Court File and Parties

Ontario Court of Justice

Citation: R. v. Nadon, 2017 ONCJ 581

Date: May 1, 2017

Court File No.: 3911-998-15-C422 Location: Cornwall, Ontario

Between:

Her Majesty the Queen

— and —

Richard Nadon

Before: Justice D.A. Kinsella

Heard: March 8, 2017

Reasons for Judgment Released: May 1, 2017

Counsel

For the Crown: Aquilas Kapend

For the Defendant: D.W. Johnson

Reasons for Judgment

KINSELLA J.:

Introduction

[1] In February of 2015, someone posted a picture on Tumblr, a social networking service. This picture of a striped dress went viral when viewers disagreed over whether the colour of the dress was black and blue or white and gold. In the first week after the image was posted, more than 10 million tweets mentioned the dress, using hashtags such as "#thedress", "#whiteandgold" and "#blackandblue." Although the actual colour of the dress was confirmed to be blue and black, the phenomenon generated by the debate led to greater interest about scientific investigation into neuroscience and vision science, resulting in a number of papers published in reputable science journals.

[2] This story of a simple Internet meme has something to tell us about the inherent frailty of human perception. These frailties are not always well-understood in the often black and white world of the criminal justice system.

[3] Judges are taught to be cognizant of the importance of assessing credibility and reliability. We have clear and cogent guidance from our appellate courts about these concepts. Less clear, however, is how a trial judge is to assess evidence where all of the witnesses appear to be reliable insofar as there are no obvious impediments in their ability to recount what they saw and also appear to be telling the truth as they perceive it. What is the trier of fact to do when those truths are diametrically opposite? Both sides cannot possibly be telling the truth, can they? And if they are in fact recounting the truth as they recall it, how can a court reconcile this? The answer may reside in the simple observation that what is "true" may sometimes be a matter of perception.

The Evidence

[4] Richard Nadon is charged "that on or about the 27th day of February 2015 he did assault Justin Wheeler, a peace officer for the Cornwall Community Police Service ("CCPS"), engaged in the execution of his duty, contrary to section 270(1)(a) of the Criminal Code". This was a relatively brief trial with all evidence being heard on March 8, 2017. The Crown called two witnesses, Cst. Justin Wheeler and Cst. Nygel Pelletier. The defence called one witness, Cynthia Kennedy.

[5] There are a few facts that the parties appear to be able to agree on. Shortly after 9 pm on February 27, 2015 a call to 911 was made from a residence at 316 Marlborough Street in Cornwall, ON. The caller asked for ambulance assistance because a male at the residence was having a seizure; however, because of some apparent chaos or confusion at the location, emergency medical services requested police assistance to ensure that the situation was safe for ambulance personnel to attend.

[6] At 9:24 pm Cst. Justin Wheeler and Cst. Nygel Pelletier of the CCPS arrived in separate vehicles at 316 Marlborough St, a multi-unit complex. Although it does not appear as if a unit number was provided, the officers determined that their assistance was needed in the lower unit since they could hear loud noises coming from that location. They were let into the residence by someone and made their way to the kitchen, where a male identified as Terry Derouchie was laying on the floor being attended to by his wife. There were a number of other persons present, including the accused Mr. Nadon. Mr. Nadon was one of the persons who lived at that residence, although that fact was not known at least to Cst. Wheeler at the time.

[7] In order to create room and facilitate the ambulance personnel's access to the small kitchen, all people were asked to leave the kitchen area. Mr. Nadon did leave and go into an adjacent area, although he was upset about this. He had been drinking alcohol. There appears to be no dispute that Mr. Nadon conveyed his displeasure loudly and repeatedly to Cst. Wheeler and that, eventually, he was placed under arrest at 9:42 pm for assaulting the officer. There is no evidence that Mr. Nadon ever asked the police to leave the residence.

[8] Otherwise, there is much in dispute, even as between Constables Wheeler and Pelletier, and certainly between the police and Ms. Kennedy. While some of these discrepancies were on relatively minor points, others were on matters that go to the heart of the issue that I must decide.

Constable Wheeler's Testimony

[9] Cst. Wheeler's testimony was as follows:

• He, Cst. Pelletier, and the ambulance personnel all arrived at the same time;
• They entered into the residence through the front door which led to a living room. Adjacent to the living room was a bedroom, a bathroom and then the kitchen was accessed by walking through the living room;
• He denied that either he or Cst. Pelletier had nudged or kicked at Mr. Derouchie when he was on the ground or of saying words to the effect of "C'mon Terry I know you are faking";
• He concluded that everyone in the residence, including Cynthia Kennedy, was intoxicated largely because of the large quantity of alcohol visible in the residence and the strong smell of alcohol;
• The altercation with Mr. Nadon started in a small bedroom located off of the living room, with Mr. Nadon insisting he wanted to leave to go to the kitchen to get a beer and Cst. Wheeler standing in the bedroom doorway to prevent this. As Mr. Nadon continued to advance, Cst. Wheeler backed up so that both eventually ended up in the living room area;
• During the altercation, Mr. Nadon got extremely close to him, approximately 2 – 6 inches away;
• While this altercation was on-going, Cst. Pelletier was standing either immediately behind him or next to him in the living room;
• Ms. Kennedy and another female were standing about 6 – 8 feet away during the incident, and Ms. Kennedy was screaming and yelling at Mr. Nadon telling him to calm down;
• Mr. Nadon was screaming, yelling and cursing and pounding his fists on his chest;
• He is taller than Mr. Nadon;
• Eventually Mr. Nadon lunged at him in an attempt to head butt him, an attempt which failed;
• He pushed Mr. Nadon back, causing him to fall backwards onto the ground, at which time he was arrested. He later clarified that Mr. Nadon had actually fallen onto a couch;
• While the officers were in the process of arresting Mr. Nadon, he continued to scream, yell and curse. He also clenched his fists and twisted his body as they were handcuffing him; and
• Mr. Nadon did not have any injuries on him at the time he was arrested. Later, while he was in Cst. Wheeler's cruiser, he struck his own head on the vehicle partition resulting in a bump above his eye.

Constable Pelletier's Testimony

[10] Cst. Pelletier testified as follows:

• He and Cst. Wheeler arrived at the residence first, and ambulance arrived some time after;
• They entered in through the front door and he described the residence as a long "railway car" type of unit where you walked through one room to get to another. The first room to the left when you came in was a living room, to the right was an open room which had a pull-out couch on the left and off of that room was a bedroom and bathroom. Straight ahead from this middle room with the pull-out couch was the kitchen;
• He recognized Mr. Derouchie and his spouse and was aware that Mr. Derouchie had had a history of seizures as he had previously accompanied ambulance to Mr. Derouchie's residence;
• He adamantly denied nudging or kicking Mr. Derouchie with his boot while suggesting that he was "faking", especially in light of his previous history with Mr. Derouchie;
• He remained in the kitchen while Cst. Wheeler went into the adjacent room. The kitchen was very small and a large statue of some kind was blocking his way;
• Despite this, he could see Mr. Nadon and Cst Wheeler and saw Mr. Nadon get into Cst. Wheeler's personal space in an aggressive manner, yelling and banging his chest. He believes Mr. Nadon got quite close to Cst. Wheeler, perhaps as close as two feet, although at one point he was close enough that their noses touched;
• He saw Mr. Nadon's head go forward in a head butt motion in the direction of Cst. Wheeler's face, noting that neither Mr. Nadon's body nor his torso moved, only his head moved back and forward;
• He then saw Cst. Wheeler push Mr. Nadon away causing him to fall onto a pull-out bed in middle room;
• He then assisted in arresting Mr. Nadon, who did not resist or struggle. Mr. Nadon had a broken blood vessel in his right eye which he did not think happened as a result of their interaction;
• He spoke with Ms. Kennedy, whom he did not believe was intoxicated. He found her to be co-operative and polite. He recalled that she was present during the altercation and had been trying to calm Mr. Nadon down but did not believe she had gotten in-between Mr. Nadon and Cst. Wheeler;
• He did not recall Mr. Nadon expressing any concern for Mr. Derouchie, but did remember that he was upset because he could not get to the kitchen to get another beer; and
• He is shorter than Cst. Wheeler, whom he believed was a few inches taller than Mr. Nadon.

Cynthia Kennedy's Testimony

[11] Cynthia Kennedy testified as follows:

• She has known Mr. Nadon for about fifteen years, and they had been in a dating relationship at the time of this incident, although that had since ended;
• She arrived at 316 Marlborough St, the residence Mr. Nadon shared with Eddie Ladouceur, shortly after 9 pm. She had not had anything to drink, nor did she drink anything when she arrived;
• About 10 minutes after she arrived, Mr. Derouchie suffered a seizure at the kitchen table and Debbie Petzak called 911 for medical assistance. Because there was "noise" police were sent first;
• Two officers arrived and were let in through the back door by Ms. Petzak. One of those officers, whom she described as shorter with a beard, went over to Mr. Derouchie and nudged him with his boot, telling him to "get up and stop faking";
• This upset Mr. Nadon, who did not want to leave the kitchen when they were asked to as he wanted to stay with his friend;
• They moved out of the kitchen into the adjacent room, which she described as a dining room which was being used as a family room and which had a hide-a-bed in it;
• She, Mr. Nadon and Cst. Wheeler stayed in that dining room area, while Ms. Tiffany Hart went to the living room. She denied that she and Ms. Hart ever took Mr. Nadon into a bedroom;
• Mr. Nadon was upset that he could not get into the kitchen to be with his friend, and was getting "ornery" about what had happened. Since she knew what he could be like she got in-between Mr. Nadon and Cst. Wheeler, who were bickering at each other, to try and calm things down;
• While she agreed that Mr. Nadon was upset and angry, she was adamant that he did not have any physical contact with Cst. Wheeler as she was between them the whole time;
• In chief she testified that she had "turned around" and saw three officers had Mr. Nadon pinned down on the couch. In cross-examination she clarified that it was two officers who had pinned Mr. Nadon down on the couch, and a third man in a uniform was standing nearby. She clarified that that third male could have been an ambulance attendant;
• When the two officers tried to arrest Mr. Nadon he complied but they threw him down, and during the course of this scuffle she was pushed or knocked out of the way;
• She did not see the shorter officer with the beard enter into the family room until after Cst. Wheeler had put his hand on Mr. Nadon to arrest him, nor could she see into the kitchen from where she was standing; and
• She testified that she was five feet four inches tall and that she came to just below Mr. Nadon's chin when standing.

Issues and the Law

[12] There are four issues which I must decide. First, was the rule in Browne v. Dunn breached by counsel for Mr. Nadon and, if so, what use can the court make of that? Second, was Constable Justin Wheeler acting in the lawful course of his duties when the altercation with Mr. Nadon occurred? Third, if found as a fact, would the act of Mr. Nadon in attempting to head butt Constable Wheeler amount to an assault as defined in section 265(1)(b)? Fourth, provided the answers to issues three and four are resolved in the affirmative, has the Crown proven its case beyond a reasonable doubt?

The Rule in Browne v. Dunn

[13] In her submissions, Crown counsel suggested that the rule in Browne v. Dunn had been breached by the failure on the part of counsel for Mr. Nadon to put to the Crown witnesses certain facts upon which he intended to impeach them. Specifically she alleges that counsel for Mr. Nadon failed to cross-examine the officers on Ms. Kennedy's evidence that she, Mr. Nadon and Ms. Hart never went into the bedroom area; that Ms. Hart was not in the room when the altercation occurred; and that Ms. Kennedy was pushed out of the way when the police arrested Mr. Nadon. Counsel for the Crown did not raise this issue in cross-examination of Ms. Kennedy nor did she seek to recall the officers to clarify these issues.

[14] The rule in Browne v. Dunn (1893) 6 R. 67 (H.L.) states that a party who seeks to impeach a witness on a particular issue must direct the witness to the issue in cross-examination to give the witness an opportunity to relate his/her side of the story. The purpose of the rule is to provide fairness to witnesses and parties. But it is not a fixed rule, and the extent of its application is within the discretion of the trial judge, depending upon the circumstances of the case.

[15] Counsel is not required to question a prosecution witness on every detail that the defence evidence will contradict (R. v. S.H., 2010 ONCA 515). As noted recently by the Ontario Court of Appeal in R. v. Quansah:

Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness's story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney (1993) 87 C.C.C. (3d) 363 (Ont. C.A.), at pp. 375-376; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.

[16] Failure to put certain aspects of an accused's evidence to a Crown witness in cross-examination may give rise to an adverse inference which could impact on the assessment of the credibility of the defence evidence. Such an adverse inference, however, is only justified when the evidence not put to the witnesses relates to crucial or essential matters (R. v. Hilton, 2016 ABCA 397).

[17] Timely objection by the aggrieved party is another factor to be considered by the trial judge in considering the suitable remedy. Counsel, and particularly Crown counsel, should not "lie in the weeds" and only raise the issue during submissions absent a good explanation. Failure to raise the issue at a time in the proceedings which would allow for a recall of the witness "may mean that the aggrieved party may not get the benefit of a Browne v. Dunn instruction in the charge to the jury…" (R. v. Quansah, supra, at paragraphs 120 & 124).

[18] In this case, I am satisfied that counsel for Mr. Nadon did not intentionally fail to put certain details about Ms. Kennedy's evidence to the police officers in order to obtain some tactical advantage. In my view, the difficulty stems in part from the differing descriptions of the various rooms given by the witnesses. For example, Cst. Wheeler referred to the room immediately adjacent to the kitchen as a "living room", whereas Cst. Pelletier described it as a "middle room" with a pull-out couch separate from the living room. Ms. Kennedy described the room immediately adjacent to the kitchen as a dining room which was being used as a family room. As such, any failure to put to the officers which rooms Ms. Kennedy and Ms. Hart were in can be attributed to a difference in opinion as to what those rooms were.

[19] Furthermore, in my view the exact location of Ms. Hart in the residence at the time of the altercation was not something relevant to any essential issue in the case. This is particularly true in light of the fact that Ms. Hart was not called as a witness in these proceedings.

[20] As for the Crown's submission that counsel failed to put to the police witnesses Ms. Kennedy's evidence that she was pushed out of the way during the arrest, I would note that a review of the transcript reveals that both officers were asked questioned about Ms. Kennedy's location during the altercation, and specifically how close she might have been. Although their testimony differed somewhat, both officers testified to their recollection that she was standing some distance away. Once both officers testified that, to their recollection, Ms. Kennedy was not standing within arms-length during the altercation, I cannot see how a failure to ask whether or not she might have been pushed out of the way during the arrest runs afoul of the rule in Browne v. Dunn.

Engaged in the Lawful Execution of Duty

[21] The offence of assault peace officer requires the Crown to prove:

i. An assault on a person;

ii. That person must be a public officer or a peace officer; and

iii. The officer must be, at the time of the assault, engaged in the execution of his duty.

[22] The phrase "engaged in the execution of his duty" requires that a police officer be lawfully performing some particular duty. An officer will be engaged in the lawful execution of his duty if: (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law; and (b) provided such conduct, albeit within the general scope of such a duty, does not involve an unjustifiable use of powers associated with the duty (R. v. Dedman, [1985] 2 S.C.R. 2, at paragraph 66). The courts have recognized that the police have a duty at common law and at statute to preserve the peace (R. v. Stenning, [1970] S.C.R. 631; Police Services Act, R.S.O. 1990, c. P. 15, s. 42(1)(a)).

[23] Counsel for Mr. Nadon submits that Constable Wheeler was not acting in the lawful execution of his duty at the time of the altercation. Counsel's submissions appear to be based on two assertions: that there had been no 911 call for police service and that the police were not invited into the home by the homeowner.

[24] In support of his position, he relies on two decisions. In the case of R. v. Plamondon, [1997] B.C.J. No. 2757 (B.C.C.A.), police who were responding to a call of an alleged assault entered uninvited into a trailer belong to the accused. The purpose of that entry was to investigate the alleged assault, an act not justified under any statute or common law authority. As such, while Mr. Plamondon was found not guilty of assaulting a peace officer, he was found guilty of the lesser included offence of assault.

[25] In R. v. Barrow, [2011] O.J. No. 2067 (O.C.J.), police were called to a women's shelter to remove an unwanted party, Ms. Barrow. Although the officer had the authority to arrest Ms. Barrow under the Trespass to Property Act, the court found as fact that the officer's intention in putting her hands on Ms. Barrow was not to arrest her but merely to forcibly remove her from the property. This act was not justified under any statute or common law and as such the officer was not in the lawful execution of her duty at the time of the incident and Ms. Barrow was not found guilty of the offence of assaulting a peace officer.

[26] In the case before me, the police were asked to attend the residence to assist ambulance personnel who had received a 911 call but, due to the perceived chaotic nature of the scene, requested police service. Public policy clearly requires that the police be given the authority to investigate 911 calls, but whether they may enter a dwelling house in the course of such an investigation depends on the circumstances of each case (see R. v. Godoy, [1999] 1 S.C.R. 311).

[27] A further factor to be considered in this case is the concept of an "implied licence to knock". Absent an express exclusion, there exists an implied licence to the public (including the police), engaged in a legitimate purpose, to approach and knock on the door of a dwelling house (see R. v. Lotozky, [2006] O.J. No. 2516 (Ont. C.A.)).

[28] There is no dispute that the police were invited into the home, even though there is some absence of information as to who let them in. I find that, once in the home, the police were acting within the scope of their duty specifically to keep the peace when they asked people to leave the kitchen and prevented people from re-entering the kitchen in order to allow emergency personnel sufficient room to do their job. At the time of the alleged altercation, therefore, Constable Wheeler was acting in the lawful execution of his duty. Since there is no evidence that the police were ever asked to leave the home, I do not need to address the issue of whether or not a failure to leave when requested resulted in an unjustifiable exercise of their powers.

Assault

[29] Section 265(1) of the Criminal Code reads as follows:

A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs...

For the purposes of this ruling it is only Section 265(1)(a) and (b) that apply.

[30] Section 265(1)(a) and (b) does not create two separate offences but simply defines two ways of committing the same offence. (R. v. MacKay, 2005 SCC 79, [2005] 3 S.C.R. 725).

[31] In R. v. Colbourne (1991) 66 C.C.C. (3d) 235 (Q.C.A.) the court found that an assault under s. 265(1)(b) could be committed by the mere fact of attempting or threatening by any act to apply force to another person if the potential wrongdoer had the present ability to effect his purpose. Justice Proulx noted: "Accordingly, to attempt to hit a person from the rear but to miss him or to be interrupted by a third party from doing so constitutes assault (and not an attempt) within the meaning of para. (b)…" (at pg. 251).

[32] It is not necessary to apply force to another person to commit an assault. All that is necessary is that the accused act in a way which could lead another person to believe upon reasonable grounds that a battery would be committed upon him (R. v. Melarangi, [1992] O.J. No. 4178 (Gen. Div.)).

[33] I am satisfied that, if the evidence establishes beyond a reasonable doubt that Mr. Nadon attempted to head butt Constable Wheeler, that action would amount to an assault as defined in section 265(1)(b).

Principles in Assessing Credibility and Reliability

[34] The purpose of a criminal trial is to determine whether the Crown has proved the guilt of the accused on the specific charges alleged beyond a reasonable doubt; it is not a "credibility contest". Where there is conflicting evidence about what occurred, it is wrong to decide a criminal case simply by concluding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accused beyond a reasonable doubt.

[35] In a case where the accused has chosen to call evidence, I must consider the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 at pp. 757-758 when I determine whether the Crown has proven Mr. Nadon's guilt beyond a reasonable doubt:

1. If I believe the evidence of the accused that he did not commit the offence with which he is charged, I must find him not guilty.

2. Even if I do not believe the evidence that he did not commit this offence, if his evidence leaves me with a reasonable doubt of his guilt, I must find him not guilty of this offence.

3. Even if the evidence of the accused does not leave me with any reasonable doubt as to his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

[36] A trial judge is required to apply the well-known principles set out in R. v. W.(D.), not only in relation to an accused's testimony but also to all potentially exculpatory evidence (R. v. Perkins, 2016 ONCA 588, at paragraph 36).

[37] A trial judge must apply the same standard of scrutiny in her assessment of the accused's evidence and credibility as when considering the evidence and credibility of the Crown's witnesses and evidence including police testimony. There is no presumption of truthfulness applied to police evidence (R. v. Chanmany, 2016 ONCA 576).

[38] Credibility and reliability are not the same. Credibility concerns the veracity of a witness; reliability involves the accuracy of the witness's testimony. Accuracy engages a consideration of the ability of the witness to observe, recall and recount. A witness who is not credible on a point cannot be reliable. The converse, however, is not true. A credible witness can nonetheless be unreliable (R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at paragraphs 41 & 42).

Application of Law to Facts

[39] As I observed at the outset of this decision, there is nothing in the evidence that I heard which would lead me to conclude that any of the witnesses were completely lacking in credibility such that I could discount their testimony. I conclude that they were recounting what they believed to have happened.

[40] It is the reliability of all of the witnesses that gives me some pause. I have already indicated that they cannot all be correct in their account of what happened. Since there is no reason to doubt their credibility, the only remaining explanation for the discrepancies is reliability.

[41] On the ability of the witnesses to observe, recall and recount, I note that this incident happened in a very confined space. Although Constable Pelletier testified that he could see what was occurring between Constable Wheeler and Mr. Nadon, he also testified that he was standing behind Constable Wheeler (who was taller than him). Since Mr. Nadon is shorter than Constable Wheeler, it is more likely that Constable Pelletier did not have a clear view of exactly what was going on especially given the dynamic nature of the incident, wherein both Constable Wheeler and Mr. Nadon were moving.

[42] The same conclusion can be drawn as it relates to Ms. Kennedy's testimony. She is significantly shorter than Mr. Nadon and Constable Wheeler and was also, according to her evidence (which I accept), at least in close physical proximity to them. It is also reasonable to conclude, therefore, that she did not see the entirety of the interaction between Mr. Nadon and Constable Wheeler.

[43] I accept Constable Wheeler's testimony that he believes that Mr. Nadon made a gesture while he was angry and upset that the officer interpreted as a head-butt motion. However, Constable Wheeler's observations must be analyzed through the lens of objectivity. Constable Wheeler quickly concluded that everyone in the home was drunk, although it is clear that at least as that conclusion applied to Ms. Kennedy, he was wrong. He also quickly identified Mr. Nadon as a problem in the residence. In other words, he was primed to expect difficulties from Mr. Nadon. This may also explain why he believed that Mr. Nadon continued to struggle after the arrest, where the evidence of Constable Pelletier and Ms. Kennedy (which I accept) was that he did not.

[44] I must also take into account the accuracy of Constable Wheeler's testimony. In addition to being wrong about matters noted above, he was also wrong about the fact that ambulance arrived at the same time the officers did; about the lay-out of the residence (he testified that bedroom was off of the living room, when the evidence was clear that the living room and kitchen were separated by another middle room, referred to as both a dining room and a family room); and failed to note that Mr. Nadon had an injury prior to being placed in the cruiser.

[45] Similarly, the testimony of Ms. Kennedy must also be analyzed through her lens of objectivity. She testified that an officer who appears to be Constable Pelletier approached Mr. Derouchie while he was on the ground and pushed on his head with the tip of his boot, telling him to "stop faking it" or words to that effect. While I can accept that she believes this occurred, I cannot find it as a fact and accept Constable Pelletier's evidence that this did not occur. Constable Pelletier's adamant rejection of the suggestion that he had kicked or nudged Mr. Derouchie was sincere and genuine, and given that he knew Mr. Derouchie had a history of seizures, I do not believe he would have done this. It is entirely possible that, in the chaos of what was going on, she saw Constable Pelletier approach Mr. Derouchie, may have believed his foot got close to him, and may have heard someone say something about "faking it".

[46] Once Ms. Kennedy formed the belief that the police had behaved towards Mr. Derouchie in a way which she felt was inappropriate, it is reasonable to conclude that that perception coloured her view of the balance of her interaction with the police. I cannot accept her testimony, for example, that there was no possible way that there could have been ANY physical contact between Mr. Nadon and Constable Wheeler, and can only conclude that her perceptions were coloured by her views.

[47] What I am left with is this. I find that Mr. Nadon was upset and angry, although I cannot find as a fact that his upset and anger was solely related to one issue (wanting to get alcohol) or another (concern about his friend Mr. Derouchie). I find that he was agitated and volatile, and was advancing towards Constable Wheeler in an aggressive manner. I cannot, however, find that he intentionally attempted to head-butt the officer.

Conclusion

[48] Mr. Nadon is found not guilty of the offence of assaulting a peace officer.

Released: May 1, 2017

Signed: Justice D.A. Kinsella