her behind his back as she was "starting to be combative". The defendant was "yelling and screaming" about his sister being choked throughout the altercation. Both court officers took the defendant to the floor, "face to the ground". He was uncooperative and "fighting back". Loiselle intervened, securing one of the defendant's arms to help control him.
[50] Loiselle believed the court officers were trying to place Onigbinde-Bey under arrest. Asked in-chief if he understood their reason, Loiselle first said he "assum[ed] for not following their command in the sense that you can't record in the courtroom when he was told". And then: "It could have been from anything at the time". And finally: "No, I did not know specifically what they were arresting for. I was just assisting when he was on the ground". Loiselle never heard words of arrest.
[51] Loiselle felt a bite on his right knee after the defendant was handcuffed. It did not break his skin or tear his pants. Mentally reconstructing the event, Loiselle believed Onigbinde-Bey bit him when he knelt beside his face-down head. He responded by striking the defendant with his right knee in the area around his mouth. "As soon as" he was kneed, Onigbinde-Bey "was yelling that he couldn't breathe". The officers then lifted the cuffed defendant to his feet to facilitate his breathing. Loiselle did not require any medical attention.
[52] Loiselle had no idea what happened to the cell phone. After it "land[ed] in the hallway" he testified he "didn't pay it any more attention". The next time he saw the defendant's staff was in the hallway after the defendant had been removed to the courtroom cells. In cross-examination, some months after he first testified, Loiselle for the first time recalled that the staff was with the defendant during the fracas in the foyer. In direct examination, he had several times denied any recall of the staff being in the foyer during the altercation. He had no note respecting the staff's whereabouts during the incident in the foyer.
[53] It is undisputed that the staff and cell phone ended up in a police property locker following the defendant's arrest on April 8, 2015. Both items were released to the defendant during the course of this trial. Several brief audio-video clips recorded with the defendant's cell phone at the College Park Courthouse on April 8th were transferred to a DVD. These clips were screened in cross-examination of two of the Crown witnesses, Carpenter and Loiselle. These officers identified the images and, accordingly, the disc and its contents were entered as evidence. I cannot be certain that the entirety of the video recorded by the defendant on April 8th appears on the DVD. Nor can I be certain that the order in which the clips are assembled on the one-minute-long DVD reflects their chronological sequence. Nonetheless, the video exhibit chronicles several significant events and, to that extent, both selectively confirms some of the officers' testimony and raises questions about other portions of it. To be clear, no witness disputes the temporal order of the several sequences on the DVD. Carpenter, however, expressed concern that his recorded verbal exchange with the defendant was not complete.
[54] The first clip is undoubtedly of Loiselle reclining on a bench outside a courtroom at College Park. It is videotaped by someone to his right who, from the angle of the shot, appears to be standing. Loiselle, in full uniform, is alone on the bench. When shown this sequence during his cross-examination, he identified himself as the officer being filmed.
[55] The next clip, while under ten seconds in length, is of greater narrative value. It is shot from the back of the courtroom. It undoubtedly captures the inside of 502 Court during the recess. Carpenter appears to spot the videographer, pauses and then heads towards the person holding the recording device – that is, on Carpenter's evidence, the defendant who he observed filming from the foyer with his cell phone through a window in one of the rear doors to the courtroom. Including Carpenter, a court reporter and a court clerk, there are then seven or eight persons in 502 Court. But for the court reporter, they are all standing.
[56] The third sequence appears to immediately follow the second, coinciding with Carpenter's arrival at the foyer to 502 Court. The cell phone continues recording, but the images appear to be of the floor, ceiling and walls with abrupt departures from one to the other, suggesting the rapid movement of the phone. This portion of the video recording adds little of evidentiary value. Much more notable is the simultaneous audio track which captures the conversation between Carpenter and a man who, through his voice, is readily identifiable as the defendant. Although the exact setting is unclear, only the foyer (rather than the hallway) is consistent with the various officers' testimonial consensus as to the location of the following exchange between Carpenter and the defendant:
Carpenter: [Unintelligible]
Defendant: I wasn't recording nothing.
Carpenter: Let me see what you just recorded.
Defendant: Nothing.
Carpenter: Show it to me then.
Defendant: Nothing. I'm not showing you …
Carpenter: [parties talk over each other]
Defendant: … it's my personal property.
Carpenter: [unintelligible] … I'll have to confiscate it.
Defendant: No, you can't. It's my personal property.
Carpenter: You're not allowed to record anything.
Defendant: I'm not recording anything. The court is not in session.
Carpenter: I want that phone because I believe you were doing that.
Defendant: Nah. Nah. You're not taking the phone. You'll have to kill me.
Carpenter: It's your decision.
Defendant: Nah, you'll have to kill me.
Carpenter's voice remains firm but measured throughout the exchange. The defendant's words and tone of voice convey belligerence and anxiety.
[57] The next sounds on the DVD are of a struggle and a woman's vocal protests. Again, it is not clear whether this sequence directly follows the verbal exchange (the more likely alternative, in my view, as the transition appears seamless) or whether there is an interruption in the filming. The first recognizable image is of Loiselle's face in the upper right of the frame as he leans over the phone which, it appears, is now lying on the floor with its lens directed towards the ceiling tiles. It is uncertain whether this sequence is shot in the foyer or the hallway. A woman's voice can be heard squealing. "What are you doing!", she says, more by way of exclamation than question. Carpenter's face then fills the centre of the frame as he bends over the lens. His hand rapidly descends towards the camera. His movement is consistent with an effort to retrieve the cell phone. The sounds of struggle and a woman shrieking fill the final six or seven seconds of darkness that follow. A woman's voice can be heard saying, "I didn't do anything".
[58] As already noted, the video was screened for Carpenter and Loiselle during their cross-examinations. Carpenter identified himself as the officer reaching down for the phone. This, he says, is when the woman, the defendant's sister, made contact with him as they simultaneously tried to retrieve the phone from the hallway floor. Carpenter incorrectly identified the face of the second officer hovering over the phone as that of his colleague Cummins.
[59] Loiselle had no hesitation correctly identifying himself as the second officer whose face hovers over the phone as Carpenter reaches down for it. The phone, says Loiselle, was then lying, lens-up, on the floor of the hallway outside 502 Court. As earlier noted, in direct examination Loiselle first testified to seeing the cell phone in the defendant's hand when he entered the foyer; he said nothing about its appearance on the hallway floor. He later testified to first seeing the phone as it was apparently flung from the foyer and landed on the hallway floor near where he was sitting; he paid no further attention to the phone; rather, on this second account, he immediately entered the foyer where he observed the two court officers, Carpenter and Cummins, engaged with the defendant and the defendant's sister. Loiselle, in chief, said nothing about the defendant's sister being in the hallway or of Carpenter, or any other court officer, entering the hallway to retrieve the phone. Loiselle was not pressed by the self-represented defendant as to how he could reconcile these three accounts or as to which, if any of them, was accurate. Similarly, Carpenter was not pressed as to how he reconciled his evidence in direct examination respecting Cummins' efforts to restrain the defendant in the foyer while he, Carpenter, retrieved the phone in the hallway floor with his later (if incorrect) identification of Cummins as the second officer hovering over the phone in the hallway.
C. ANALYSIS
(a) Introduction
[60] In some cases, there is little factual dispute and the primary issues are those of legal application or interpretation. This is not one of those cases. While there are legal issues that require careful consideration, it is largely a fact-driven exercise. Accordingly, a fine-grain review of the evidence is crucial. Aided by transcripts of some of the officers' testimony, I have endeavoured to fairly set out the evidence tendered through the four Crown witnesses. While it is often said that the devil is in the details, both adequate proof and reasonable doubt often inhabit this same terrain.
[61] The critical events transpired over the course of a couple of hours, at most. The four Crown witnesses all had eyes on most of the same events. They are all experienced peace officers. Yet their accounts of the incident are widely divergent, particularly respecting matters that bear on critical elements of the offences with which Onigbinde-Bey is charged and the defences that are at least arguably available to him. Did the defendant strike or even touch anyone prior to his physical apprehension? Was the defendant in the process of defending his sister or his property when he is alleged to have first assaulted an officer? Was he lawfully under arrest when he is alleged to have assaulted Loiselle and Carpenter? Were these same two officers in lawful execution of their duty?
[62] I first address the witness officers' credibility. Applying that filter and common sense, I then turn to a determination of the evidence in which I have sufficient confidence to amount to "facts". A review of general legal principles that apply to the offences charged and, particularly, the exercise of police powers, follows, as does, then, the application of these principles to the facts.
(b) Credibility
(i) Introduction
[63] Adjudicating this prosecution necessitates an inquiry into and assessment of both the honesty and reliability of the four witness officers. The case does not present as a classic he-say-she-say contest of credibility as the defendant did not testify nor call other evidence. Nonetheless, the final branch of the W.D. test bears directly on the task at hand. Although R. v. W.(D.), [1991] 1 S.C.R. 742 is ordinarily invoked in cases of conflicting testimonial accounts in which a defendant takes the stand, the case and its many authoritative progeny make clear that, irrespective of its evidentiary source, an accused must be acquitted even if he or she elects not to testify so long as there remains a basis for reasonable doubt respecting the veracity or correctness of a vital element of an inculpatory account. Put otherwise, a footing for reasonable doubt may be found in the evidence of any witness or combination of witnesses or, simply, in the absence of sufficiently probative evidence.
[64] A judge presiding, as here, at a judge-alone trial must, like any trier of fact, assess the credibility of every witness in the context of all the other evidence and not in isolation. It is also settled if not trite law that a judge may, with reason, accept none, some or all of the evidence of any witness and accord different weight to different parts of the evidence that he or she does accept.
[65] Applying these principles, the many testimonial inconsistencies in the case at bar invoke profound concerns respecting the credibility of the Crown witnesses. The risk of animus borne by several of these same witnesses only compounds the adjudicative exercise.
(ii) Testimonial Inconsistencies
[66] The witnesses' accounts are sometimes internally inconsistent or, at least, variable. Cummins, for example, first testified that the defendant left 502 Court when a recess was called. Later, he spoke at some length of the defendant's abrupt earlier departure, his hallway exchange with the defendant, and the events following their return to the courtroom prior to the recess being called. Carpenter, in his first account, has his colleague Cummins restraining the defendant in the foyer while he retrieves the phone in the hallway. Then, on watching the video evidence in cross-examination, he (if mistakenly) identifies Cummins as the man hovering over his shoulder as he grabs for the phone in the same hallway. And Loiselle tendered alternative accounts of his entry into the foyer in direct examination and a third and very different account when exposed to the video evidence in cross. Similarly late in the game, Loiselle remembered the defendant's staff being in the foyer during the altercation after having at least twice denied any similar recall during the course of his direct examination. Loiselle's tardy recollection of the staff occurred during his cross-examination, more than four months after he testified in chief and approaching two years after the event. No contemporaneous notes render his belated recall of the staff's presence in the foyer any more dependable than his two earlier denials.
[67] More corrosive of the witnesses' creditworthiness (and, ultimately, of the search for a reliable factual foundation on which to resolve the issues of substance) are the material differences – indeed, often direct contradictions – between the officers' various testimonial narratives. By way of example only:
Cummins testifies that he alone took the defendant to the floor in the foyer. Carpenter testifies that he and Cummins jointly grounded the defendant. And Loiselle testifies that he saw both court officers engaged in taking down the defendant when he entered the foyer.
Loiselle places himself in the foyer during the defendant's apprehension, including intervening to prevent the defendant's sister's physical involvement, helping to restrain the defendant, taking a bite in the knee for his efforts, and striking the defendant in the face in response. The two other officers in the foyer at the time (the court officers Cummins and Carpenter) have no recall of Loiselle participating in the defendant's take-down or of even being in the foyer at any time during their altercation with the defendant.
A third court officer, named Wake, is the only other police presence either Cummins or Carpenter recalls being in the foyer during the fracas. They say that Wake (who did not testify) cuffed the defendant after they secured his hands behind his back. Loiselle, who testifies to being present when the defendant was cuffed and brought to his feet, identifies the presence of no officers in the foyer other than himself, Cummins and Carpenter.
Only Loiselle locates the defendant's sister in the foyer during the altercation. On Cummins' and Carpenter's accounts of the same event, her only narrative-worthy presence is in the central hallway immediately preceding their scuffle with the defendant.
Cummins several times testifies that the defendant was "face down" on the floor of the foyer when he grounded him. Loiselle's recall is identical; indeed, Loiselle's explanation of the mechanics of his being bitten only makes sense if, as he insists, the defendant maintained this position until after Loiselle reactively struck him in the face and he was then raised from the floor to a standing posture upon complaining that he could not breathe in his "face down" position. Carpenter, however, insists that the defendant was, at least initially, restrained on his back on the foyer floor. Like Loiselle, if for converse reasons, Carpenter's account of the assault he suffered at Onigbinde-Bey's hand – that is, scratches to his face and chest, bruised ribs and the removal of his impact vest – only makes sense if the defendant was in a position that enabled him to direct and manipulate his arms and hands – that is, on his back rather than face-down.
Loiselle, as just noted, testifies to the defendant complaining about his inability to breathe during the foyer altercation. When asked, neither Cummins nor Carpenter had any recall of such complaint or of the defendant experiencing any respiratory difficulty.
Carpenter testifies to scratches on his face and of his impact vest being ripped from his body by the defendant. Loiselle's account includes no such recall. At most, Cummins remembers a small tear to Carpenter's shirt.
Carpenter says that Onigbinde-Bey was holding his staff in the foyer when he, Carpenter, returned after retrieving the defendant's cell phone. He also infers that the "hit" he says he suffered to his rib cage while trying to restrain the defendant on the foyer floor was a product of the defendant striking him with the staff. Cummins positively denies that the defendant had his staff during the foyer altercation. And Loiselle, as earlier noted, only remembered the presence of the staff some four months after he had twice denied any such recall during his examination in-chief.
The variation in the witnesses' accounts respecting the collection of the phone from the hallway floor is particularly perplexing – both in regard to the retrieval of the phone and the contact, if any, between Carpenter and the defendant's sister. Cummins and Carpenter agree that the defendant tossed his phone in the direction of his sister in the hallway and that Carpenter then sought to retrieve it. On Carpenter's account, the defendant's sister jumped on him as he seized the phone. Cummins, who observed the incident through the open foyer door, testifies that there was no physical contact between the defendant's sister and Carpenter and that she, rather than Carpenter, secured the phone. And Loiselle, who (on one of his several accounts) testifies he was in the hallway immediately outside the foyer to 502 Court when the phone was tossed to the floor in front of him, says nothing about the seizure of the phone, about any contest for its retrieval, or about any physical contact between the defendant's sister and Carpenter. Directly contrary to Cummins' and Carpenter's accounts, Loiselle recalls the defendant's sister and Carpenter being inside the foyer (rather than in the hallway) when he immediately entered that room following the deposit of the phone on the hallway floor. The cell phone recordings on the DVD afford little support for any of these alternative recollections. While the images are consistent with Carpenter reaching for the phone, it is unclear whether he or someone else ultimately takes it into his or her possession. What is clear, is that only Loiselle's face, and certainly not that of any woman, appears in the video frame while Carpenter bends over the recording device. More confusing still, Loiselle, despite recognizing his own face peering at the camera lens in the video image, denied paying any attention to the phone once he saw it land on the hallway floor.
The initial physical contact that Carpenter alleges occurred between him and the defendant is also a matter of irreconcilable testimonial conflict. The defendant, says Carpenter, lunged at him from inside the foyer and made manual contact as he, Carpenter, turned to re-enter the foyer upon retrieving the phone from the hallway floor. In contrast, Cummins, as earlier quoted, testifies that despite his unobstructed view he had "absolutely not" seen any physical contact between the two men before Carpenter returned to the foyer. Further, says Cummins, prior to the police efforts to physically apprehend him, the defendant "never actually physically touched any officer that day".
This inventory of testimonial inconsistencies is not exhaustive. It focuses on matters of salience to the proper disposition of this prosecution.
[68] There is one important matter about which there is no inconsistency in the evidence of the various witnesses. This consensus pertains to a matter potentially affecting the integrity of the defendant's arrest or, more exactly, the lawfulness or otherwise of his response to his physical apprehension. In short, none of the witness officers testified to ever vocalizing words of arrest or of hearing any other officer do so.
(iii) Animus
[69] The evidence regarding the defendant's deportment at the College Park Courthouse on April 8, 2015 is another rare area of testimonial harmony. Although their precise words may differ, the witnesses collectively describe the defendant as insolent, belligerent and personally insulting. I have little difficulty accepting this characterization. The officers' testimony is detailed, consistent and confirmed by the audio recording of the defendant's language and tone in his exchange with Carpenter at the doors between the foyer and 502 Court.
[70] At least one of the officers has testified that the defendant's conduct at the instant trial closely parallels his behaviour during the College Park proceedings. Although otherwise of no direct probative value, the defendant's demeanour before me has been much the same as earlier described, punctuated by displays of impatience, sarcasm and rudeness (sometimes profanely so) directed to witnesses and Crown counsel, abrupt and unsanctioned departures from the courtroom, repeated interruptions and argument, and expressions of petulance and victimization. The defendant has on more than one occasion closely skirted a contempt citation.
[71] It seems reasonable to infer that police officers subjected to the defendant's in-your-face antics (literally so, in the case of Loiselle) may well experience an adverse visceral response. With the possible exception of Cummins, I am concerned that the officers' exposure to the defendant's impudence, personal affronts and patent disrespect for authority may well have coloured, if subconsciously, both their perception and recall of the events. Cummins agreed that he made some kind of out-of-court peace, achieved a certain "rapport", with the defendant during the course of the College Park trial. However, he said, the defendant remained "belligerent" toward the other officers, and they, through their testimonial words and carriage at this trial, readily convey their reciprocal antagonism.
[72] The difference in interpersonal relations is reflected in the respective officers' testimony. Cummins appeared conspicuously careful not to overreach in advancing his narrative. The other three officers tended more to rhetorical excess and occasional prejudicial conjecture. Loiselle, in particular, fell prey to the defendant's provocations, growing argumentative while being cross-examined. And, of course, Lambie and the defendant shared an historical antipathy, one that had generated at least two trials and, from Lambie's perspective, unwanted social media attention, a judicial expression of concern respecting his credibility, and instructions to both retain a security detail for the second day of the College Park trial and to seek refuge in the police office during recesses.
[73] As with the material testimonial inconsistencies outlined earlier, these risks of interpersonal bias inevitably weigh on any assessment of the police witnesses' credibility.
(c) The Facts: Distilled
[74] It is possible to cherry-pick the evidence to construct a factual narrative consistent with the Crown's incriminatory theory – that is, that a court officer, Cummins, physically intervened to prevent the defendant from assaulting, or continuing to assault, a second court officer, Carpenter, and that the defendant's violent resistance to the efforts of several officers to lawfully arrest him while in execution of their duty amounted to an assault on two of them, Carpenter and Loiselle, resulting in his commission of the four offences with which he remains charged. However, much of the evidence in support of this thesis – characterized, as it is, by discrepancies, internal and inter-officer contradictions and at least a taint of personal animus – is simply too unreliable to accept uncritically. A more granular inquiry is mandated. I turn, then, to a determination of the evidence I do accept. My assessment of its legal resonance follows.
[75] I have no difficulty finding that Onigbinde-Bey was disruptive on April 8, 2015. He goaded several of the officers, taxed their patience, and strained their capacity to civilly respond. He did indeed film inside 502 Court through a foyer window during a recess in his trial. As confirmed by his own cell phone video, he lied to Carpenter when he denied such recording. Carpenter demanded the defendant hand over his phone as he wished to confiscate it as evidence of his breach of a statutory recording prohibition. Rather than surrender his phone, the defendant tossed it through the foyer's outer doors toward or in the direction of his sister. The phone, I find, was neither abandoned nor discarded. It landed on the hallway floor where both Carpenter and the defendant's sister vied for its possession.
[76] I cannot determine who, if anyone, recovered the phone. Based on the evidence of Loiselle and, in particular, Cummins, I reject Carpenter's contrarian account of both the defendant and his sister making physical contact with him before the defendant is brought to ground in the foyer. That take-down, I further find, was effected by Cummins alone. To be clear, I accept Cummins' testimony that before the police efforts to physically restrain Onigbinde-Bey in the foyer, there was never any physical contact between Carpenter and the defendant and further, in Cummins' words, that the defendant "never actually physically touched any officer that day".
[77] I accept, as well, Cummins' evidence that he observed the defendant move toward Carpenter with a raised hand, that Carpenter's back was to the defendant, and that he, Cummins, subjectively feared the defendant was going to grab Carpenter's vest or sweater from behind. I note that Cummins did not testify to fearing that the defendant was going to punch, hit or otherwise strike Carpenter. Again relying on Cummins' account, I find that the defendant's movement or gesture occurred at the moment Carpenter moved toward both the defendant's sister and his cell phone.
[78] I find that Carpenter and Loiselle helped Cummins restrain the defendant after Cummins grounded him in the foyer. Onigbinde-Bey was taken to the floor face-down and, as consistent with Cummins' and Loiselle's testimony, he remained in that face-down posture until he was raised to his feet after Loiselle kneed him in the side of his face. By then, the defendant's arms were already cuffed behind his back. Given both the defendant's face-down positioning and the relevant evidence of Loiselle and Cummins, I harbour considerable doubt as the defendant being the source of the trauma attributed to him by Carpenter.
[79] I am not persuaded that the defendant had his staff in the foyer at the point Cummins grounded him or at any time thereafter. I have no doubt, however, that Onigbinde-Bey, once placed on the floor, physically resisted the officers' efforts to detain him until he was kneed in the face and handcuffed. No officer, I find, vocalized any words of arrest until sometime after the defendant was elevated to a standing position. Further, that arrest relates to the charges upon which the defendant was arraigned before me – that is, those arising from the fracas on the foyer floor – and not from any misconduct said to have preceded that altercation.
(d) The Governing Law
[80] The charges the defendant faces are set out in s. 270 of the Criminal Code. The relevant provisions read:
270 (1) Every one commits an offence who
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person.
[81] These offences address those situations where individuals use physical force to hinder the police performance of their duties. The tension in the resolution of such cases often lies, as here, in reconciling the police obligations to enforce the law with a citizen's right, as it is often put, to be left alone. An exception to the latter entitlement is conferred on the police in the performance of their duties, including law enforcement and preservation of the peace, so long as their interference with individual liberties does not exceed the legitimate compass of their powers. If, however, the police act outside their authority or exercise their powers in a manner or to an extent beyond that authorized by statute or the common law, a citizen is entitled to resist, by force if necessary. As said in the venerable case of Christie v. Leachinsky, [1947] UKHL 2, [1947] A.C. 573 (H.L.), at 591:
[I]t is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And … it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.
The opinion of Laskin, C.J.C. in R. v. Biron, [1976] 2 S.C.R. 56, at 64-65, is to like effect:
[A] constable's lot is a heavy and even unenviable one when he has to make an on-the-spot decision as to an arrest. But he may be overzealous as well as mistaken … . We cannot go on a guessing expedition out of regret for an innocent mistake or a wrong-headed assessment. Far more important, however, is the social and legal, and indeed political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private or public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested. [Emphasis added.]
It need hardly be said that these fundamental civic values and legal tenets inform much of the judicial construction of the Charter since its advent in 1982. That said, I note that the defendant has not advanced any claim to Charter relief. He relies, rather, on the common law principles upon which this constitutional edifice is founded. In essence, the defendant's position is that the Crown has failed to establish that any of the police officers were "in execution of his duty" or engaged in a "lawful arrest" when they physically detained him in the foyer and, as a result, that he was within his settled rights to resist their application of force with his own.
[82] So framed, the legal inquiry necessarily turns to the source and extent of the powers the police purported to exercise in the course of their physical interference with the defendant. The defendant's detention and ultimate arrest were the culmination of series of police intrusions beginning with Carpenter's effort to confiscate the cell phone. Although its application to the defendant's conduct is likely arguable, s. 136(1)(iii) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, prohibits any "visual or aural" recording,
of any person in the building in which a court hearing is to be or has been convened where there is reasonable grounds for believing that the person is there for the purpose of attending or leaving the hearing.
As noted earlier, s. 138 of the Police Services Act affords express authority for the exercise of court officers' powers in courthouse environments. Although s. 138 authorizes warrantless search powers, they extend only to those "entering or attempting to enter the premises" – not those who have already been granted entry. The same provision authorizes court officers to "[d]emand that a person immediately leaves premises where court proceedings are conducted … if there is reason to believe that the person poses a security risk". It also authorizes officers "to arrest, without warrant, any person who … does not immediately leave [the] premises … after being demanded to do so".
[83] It is at least questionable whether Carpenter's and Cummins' physical dealings with the defendant exceeded the powers conferred on them under s. 138. Recognizing the peril of reliance on the Police Services Act, Crown counsel suggests that Cummins' authority to detain the defendant finds independent purchase in s. 31(1) of the Criminal Code (which authorizes arrests for "breach of the peace") or, alternatively, the "ancillary powers doctrine" developed in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) and first adopted by the Supreme Court in Dedman v. The Queen, [1985] 2 S.C.R. 2 and, most recently, in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 33-41.
[84] As the Police Services Act expressly empowers officers to address circumstances illustrated by the defendant's alleged misconduct, I see no rationale for invoking the "Waterfield test" to determine the availability of an ancillary common law police power in Ontario courthouse settings. In Figueiras v. Toronto (Police Services Board), 2015 ONCA 208, at paras. 58-59, the Court of Appeal held that the police may resort to common law powers, if available, only where no statute governs or regulates the activity or scope of authority at issue. As said expressly at para. 109 (if in reference to "search" as opposed to "arrest" powers), "searches carried out in Ontario courthouses are provided for by statute. They are not expressions of a common law police power". Sharpening the point, the Court then favourably cites R. v. Gillespie (1999), 142 Man. R. (2d) 96 (C.A.), to the effect that where, as in Manitoba and Ontario, court security protocols are addressed through legislation, "courthouse searches were illegal when carried out without statutory authority". (As to the more general principle, see, also, R. v. Sharma, [1993] 1 S.C.R. 650, and R. v. Hayes, [2003] O.J. No. 2795, (Ont. C.A.), at paras. 38-42.)
[85] Assuming that neither the Public Services Act nor the ancillary powers doctrine affords lawful shelter for the officers' physical intervention with the defendant, the Crown points to s. 31(1) of the Code as a further alternative basis for appropriate authority. The provision reads:
Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.
[86] "Breach of the peace" is not statutorily defined. It is not itself a criminal offence. Its location in the Criminal Code, immediately preceding the provisions pertaining to "Suppression of Riots", suggests an actual or apprehended disturbance of public order as opposed to a crime or trespass against the person, property or the administration of justice. In Brown v. Regional Municipality of Durham Police Service Board, [1998] O.J. No. 5274; 131 C.C.C. (3d) 1, the Court of Appeal sought to both define and circumscribe the concept. As said by Doherty J.A. for the Court:
A breach of the peace does not include any and all conduct which right-thinking members of the community would regard as offensive, disturbing, or even vaguely threatening. A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone. … [I]n Percy v. D.P.P., [1995] 3 All E.R. 124 at p. 131 (Q.B.), Collins J. observed:
The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.
[87] Here, there is no simply no evidence of "actual danger to the peace" as a result of the defendant's conduct "provok[ing] others to violence". Nor does the defendant's conduct, as described by Cummins, objectively amount to "an act or actions which result in actual or threatened harm to someone".
[88] In my view, the court officers' authority to search and detain the defendant must be located, if at all, within the Public Services Act. Conversely, the defendant's entitlement to resist any interference with his liberties depends on whether the police use of force fell within the scope of their statutory authority under that Act.
(e) Applying the Law
[89] As I construe the events, the officers' patience with Onigbinde-Bey was close to if not spent by the time Carpenter observed him filming into 502 Court through the rear doors of the courtroom. Carpenter confronted the defendant. He did not ask the defendant if he could examine the cell phone. He demanded that the defendant produce the phone and then threatened to confiscate it. The defendant refused, asserting on each occasion that it was his "personal property". The defendant, in my view, was entitled to rebuff Carpenter's demands. He was not then under or threatened with arrest, nor was he subject to an investigative detention. As confirmed by the DVD exhibit, the words "arrest" and "detain" are conspicuously absent from the foyer exchange between Carpenter and Onigbinde-Bey.
[90] Most importantly, the powers granted court security officers under s. 138 of the Police Services Act do not extend to searches or seizures in the situation that confronted Carpenter. As earlier noted, this statutory silence forecloses resort to any claim to a common law power to do what the Legislature has chosen not to authorize: Figueiras v. Toronto (Police Services Board), supra. Indeed, Crown counsel, with characteristic fairness, concedes that, in the presenting circumstances, Carpenter was not authorized to confiscate the defendant's phone. While the common law authorizes a search for evidence incident to a lawful arrest, it does not authorize an arrest incident to an unlawful search or seizure – which, in the end, is a not unreasonable construction of what ultimately transpired.
[91] The defendant's verbal refusal to surrender his phone is mirrored in the accompanying video imagery which, in my view, captures, if obliquely, the scuffle between Carpenter and the defendant as the officer tries to physically remove the phone from the defendant's possession while the defendant endeavours to maintain control of it. Absent legal authority, Carpenter's effort to seize the phone from the unyielding defendant arguably amounts to both an attempted theft and an assault. The defendant was entitled to resist Carpenter's overreach.
[92] To prevent Carpenter from seizing his phone, the defendant tossed it out the foyer door and at or toward his sister in the hallway. The defendant, as I have found, did not abandon or discard the phone. He was, rather, trying to safeguard it by removing it from Carpenter's unauthorized grasp and transferring its possession to a person he trusted. Carpenter, however, continued his pursuit of the phone, rushing to recover it from the hallway floor at the same time as did the defendant's sister, the intended recipient. Carpenter never attempted to justify his persistent effort to seize the phone on a theory of abandonment but, I infer, proceeded on the same misguided sense of authority that led to his initial confiscation demands.
[93] At this point, the defendant began to move in the direction of Carpenter and his sister. Cummins feared the defendant was going to "assault" Carpenter, but it is Cummins' appreciation of the nature of the defendant's intended conduct rather than his speculation as to its legal character that is here of significance. Cummins did not fear that the defendant was going to strike Carpenter but, rather, that he was going to grab the back of the officer's vest or sweater. I read Cummins to apprehend, as do I, that the defendant's intention was to try and restrain Carpenter from seizing his phone, coming into physical conflict with his sister, or both. The defendant's intended application of force was focused, proportionate and reasonable. Indeed, I am not persuaded that the defendant's conduct at this stage was, in all the circumstances, other than a legitimate exercise in defence of property or another person, pursuant, respectively, to ss. 35 and 34 of the Code. In any event, the Crown theory respecting the alleged assaults on Carpenter, as I understand it, is premised on the events in the foyer once the defendant is taken to the ground and not on his efforts to impede Carpenter's pursuit of his cell phone in the hallway.
[94] Cummins, as noted earlier, is a much larger man than is Onigbinde-Bey. He pressed the defendant chest-first into a wall in the foyer. He told the defendant to "relax". He did not express words of arrest. He did not offer the defendant any verbal explanation for his detention. The defendant tried to evade Cummins' grasp and enter the hallway, driven, in my view, by his continuing legitimate concerns for safety of his sister and the security of his cell phone. Cummins says he had "no choice" but to "take [the defendant] to the ground" as he wished "to prevent any further potential threats to members of the public and the court staff". Other than verbal affronts (none of them menacing), the only physical "threats" attributed to the defendant had been his proportionate, if frustrated, effort to restrain Carpenter from seizing his phone or physically clashing with his sister.
[95] Cummins, in my view, had an alternative "choice", one prescribed by statute. If he truly feared that the defendant "pose[d] a security risk", he need simply have demanded that Onigbinde-Bey leave the courthouse. Had the defendant not done so "immediately", Cummins was then authorized to arrest him. Cummins did act within the statutory protocol. He did not demand the defendant leave. He did not afford the defendant an opportunity to comply with his demand. He did not wait for some evidence of non-compliance. He did not arrest the defendant. And if he had, he failed to honour his statutory "duty" to "give notice to [him] … of the reason for the arrest": Provincial Offences Act, R.S.O. 1990, c. P.33. Instead, Cummins forcefully, and without notice or explanation, took him to the ground. I accept that the defendant was resisting Cummins' efforts to confine him in the foyer, but, again, he was entitled to use reasonable force to repel the officer's unjustified detention.
[96] Having taken the defendant to the floor of the foyer, Cummins, assisted by Carpenter and Loiselle, then restrained and cuffed the defendant. Up until the moment he was kneed in the face by Loiselle, the defendant resisted the police efforts to confine him. In my view, the defendant was entitled to use reasonable force to repel the officer's unwarranted detention. Only sometime after he was lifted from the floor was the defendant arrested – and not for any precursor offence but, rather, solely for those arising from his efforts to resist his unlawful apprehension in the foyer.
[97] In the end, I am not satisfied that the Carpenter and Loiselle were engaged in the "lawful arrest" of the defendant at the time they detained him in the foyer. Loiselle, as I read the evidence, cannot be said to have acted in bad faith as he was only assisting the court officers in effecting what he mistakenly understood was a lawful arrest. As is clear from his evidence, Loiselle had no settled idea of why the courts officers were endeavouring to detain the defendant and no independent basis to effect an arrest. His authority to forcibly detain the defendant derives entirely from and attracts no greater legal grace than that of the officers he was assisting. As I find that neither Carpenter nor Cummins had lawful power to arrest or otherwise detain the defendant in the presenting circumstances or in the manner described, Loiselle's arrest has no greater claim to legal sanction.
[98] A statutory regime prescribes the conditions for a lawful arrest in a courthouse. The officers' conduct fell outside these statutory dictates. Accordingly, their purported arrest of the defendant was not "lawful", an essential condition for the offence of "assaulting a peace officer". As said of courtroom searches in R. v. Gillespie, supra, the police detention of the defendant is "illegal when carried out without statutory authority". For the same reason, Carpenter and Loiselle were not then "engaged in the execution of [their] duty". In the result, the defendant's efforts to resist the officers were not assaults but, rather, justifiable attempts to repel the unlawful use of physical force by agents of the state. In the result, I find him not guilty of all four counts.
[99] I add only this: Context aside, the conduct at direct issue – that which immediately preceded the alleged assaults – occupied a very brief passage of time, likely no more than two minutes from Carpenter's foyer door exchange with the defendant to the moment Cummins takes him to the foyer floor. Each segment has been subject to detailed testimony and review: the initial doorway exchange; the struggle for the phone; its flight to the hallway floor; the competition for its possession; the defendant's move toward the potential combatants; his containment by Cummins against the foyer wall; and, finally, Cummins grounding of the defendant as several other officer rush to restrain and cuff him. While subject to compartmentalized analysis, it is most helpful to recognize that each segment forms one part of a continuous, single transaction. There was undoubtedly tension between the defendant and the officers. It was, on my reading, largely theatrical. No threat of interpersonal conflict emerged until Carpenter tipped the first domino by trying, verbally and then physically, to seize the defendant's cell phone. Carpenter's conduct was outside the compass of his authority, as was his subsequent pursuit of the phone into the hallway. What followed was, unfortunately, almost inevitable. The defendant's response, while not perfectly measured, was predictable and, in all the circumstances, legally sanctioned or, at least, excusable. Had Carpenter, and Cummins in his wake, complied with the enforcement regime prescribed by the Police Services Act, the ensuing fracas may well have been avoided or, if not, the officers would have been empowered to effect the defendant's lawful arrest.
D. CONCLUSION
[100] An acquittal is not necessarily a vindication. In the end, it is the rule of law and the "golden thread" – the presumption of innocence and the Crown's failure to rebut this fundamental principle – that results in a verdict of 'not guilty'. This, of course, is how it should be. It is also, I expect, the hard-earned lesson that the defendant, a plainly intelligent man, will ultimately take away from this trial.
Released on June 16, 2017
Justice Melvyn Green